Health Care Complaints Commission v Goyer - [2019] NSWCATOD 121 - NSWCATOD 2019 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Goyer

[2019] NSWCATOD 121

NCAT Occupational|2019-04-11|Before: Boland J

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2019-04-11

Before

Boland J

Source

Original judgment source is linked above.

Judgment (262 paragraphs)

[1]

Introduction

These reasons consider twenty-six complaints of asserted unsatisfactory professional conduct and one complaint of professional misconduct agitated by the Health Care Complaints Commission (the HCCC) against a medical practitioner, Dr Thomas Goyer (the practitioner).
The complaints relate to a period in 2015 to 2017 when the practitioner was the Medical Director of a business operated under the name Medical Weight Loss Institute (MWI). MWI provided its services using a model of "telemedicine". Patients were not seen in person but conferred with MWI staff by telephone or "online". The complaints agitated by the HCCC involve the practitioner's treatment and prescribing for 25 patients who were seeking to lose weight. The practitioner's prescribing included prescriptions for compounded phentermine capsules, diethylpropion capsules, sublingual drops of Human Chorionic Gonadotrophin (hCG) as well as injectable hCG. It is asserted by the HCCC that the practitioner is guilty of both unsatisfactory professional conduct and professional misconduct, as defined in the Health Practitioner Regulation National Law (the National Law).
It is also asserted by the HCCC that the practitioner failed to maintain proper clinical records as required under the Health Practitioner Regulation (NSW) Regulation 2010 (repealed) (the regulation).
The practitioner admits, in respect of some of the complaints, that he is guilty of unsatisfactory professional conduct. He does not admit he is guilty of professional misconduct.
For the reasons which follow, we find the practitioner is guilty of professional misconduct as defined in the National Law.

[2]

Medical Weight Loss Institute

A company, GTC Medical Pty Ltd (the company) was incorporated in 2015. The practitioner was one of three directors and shareholders of the company. The company was the registered proprietor of the business name Medical Weight Loss Institute. The company was placed into voluntary liquidation in 2017.
The practitioner was the Medical Director of MWI from its inception. The practitioner asserts MWI employed "consultants", nurses, dieticians, and personal trainers. Clients of MWI responded to advertisements placed in newspapers. The practitioner asserts clients first spoke to a consultant, that they then had a consultation with a nurse who obtained a medical history, and that he then ordered blood tests for the client. After receipt of a client's blood tests, the practitioner says he had a telephone consultation with the client at which he took a history, and then prescribed for the client. The client received an information booklet and was told if he/she had adverse symptoms from the medication prescribed to contact MWI. The practitioner asserts the clients received follow up during the program from consultants, who may be a personal trainer or a dietician.
The practitioner asserts that all medications were provided directly to clients from one of two compounding pharmacists ("Compounded", Alexandria and ACP Pharmacy, Taren Point). He further asserts all clients received an "information book" [Transcript 14 March 2019 p 54]. He also says that "we did provide a full consumer information sheet with medication information". We pause to note that the practitioner did not adduce any evidence before us of the information book or relevant information sheets. However, some material which may answer the description of an information sheet was annexed to a statement provided by one patient (Patient S Ex A Tab 9). We note that a number of the patients the subject of the complaint received medication directly from the compounding pharmacy, not MWI.
A Pharmaceutical Regulatory Unit (PRU) Investigation Report dated 22 June 2016 notes an MWI employee described MWI's operation at Potts Point to Mr Aleksandar Gavrilovic (Mr Gavrilovic) as a "call centre". The employee, Ms Jodie Broadbent, told Mr Gavrilovic that MWI consultants provide information to customers and keep records using "infusion" software. Ms Broadbent is also recorded as explaining that the consultants generated prescriptions within this office, which were printed and later signed by the practitioner.

[3]

The practitioner

The practitioner's statement only briefly deals with his professional career. His curriculum vitae, which is annexed to his statement, contains a very truncated professional history. The practitioner's professional history is explored by the Medical Council of NSW (the Council) in the reasons following a hearing under s 150 of the National Law and we repeat some of the material in those reasons about the practitioner's qualifications and experience.
Between 1997 to 2000 the practitioner says he undertook studies at JCU (James Cook University).
During 2001 to 2004 the practitioner engaged in medical studies at the University of Queensland. He obtained the degrees of MB.BS from that university in 2004.
After his graduation, the practitioner engaged in service in the Australian Army.
The practitioner was granted conditional registration on 16 January 2006. His registration was subject to the condition that he undertake an internship from 16 January 2006 to 21 January 2007. Between 27 August 2007 to 19 February 2008 the practitioner was not registered. From 20 February 2008 to 2 November 2008 the practitioner was re-registered as an intern. From 3 November 2008 to 20 November 2008 the practitioner was not registered. From 21 November 2008 the practitioner was granted general registration in New South Wales. Since 22 March 2017 the practitioner's registration has been subject to conditions including a condition limiting his practice to minor (non-surgical) cosmetic medical procedures.
In 2006 the practitioner commenced an internship at Hornsby Hospital. After encountering professional difficulties at that hospital which resulted in referrals to the then Medical Board of NSW he thereafter completed his internship at John Hunter Hospital. The practitioner determined to pursue a career in non-surgical cosmetic medicine.
Between 2009 and 2015 the practitioner worked on a part-time basis at Concept Cosmetic Medicine with Dr Neal Hamilton. During the same period he also worked on an unspecified part-time basis at the Australian Medical Institute (AMI). AMI provided telemedicine (consultations by telephone) for men experiencing conditions such as erectile dysfunction and premature ejaculation. We note that the practitioner does not list his work at AMI in his curriculum vitae.
Between 2009 to 2011 the practitioner worked at Laser Clinics Australia.
The practitioner asserts he commenced his own practice in 2010 and in 2013 set up Sydney Cosmetic Clinic.
The practitioner's curriculum vitae discloses between 2010 and 2017 he worked at Eden Laser Clinics.
In these proceedings the practitioner gave evidence that he operated the Sydney Cosmetic Clinic at a number of sites. He asserts that the Sydney Cosmetic Clinic changed its name in 2018, and he now practises at "The Skin Project" at North Sydney.
The practitioner asserts he is a Fellow of the Cosmetic Physicians College of Australia and a member of a multi-disciplinary body, the Australian Academy of Anti-Ageing Medicine.

[4]

Matters in issue

At the commencement of the hearing, Ms R Mathur (Ms Mather), the practitioner's counsel, asserted that the manner in which the HCCC set out the complaints against the practitioner, and the particulars relied on did not afford him procedural fairness. This she said was because matters alleged to fall within the definition of unsatisfactory professional conduct in s 139B (1) (a) were also relied on generally to establish a claim under s 139B (1) (l) without identification of which particulars, if any, could ground a finding of improper or unethical conduct. She further submitted that conduct falling within s 139B (1) (a) is a separate and distinct category of unsatisfactory professional conduct to that referred to in (l) having regard to the word "other" in that definition.
Ms Mathur also noted the criticism by Basten JA in Fraser v Health Care Complaints Commission [2013] NSWCA 421 and authorities cited in that decision of the drafting of complaints using "and/or".
After directions were made for filing of submissions on this topic, the HCCC sought and was granted leave, without objection, to rely on an amended complaint. The amended complaint deletes all references to "engagement in improper or unethical conduct relation to the practice or purported practice of medicine". We set out this history as Ms Mathur notes in her written submissions it will be relevant when we deal with the question of costs.
The practitioner was not subject to cross-examination on every particular asserted in respect of each patient, or the patient's particular records. Rather, cross-examination was directed to topics covered in the particulars alleged in respect of the majority of the patients including the asserted failure to conduct a physical examination (a matter admitted by the practitioner), the medications prescribed and methodology employed in prescribing, review of patients and record keeping issues.
We discern these proceedings raise the following issues for determination:- 1. whether the admitted particulars of unsatisfactory professional conduct are of themselves so serious as to justify findings of professional misconduct; 2. whether the records produced by the HCCC and on which reliance is placed to established a breach of the regulation are the complete records of MWI, and if not, have the HCCC satisfied the onus of proof of these complaints; and 3. whether the admitted and contested particulars, if established to the Briginshaw standard, constitute professional misconduct.

[5]

The relevant law and statutory provisions

We commence by noting that these proceedings are agitated by the HCCC under s 138B and s 139E of the National Law. Although not specified in the amended complaint we infer from the preamble to the particulars that the HCCC rely on s138B (1) (a) and in a number of instances on s 138 (1) (b) of the National Law. The relevant provisions are as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
Professional misconduct is defined in s 139E as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The relevant legal principles applied in disciplinary proceedings under the National Law are explained in Health Care Complaints Commission v Reid [2018] NSWCATOD 162 as follows: The principles relevant to disciplinary proceedings under the National Law are uncontroversial, and well-known. The overarching principles are found in s 3 and s 3A of the National Law. Section 3A, a NSW provision, mandates that in determining proceedings the Tribunal has the protection of the health and safety of the public as its paramount consideration. Unless a provision in the National Law is in conflict with, or repugnant to the practice and procedure provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) those provisions apply (see Medical Council of NSW v Lee [2017] NSWCA 282). The guiding principle of the NCAT Act requires the just, quick and cheap resolution of the real issues in dispute between the parties. Each of the parties to the proceedings is under a duty to co-operate with the Tribunal to give effect to the guiding principle (see s 36 NCAT Act). The primary purpose of protective orders made at the conclusion of proceedings is to protect the public not to punish the practitioner (see Clyne v NSW Bar Association (1960) 104 CLR 186 [1960] HCA 40). The HCCC bears the onus of proof in these proceedings. The particulars of the complaint must be established to the civil standard (on the balance of probabilities to the standard described in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34).
In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA explained: The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation.[14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience,[15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest,[16] overservicing[17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession.[18] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).[foot-notes omitted]

[6]

The admitted particulars

The practitioner in his Reply did not respond individually to the particulars of each of the complaints. However, following a case conference, Ms Mathur provided a comprehensive table setting out those particulars which are admitted and those which are not. That table was prepared before the commencement of the hearing. As noted, it was only after the completion of the evidence that the HCCC filed its amended complaint withdrawing all allegations made under s 138B (1) (l). Thus, the responses to a number of particulars may now be irrelevant for the purpose of this Stage 1 hearing if denied on the basis that the practitioner's conduct was not "other improper or unethical conduct in the practice of medicine".
Doing the best we can in these circumstances, we have treated the responses as a denial that the particular asserted under s 139B (1) (a) is established.
In her helpful written submissions Ms Mathur notes: The respondent admitted Complaint One- namely that he failed to provide appropriate care and treatment for patients at Medical Weightloss Institute (MWI) by prescribing compounded phentermine capsules; (compounded) diethylpropion capsules; and drops and injections of hCG; Complaint One 1.1,1.2,1.3: see Exhibit 1 Tab (1)(c) Reply Table. The respondent further admitted that his failure to provide proper care and treatment to patient of MWI was conduct that fell within sec 139B(1)(a) of the National Law, namely conduct that demonstrates that his knowledge, skill, judgment and care exercised was significantly below the standards expected of a practitioner of his training and experience. What flows is an admission by the respondent that his failures as alleged in Complaint One amount to unsatisfactory professional conduct. [original emphasis]
Ms Mathur goes on to submit at para 4 of the written submissions that: Were the sub-particulars not admitted in Complaint One ultimately proved- little would turn on that fact in so far as assessing the gravity of the conduct.
We agree with that concession, which is appropriately made on the practitioner's behalf.
During the course of his evidence, the practitioner referred to three articles which he said he had relied on at the time of his prescribing for patients of MWI as an evidentiary basis for his actions. Those articles were referred at the Tribunal's request to Professor Gary Wittert, the HCCC's expert. At the time the articles were sent to Professor Wittert we had already heard evidence from him via telephone. Professor Wittert overnight produced a succinct commentary on the articles which we refer to below.

[12]

Complaint 1, particular 3 3. Between 1 January 2015 and 26 February 2016 the practitioner failed to provide appropriate care and treatment for patients at MWI by prescribing approximately 319 prescriptions for sublingual drops of Human Chorionic Gonadotrophin ("hCG") (125iu/0.25 ml) and 5 prescriptions for injections of hCG (150iu/0/25ml) to assist patients with weight loss in circumstances where: (a) there was no evidence to support the use of hCG as a weight control medication; (b) the practitioner did not have sufficient knowledge and expertise in relation to treatment or management of obesity; (c) he lacked specialist qualifications in either endocrinology, gynaecology or urology; (d) he failed to consider the likely benefits and/or risks of prescribing the compounded preparation for weight loss in that he did not review: (i) peer reviewed journals; (ii) national guidelines; (iii) decision support books and programs; (iv) specialist or government supported clinical information websites; (v) produce information; (vi) Australian Register of Therapeutic Goods; (vii) The Cochrane Database; (viii) specialist colleagues who have experience in treatment or management of obesity; (e) hCG has been associated with an increased risk of strokes, coronary artery dissection due to fibromuscular hyperplasia, lower extremity DVT and pulmonary embolism and the induction of psychosis.

The practitioner admits the following particulars of Complaint One: 1. Sub-particulars (a) (c) (d) and (e) of particular 1. He states that his clinical judgment was not solely based on discussions with colleagues. 2. Sub-particulars (b) and (d) of particular 2. Again he refers in respect of sub-particular (a) that his judgment was not solely based on discussions with colleagues. 3. Sub-particulars (b) (c) (e) and (f) of particular 3. In respect of sub-paragraph (a) he says "There is some evidence on hCG and weight loss".
In written submissions, Ms P Lowson (Ms Lowson) counsel for the HCCC notes that, in respect of Complaint 1, particulars 1(b), 2(a) and 3 (d) are not pressed by the HCCC.

[13]

Discussion and conclusions Complaint 1 (referred to in the Amended Complaint as "Complaint One")

In his statement noted to be made on 31 January 2019, the practitioner at paras 21 and 22 says: "Combination pharmacotherapy treatment for obesity is not a new phenomenon. MWI used compounded medication, namely phentermine, diethylpropion and some other medications to aid weight loss, as part of a program that included advice on exercise and diet, and support. The rationale for using compounded medications was numerous. It is against regulations to compound a listed medication which can be offered as a generic. Therefore diethylpropion, although not listed, was still approved for weight loss, and therefore, was within regulations. When the stock of diethylpropion ran out within Australia (it was widely used) Phentermine was used but was compounded with other products to reduce its side affect (sic) profile. If a generic is mixed with another compound then it is within the regulations to compound it. Compounding herbal supplements was done to increase patient compliance and as an aid to wellbeing. It is recognized that patient compliance goes up when there are fewer tablets to take."
In his oral evidence the practitioner sought to explain the basis on which he had, at the time, thought it was appropriate to prescribe the drugs set out in Complaint One. He produced three papers (Treatment of Obesity With "Combination" Pharmacotherapy, Richard B Rothman MD Ph.D American Journal of Therapeutics 17, 596-603 (2010), Utility of an oral presentation of hCG Human Choriogonadotropin) for obesity treatment: A Double-Blind Study, Daniel O Belluscio MD, Leonor E Ripamonte MD; The Metabolic Syndrome. Mark F Harris, Royal Australian College of General Practitioners Vol 42 No. 8 August 2013.
In his statement, noted to be made on 31 January 2019, the practitioner says at para 16: In relation to the specific complaints, I accept that practising telemedicine and prescribing for patients without performing a physical examination is not best practice and in some instances is not good practice.
At para 19, the practitioner acknowledges that, without the ability to conduct a full physical examination, "we" were "missing out on potentially important information on the patient's current medical state. During telemedicine it can also be the case that a patient may not be as likely to share all their medical details with you as a practitioner - and looking at the medical records that were subsequently obtained, it is clear that some patients did not disclose full medical history".

[14]

Professor Gary Wittert

Professor Wittert provided a comprehensive report dated 22 October 2017. Without repeating all that Professor Wittert states in his report it is relevant that we highlight some of his key opinions. We found Professor Wittert to be an impressive witness. We had no hesitation in accepting the opinions expressed in his reports, or in his oral evidence, which we found to be soundly based.
Professor Wittert explained that Phentermine is registered on the Australian Register of Therapeutic Goods (ARTG) as an appetite suppressant and is available under two brand names, Duromine and Metermine. He notes that the guidelines for the drug recommend treatment should be initiated by physicians experienced in the treatment of obesity, although this does not preclude experienced general practitioners from prescribing.
Professor Wittert notes that Phentermine should not be combined with other appetite suppressants and that the drug is not meant to be used continuously for more than three months. Professor Wittert sets out the contraindications for prescribing Phentermine including poorly controlled hypertension.
We pause to note that while the practitioner could have prescribed Duromine he did not do so, but rather prescribed compounded medication.
Professor Wittert also set out general comments in relation to the drug Diethylpropion noting this drug has a similar activity to the pharmacologic effect of amphetamines. Professor Wittert explains that, in 2000, the European Commission withdrew licensing for the drug and at this time it was withdrawn by the sponsor in Australia. Diethylpropion was not listed on the ARTG at the time of the complaints in this matter. Professor Wittert explains "[t]here is very limited safety data relating [to] the use of Diethylpropion for longer than 3 months". Professor Wittert notes the risk of reactions to this drug when prescribed with other CNS drugs, and that "it increases the effects of agents that elevate blood pressure".
In considering the prescribing of Human Chorionic Gonadotrophin (hCG) Injections, Professor Wittert sets out an extract of a review dealing with hCG to the effect the use of hCG has absolutely no benefit as a diet agent, but is also potentially harmful. He opines that hCG "should not have been prescribed at all". He notes the drug is associated with increased risk of stroke, coronary artery dissection due to fibromuscular hyperplasia, lower extremity DVT and pulmonary embolism and the induction of psychosis.
Professor Wittert notes that there is no benefit in prescribing hCG for oral administration other than homeopathic.
Unsurprisingly, Professor Wittert opines that a face to face consultation is required before prescribing any of the drugs referred to above.
Professor Wittert deals separately with the issue of informed consent. We will discuss his opinions on that topic when dealing with the individual patient complaints.
In part 2 of his report Professor Wittert responds to questions posed by the HCCC. Professor Wittert is strongly critical of the practitioner's prescribing of Phentermine, Diethylpropion and hCG. He opines: He [the practitioner] based this decision on anecdotal evidence received during discussion with colleagues at the Australasian Academy of Antiaging Medicine (AAAM). His stated rationale for Diethylpropion is that it has a better side effect profile to Phentermine; this is risible given it has been withdrawn from most major markets because of an unfavourable side effect profile.
Professor Wittert is equally critical of the practitioner's prescribing of compounded phentermine. Significantly, Professor Wittert expressed the following views about the practitioner's prescribing: …Further, he relied on similar anecdotal evidence from AAAM and some pharmacists to determine that he would prescribed(sic) compounded phentermine on the basis it was more effective and had fewer side effects. He prescribed hCG despite the total absence of evidence of efficacy and again based on anecdote an casual discussion. This approach is far removed from the practice of evidence based medicine as one can get, rather it is the antithesis of adequate medical practice. It seems he took no steps to even read the prescribing information, basic pharmacology, or appropriate use of pharmacotherapy to manage obesity. There is no indication he sought to review any of the literature. It is unclear whether he has any training in the proper evaluation and management of obesity and does not indicate he took any steps to remediate that. Accordingly, it is unclear how he could appropriate(sic) advise patients of the risks and benefits of the treatments being offered and the alternatives available etc. There is also no evidence that I am aware of that supports the dosing frequency/interval ie 3 days alternating with some other drug or drug and vitamin preparation. The departure from accepted standards of practice invites strong criticism.[original emphasis]
During the course of the practitioner's evidence and after he said he had relied on three articles as the basis for his prescribing, Professor Wittert provided a supplementary report. In commenting on the Rothman article Professor Wittert noted that the combination of pharmacotherapy referred to in the paper is not what the practitioner prescribed, and that the data in the paper is anecdotal. He also notes it is of concern the experiments reported in the paper appear to have been conducted without the oversight of an ethics committee. Professor Wittert opines that it worrying that the practitioner considers the paper in any way "justification for what he did". He also notes that the practitioner's practice in respect of his patients at MWI fell far short of the minimum oversight provided by Dr Rothman.
In respect of the Belluscio and Ripamonte article, Professor Wittert notes a substantial conflict of interest in one of the authors. Professor Wittert reiterates that reliance on this paper as a justification for the practitioner's prescribing demonstrates a misunderstanding of how to assess evidence and a lack of insight.
In commenting on the article in Australian Family Physician Professor Wittert notes that the sort of practice in which the practitioner was engaged was not the treatment of significant multisystem disorders. Professor Wittert comments, "To me it only seems to highlight the inadequacies of his approach to care".
We think the serious departure from standards of the practitioner's prescribing is aptly summed up in the dot points in Professor Wittert's report of 13 March 2019. He opines as follows: He did not use evidence-based combination therapy He used a strange combination of alternating treatments without a clear rationale or evidence of efficacy There is no adequate evidence tendered to support his contention that he disagrees with some points (Para 25 of respondent submission dated 1/2/19) or than that he disagrees In Para 28 Dr Goyer missed the point completely. GPs who prescribed Phentermine do so while maintaining close monitoring at a minimum 3 monthly. If the standard of evidence that informs Dr Goyer's practice (Para 32 - Dr Goyer's statement of 1/2/19) is not anecdotal but informed by data then considering the nature of the data tendered - I consider then my statement is perhaps too generous and perhaps a period of retraining is required.
In his substantive report Professor Wittert expressed his view that the practitioner's prescribing departed from accepted standards and invited his strong criticism.

[17]

Complaint Two

This complaint is agitated under s 138B (1) (a) of the National Law. The background set out in respect of Complaint One is also relied on in respect of this complaint, and 25 other patients. Complaint Two is directed to the practitioner's treatment of Patient A. Each particular of the complaint is asserted in itself to justify a finding of unsatisfactory professional conduct. In the following complaints we do not repeat what is asserted in respect of the particulars of this complaint where relevant to other complaints.
As will become readily apparent, identical particulars are pleaded in the Amended Complaint about 25 identified patients. The practitioner was not cross-examined about each particular patient, but rather he was subject to more generic questioning about the conduct of the practice at MWI, how a patient's history was obtained, when blood tests were ordered, how a patient was monitored after receiving drugs from the compounding pharmacy, obtaining of informed consent and contact with the patient's general practitioner.
In considering many of these repeated particulars, our findings are necessarily identical. In these cases we will briefly note this fact. In adopting this course we are conscious of the submission made on behalf of the HCCC in oral submissions on 11 April 2019. There Ms Lowson, counsel for the HCCC said: The question of course each particular patient, the way in which the complainant has constructed the complaint in complaint 27 does involve this tribunal needing to examine each patient and it is open to the tribunal to make different findings in respect of each patient but the complainant has put this complaint in a way that it makes allegations in relation to the individual of complaint 1, the individual of the other complaints and then the conglomeration of complaints. So that even if for some patients this tribunal does not find some of the disputed particulars made out, the complainant's position is that the extent of the wrongdoing over the number of patients and over the period of time is sufficient to make out that finding in respect of complaints 2 to 26 even if not all of the particulars are ultimately found proven by the tribunal.

[18]

Complaint 2, particular 1

The background relied on in respect of this complaint and the following 25 complaints is that relied on in respect of complaint 1. The complaint is brought under s 139 B (1) (a) of the National Law. Each particular of the complaint is asserted in itself to justify a finding of unsatisfactory professional conduct. In the following complaints we do not repeat what is asserted in respect of the background of this complaint where relevant to other complaints. 1. The practitioner failed to obtain an adequate medical history for Patient A prior to prescribing Phentermine and hCG, as set out in Schedule A, including: (a) expectations and goals of treatment; (b) details of previous attempts to achieve treatment goals; (c) current strategies being employed to achieve treatment goals; (d) reason(s) the patient wants to lose weight; (e) last visit to her general practitioner; (f) reason(s) patient was taking progesterone and testosterone; (g) current or planned pregnancy; (h) current contraception.
Of the eight particulars alleged in respect of Patient A, the practitioner admits particular 5 which we set out below. He also admits, as a fact, that he did not engage with the patient's general practitioner. The practitioner was unable to recollect any specific patient. His evidence was based on his assertions about the methodology employed at MWI when a patient commenced a program.
The practitioner's notes for this patient reveal she was aged 51 years when she first had a nurse consultation on 12 January 2016. At that time she advised she was 99kg with a goal weight of 68kg. The patient reported she was taking Progesterone 65mg and using testosterone cream daily.
The records record "Doctor Notes" for 28 January 2016. The patient was prescribed "Protocol 1" the notes record "History confirmed". A second page of records notes "Doctor consult" on 13 January 2016 Protocol 1. Prescriptions were written for the patient dated 19 January 2016.
At para 44 of his statement the practitioner refers to the consultation process with a patient generally comprising:
An initial call to reception. 1. The caller being referred to a clinical coach who normally had a background in personal training. 2. The client was passed on to a nurse who was to obtain a medical history, social history, weight loss history, psychiatric, drug abuse, pregnancy and contraception if any. 3. A doctor consultation came after blood results were received, but if the blood results had not been received they were later reviewed. 4. Stimulant medications were prescribed to the minority of clients. 5. The patient was sent information about the medications and assigned a clinical coach. 6. A large number of patients were passed on to talk to MWI in house dietician. 7. If a patient had any medical concerns a doctor or nurse would call them. 8. Patients were given "lots of information about the medication they were taking". They were given a product information sheet.
The practitioner acknowledges that many patient consultations did not take place using Face Time or Skype and when the program started most consultations were by phone. He also states that female patients were not admitted to the program if they were pregnant, planning to fall pregnant or likely to become pregnant. There is nothing in the records to corroborate this assertion.
Dr Thomson is critical of the practitioner's failure to take an adequate history from this patient including the reason for her taking hormones. He also notes that there is no recording of her menstrual history, chance of currently being pregnant or becoming pregnant or plans to become pregnant.
We accept Dr Thomson's opinion that particulars (a) to (f) were relevant questions to be asked by the practitioner in respect of this patient. We do not accept the practitioner's generalised recording "History confirmed" was an adequate history in circumstances where the practitioner prescribed Phentermine and hCG. Later in these reasons we discuss the nature of the MWI records, and in particular, the paucity of evidence in the "doctor consultations".
Although Dr Thomson was challenged in respect of his views that another woman patient aged 52.5 years should have been questioned about pregnancy or possible pregnancy before prescribing he was not challenged about his view that Patient A, at 51 years, should have been questioned about pregnancy.
As we later discuss, we did not find the practitioner was required to discuss contraception or pregnancy given this patient's age. We are not satisfied particulars (g) and (h) are established.

[19]

Complaint 2, particular 2 2. The practitioner failed to adequately examine Patient A prior to prescribing Phentermine and hCG as set out in Schedule A in that he did not physically examine and/or assess Patient A's: (a) general appearance including observations of mobility, demeanour, capacity to engage and communicate rationally; (b) weight; (c) height; (d) abdominal circumference; (e) distribution pattern of fat tissue; (f) pulse rate and rhythm; (g) blood pressure; (h) skin and skin creases; (i) heart and lungs by way of auscultation; (j) abdomen; (k) circulation and sensation of the lower limbs.

The practitioner admits all the particulars of this complaint except particular (a) but limited to the words "capacity to engage and communicate rationally". He admits that his conduct in failing to physically examine the patient before prescribing Phentermine and hCG was significantly below the required standard.
We find the practitioner's assertion that he could assess Patient A's ability to engage and communicate rationally cannot be isolated from the balance of the particular. Dr Thomson notes the type of examination the practitioner should have conducted before prescribing. He very fairly noted that if the practitioner had relevant medical records from a qualified practitioner reliance may have been able to be placed on those records. But that was not the case in the matter or for any other patient referred to in these proceedings.
The failure to examine this vulnerable cohort of patients before prescribing stimulant medication lies at the heart of the complaints against the practitioner. In his oral evidence the practitioner conceded just how inappropriate his conduct had been. He agreed that patient records obtained from the patients' general practitioners disclosed, in a number of cases, conditions which contraindicated the prescribing of the drugs.
We find the practitioner's conduct in prescribing for Patient A, and the other patients named in the complaint, without a physical examination was significantly below the standard to be reasonably expected.

[23]

Complaint 2, particular 6 6. The practitioner failed to obtain informed consent from Patient A prior to prescribing Phentermine and hCG as set out in Schedule A in that he did not ensure: (a) adequate information was available to the patient to allow her and the practitioner to set realistic goals; (b) the patient understood risks and benefits of proposed treatments; (c) the patient understood the extent and/or quality of evidence in support of the proposed intervention..

The practitioner denies he did not obtain informed consent from the patient before he prescribed for her.
We found Professor Wittert's opinion on this topic is succinctly set out in three paragraphs of his report at 7.2. We find his opinion to be cogent and of considerable weight. We have no hesitation in adopting his view.
Professor Wittert opines: Informed consent refers to consent to medical treatment and the requirement to warn of material risk prior to treatment. As part of their duty of care, health professionals must provide such information as is necessary for the patient to give consent to treatment, including information on all material risks of the proposed treatment. Consent requires that the patient has: (i) capacity, (ii) sufficient information, in a manner that is comprehensive and relevant, detailing the expected risks and benefits and the alternative treatments, and (iii) access to written information. Separately and apart, voluntarily(sic) agreement to proceed is required. It is necessary to document: (i) the process, (ii) the information provided, and (iii) receipt of consent.
This patient's running sheet notes demonstrate she was concerned after she received the medications. We refer to our earlier findings about Professor Wittert's evidence on this topic which we accept. The practitioner did not discuss with this or any other patient the risks or any benefits associated with the prescribing of a compounded medication, particularly in circumstances where there is a ARTG approved medication (Duromine) available. This particular is established.

[25]

Complaint 2, particular 8 8. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

There is an inconsistency in the manner in which this complaint and other complaints are drafted which gives rise to confusion. The complaint asserts "Each particular of the complaint in itself justifies a finding of unsatisfactory professional conduct", but particular 9 asserts "Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct".
We also note that the HCCC's expert, Dr Thomson, was asked in respect of each particular, whether that particular in itself was significantly below the standard. He did not consider whether two or more of the particulars taken together demonstrated a course of conduct which justified a finding of significantly below the standard.
We note that in Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [43] Basten JA explained, when commenting on the pleadings in that complaint, that: This form of pleading has been commented on by the Court on previous occasions: see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [27]- [31]. It inevitably gives rise to a degree of uncertainty as to the precise matters relied upon by the complainant and it is impossible to know the parameters of the case to be presented. Furthermore, it is not possible for the Tribunal to deal with such a complaint by finding it proven or otherwise: it can only deal with the case particular by particular. Whether any particular which is upheld constitutes unsatisfactory professional conduct, individually or in combination with other particulars, and whether any such particular constitutes professional misconduct, either individually or in combination with others, must be carefully identified in the findings of the Tribunal. As a result, the findings are likely to be complex, with a further risk that interested parties will not be able to identify readily and with precision what conclusions have been reached by the Tribunal and, where protective orders are made, to which breaches of conduct they relate.[our emphasis].
Thus, it is apparent that an accumulation of particulars in respect of specified conduct can lead to a finding of unsatisfactory professional conduct by a tribunal notwithstanding this is not specified in the legislation (cf. s 139E) which expressly permits the accumulation of incidents of unsatisfactory professional conduct to reach a finding of professional misconduct.
In this case, however, as we are required by the pleading to address the assertion that each particular of the complaint in itself constitutes unsatisfactory professional conduct, we have dealt with the particulars individually. We are satisfied in this matter there is no prejudice occasioned to either party as in the majority of instances, we have found each individual particular relied on to be established.
We also noted comments below which highlight the apparent inconsistencies in the way the complaints are drafted.

[27]

Complaint 3, particular 1 1. The practitioner failed to provide appropriate care and treatment to Patient B by prescribing diethylpropion on or around 27 August 2015 as set out in Schedule B in circumstances where: (a) pathology results for the patient were not available until on or around 4 September 2015; (b) he did not consult with the patient until on or around 9 September 2015

Particular 1 is not admitted by the practitioner.
We note that the practitioner concedes in his statement, at para 45, that on occasions the patient's consultation with the doctor occurred before receipt of blood tests which were later reviewed and discussed with the patient. The practitioner's explanation is not supported by the notes.
Dr Thomson notes in his report that on examination of the patient records, it is recorded that Patient B received her medication on 2 September 2015 and planned to start taking the drugs on the following day. She had undergone a blood test on 28 August 2015 and the results were recorded in her clinical notes on 4 September 2015. The patient's first consultation with the practitioner occurred on 9 September 2015.
The schedule (Ex D Tab 48), the accuracy of which was not challenged by the practitioner, discloses that Diethylpropion was prescribed for this patient on 27 August 2015 and dispensed on 31 August 2015.
The practitioner's evidence is that prescriptions were electronically generated and that he later "countersigned" prescriptions. We note that the practitioner's electronic signature and confirmatory but undated signature does appear on a number of the copies of the prescriptions in the material before us.
We find that the "protocols" around obtaining blood testing, and patient consultation when results were obtained, were not rigorously observed by the practitioner. We are satisfied this particular is established from the records in Exhibit D, and from concessions made by the practitioner in his statement and repeated in cross-examination. The practitioner conceded that he had no recollection of any individual patient, that protocols were not always observed, that MWI had inadequate record keeping software when the business commenced, and that it grew rapidly increasing to some 2,500 patients with continuing software difficulties.

[28]

Complaint 3, particular 2 2. The practitioner failed to obtain an adequate medical history for Patient B prior to prescribing Phentermine and diethylpropion, as set out in Schedule B, including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals; (c) current strategies being employed to achieve treatment goals; (d) current or planned pregnancy; (e) current or planned contraception; (f) possible reason(s) for abnormal liver function tests.

The practitioner disputes this particular and says that the questions set out in (a) to (e) were routinely asked. He admits that enquiries were not made about the patient's abnormal liver function tests before he prescribed for her.
It appears from Patient B's doctor consultation notes that she had consultation with the practitioner on 9 September 2015. We note the practitioner's evidence that during the earlier months that MWI operated, consultation occurred by telephone. We infer from this evidence that Patient B's consultation with the practitioner on 9 September was by telephone.
We observe that Patient B's "running" or administration notes (which we discuss below) in Exh D tab 50 record a report of the Patient's weight (95kg) her goal weight (65kg) that she had no allergies, was not taking medication, had no cardiac or psychiatric history, did not smoke and used alcohol casually. She was also regarded as having good exercise tolerance. These notes finish with a number of dots. The practitioner was unable to explain at the hearing whether this was because the note taking software was only able to print a limited number of characters. His generalised assertions about the software employed by MWI did not assist us. We also note that the notes appearing at Tab 49 contain more information than that appearing in Tab 50.
We found the practitioner's oral evidence about medical record keeping inherently unreliable and, at times, his evidence appeared as either evasive or lacking in credibility. He frequently responded to questions saying he had no recollection or that the matter was "too complex". However, he gave evidence that the software used had a separate and distinct section for medical notes (doctor and nurse consultation) and another section for administration. Doing the best we can on the evidence before us, we will refer to the administration notes as "the running sheet". We accept, at times, doctor notes are copied into the running sheet.
This patient was aged 38 years at the date of consultation. The notes do not reveal any questions directed to pregnancy or contraception. While the practitioner recorded the patient's expectations and goals, it does not appear that she received any realistic appraisal of those expectations and goals. We find there was no recording of the questions set out in (b) to (e). We find that the practitioner did not raise with the patient her abnormal liver results. We agree with the opinions expressed by Dr Thomson in respect of this particular which we find is established.

[31]

Complaint 3, particular 5 5. The practitioner failed to provide appropriate care and treatment for Patient B by prescribing Phentermine and diethylpropion as set out in Schedule B in that he did not: (a) undertake an adequate assessment of risks and benefits of the treatment; (b) provide adequate advice to the patient regarding lifestyle management of obesity.

The practitioner admits sub-particular (a) but does not admit sub-particular (b)
Dr Thomson opines: For obese patients, lifestyle management remains the foundation for improved health outcomes. The benefits of high quality physical activity and behavioural change extend well beyond what may be frustratingly small changes on the scales. Pharmacotherapy for weight management should be seen as an adjunct to lifestyle intervention. The medical record for this patient does not demonstrate any interventions or advice to ensure that the patient was adequately educated or supported for optimal lifestyle management of obesity.
The practitioner's evidence on this topic is that the system employed at MWI did provide adequate advice to the patient regarding lifestyle management of obesity. This occurred, he said, by the client (patient) having a consultant and access to a dietician as well have provision of an information booklet.
The practitioner gave evidence in his statement and before us about the operation of MWI including the use of consultants who may be personal fitness trainers, nurses, or a dietician. However, his evidence was extremely generalised. He provided no evidence of the qualifications of the consultants, about how and when they were recruited, and any supervision or monitoring by him of the advice, if any, they provided to patients. We found much of the practitioner's evidence about the operation of MWI vague and unreliable. He frequently answered questions saying he was unable to recollect events. We found the practitioner's evidence about financial aspects and record keeping at MWI to be evasive and unhelpful.
Relying on the records produced for Patient B, and even taking the practitioner's evidence at its highest, we are not satisfied this patient received adequate advice about lifestyle management, we are satisfied that this particular is established.

[55]

Complaint 6, particular 1 1. The practitioner failed to provide appropriate care and treatment to Patient E by prescribing diethylpropion on or around 22 September 2015 in circumstances where he did not consult with the patient until on or around 2 December 2015.

The notes record he was prescribed Protocol 1. The unchallenged schedule in respect of this patient discloses that he was first prescribed diethylpropion on 22 September 2015. The prescription was dispensed on 23 August 2015. The notes do not disclose whether the consultation was with the practitioner.
The copies of the prescriptions produced were, the practitioner explained, originally generated electronically including bearing his electronic signature and were subsequently personally signed by him. We note that it is telling that the prescriptions bear dates which correspond with the schedule, and when the practitioner subsequently signed the prescription, he did not date when he did so. We find based on the records that this patient was prescribed diethylpropion on or around 22 September 2015, using an electronically generated prescription bearing the practitioner's electronic signature, and that the practitioner physically signed the prescription after it was dispensed and before he spoke with the patient.
The practitioner's conduct of prescribing before consulting with the patient attracts Dr Thomson's strong criticism.
The practitioner asserts that the practice experienced problems with the software package used to record patient notes. On 8 March 2016 the notes disclose that the practitioner recorded the patient was not to have any more A medications for twelve months as he has reached his yearly limit. That evidence, when read with the schedule, supports the inference that the patient did receive diethylpropion in September 2015, prior to his consultation with the practitioner. The notes record that by 28 April 2016 the patient was "demanding" more diethylpropion having already had five rounds.
The records produced by MWI do not support the practitioner's denial of this particular. We are satisfied the particular is established.

[82]

Complaint 8A, particular 1 1. The practitioner contravened clause 7 and Schedule 2 of the Regulation in that he failed to maintain adequate records of his care and treatment of Patient G in that: (a) contrary to clause 1(2) of Schedule 2, the practitioner did not record adequate details of: (i) the patient's medical history; (ii) any physical examination conducted; (iii) the patient's mental state; (iv) any clinical opinion reached; (v) any plan of treatment; (vi) medication prescribed by other health practitioners including current and previous medication; (b) contrary to clause 2(2) of Schedule 2, the practitioner did not record sufficient information to allow another medical practitioner to continue management of the patient's case.

The practitioner does not admit this particular.
In her written submissions Ms Lowson deals with what we will describe as the "record keeping complaints" at paras 17 to 23.
In summary she submits we should find that the records are the complete set of records of MWI and that they do not comply with the regulation.
Ms Lowson points out that after delivery of records to Mr Alexander Gavrilovic in May 2016 by the practitioner there was no evidence that the practitioner communicated to the Pharmacy Regulatory Unit (PRU) that the records were other than complete.
Ms Lowson highlights the practitioner's evidence that he asked relevant questions when taking a medical history, but this evidence should be rejected on the basis that he prescribed for two patients when those patient's histories of hypertension contra-indicated his prescribing. We note the practitioner prescribed for Patients I, N and H, all of whom suffered hypertension.
It is further submitted that we should have regard to the practitioner's evidence given at the s 150 hearing that although there were issues with the records when they were "updated" with subsequent entries his evidence was "If there is a doctor's note in there, a doctor spoke to the patient". (Exh 1, Tab 4 p 501.10). We note the correct reference is Ex A, Tab 4, p 50, line 5.
Ms Lowson also refers to the evidence of Patient D and "complainants in 16 and 20 as being unchallenged". We note that there is a statement from patient S the subject of Complaint 20. However the other statement is from a Patient who we have identified as Patient H, the subject of complaint 9 not complaint 16. Little however turns on this. Each patient statement was unchallenged.
Ms Mathur provided detailed oral submissions in respect the reliability of the records produced generally, and she made specific submissions in respect of each of the patients who it is asserted received medications prior to a consultation with the practitioner.
Without minimising the careful submissions made by Mr Mathur with reference to documents, her submissions fall into the following broad categories: 1. The PSU records, and in particular Ex D, Tab 6 and the statement of Divya Pahwa, legal officer of the HCCC, demonstrate that not all records for all 25 patients selected to be included in the complaint had been produced. 2. That there are inconsistencies in some notes and what are described as "running sheets" with entries sometimes appearing in both the notes and the running sheets, or in the case of Patient A, a different date for the doctor consultation in the notes and the running sheet. 3. That no findings are available to be made that the practitioner altered or amended or caused to be altered or amended running sheets produced in May 2017 as no allegation of alternation or amendment is included in the Amended Complaint. 4. That the practitioner had delegated the collating of records to the operations manager, Ms Jodie Broadbent. 5. That by the time of the correspondence between MWI and the HCCC in November 2016 the practitioner was no longer working for MWI and could not access records.
By contrast, Ms Lowson in her written submissions notes: 1. The practitioner was requested by the PRU to produce documents in respect of patients for whom he prescribed Phentermine and he produced records for 12 patients on 1 March 2016. The practitioner personally produced "two large boxes of the balance of the patient records" to the PRU in May 2016. There was no communication to the PRU that these were anything other than the complete records. 2. The practitioner's evidence at the s 150 proceedings was that if there was a doctor or nurse's note in the records, a doctor or nurse spoke to the patient. 3. The statements provided by three patients about their experiences with MWI were unchallenged. 4. Unlike in these proceedings, the practitioner had made some admissions about record keeping in his statement dated 1 March 2019 and these statements are "entirely inconsistent" with his evidence before us.
Ms Pahwa was not required for cross-examination. She explained that on 12 September she received the documents including patient records for 12 patients from the PRU provided by the practitioner. Between September and October 2016 she selected 25 patients to be the focus of the HCCC's investigation. However, she says that on searching the records provided she realised that "we did not have a complete copy of medical records for these patients. I realised we did not have a copy of the pathology results, phone and email correspondence between the patients and MWI and any record of the medications prescribed to the patients".
Ms Pahwa did not receive documents in response to s 34A notice issued under the Health Care Complaints Act (NSW) directed to the practitioner. However on 2 November 2016 Ms Pahwa received additional records from MWI. She explains in her statement that after December she realised from the records produced "only extracts of the consultation notes had been provided on 2 November 2016 and although the records referred to email correspondence, that had not been provided.
After MWI went into voluntary liquidation, records for 3 patients were provided by the liquidators.

[83]

Discussion and conclusions

We accept that the records produced did not satisfy Ms Pahwa because the records she received did not include email correspondence, if any, between the patient and MWI, and by the time of the appointment of the liquidators questions posed to MWI had not been answered, or answered in an unsatisfactory manner. This fact initially caused us some concern that the record keeping particulars, and prescribing without seeing three patients could not be established to the requisite standard.
The nub of Ms Mathur's submissions is that we could not find the record keeping or prescribing prior to a doctor's consultation was established. She directed us to the differences between an entry showing a "Dr consult and date" and the prescribing of protocol A, and what we have described as "the running sheet". We accept the practitioner simply failed to explain whether the running sheet, which contained entries relating to telephone contact with the patient or from the patient, was limited to a print out of 40 characters, or simply limited to an entry of not more than 40 characters capable of reproduction in print from the computer.
We generally found the running sheet was not in conflict with the doctor consultation notes. We do not accept that the records produced of doctor consultations, particularly in respect of patients were anything but an accurate record of the consultation. In reaching this conclusion, we note the practitioner's response, based on memory, to the s 34A notice made it clear prescriptions were generated electronically with his electronic signature, and were often later counter-signed by him. He confirmed this situation in his oral evidence [Transcript 14 March 2019 p 25]. We find it is inherently likely in the MWI operation, which expanded rapidly without a proper record-keeping system, that some patients received medication before a consultation via an electronically generated prescription. It is telling that the practitioner did not date the electronic prescriptions when he actually counter-signed them.
We find that while the records produced are deficient in some respects that sub-particulars of the record keeping complaint are established. First, we find from our examination of the records, the recording of a patient's medical history was cursory, generally only recorded as "history confirmed". It is not in dispute that a fundamental failure of the practitioner's practice was his failure to conduct a physical examination of the patient, and accordingly there could be no recording of such an examination.
The doctor notes do not include a note of any rationale for the proposed treatment. To the contrary, as is apparent from Patient S's evidence, which we refer to below, both he and his wife (Patient H) received identical medication notwithstanding their very different medical profiles.
The HCCC's request for documentation when closely examined reveals that Ms Pahwa's concerns after November 2016 were directed principally to the lack of email correspondence, if any, and to ascertaining if the running sheet entries were complete. We observe that the running sheet entries are principally concerned with what may be described as "coaching" matters, including particularly details of diet as well as complaints relating to the program, lack of return calls and complaints relating to unexpected termination of the program. While described by Ms Pahwa as "medical records", we do not consider the material generally contained in the running sheets to be part of what would be considered a medical record for the purposes of the regulation.
We agree with Ms Lowson, it was the practitioner's responsibility to produce his medical records to the PRU. We also agree that the practitioner did not indicate that records produced of doctor consultations were not complete. We do not accept that because records in May were generated by Ms Broadbent that the practitioner was absolved from his obligation to ensure his medical records were produced. Further, on the practitioner's own evidence, he was acutely aware that the software used to keep his records had significant problems. His evidence did not demonstrate to us that, in these circumstances, as Medical Director that he took responsibility to ensure he had an alternate and reliable method of keeping his medical records, and making sure those records were available for any other doctor employed by MWI.
One of the principal or core reasons for the regulation is to ensure that if, for any reason, a patient needs to be treated by another practitioner, that the treating practitioner's records will enable continuity of care when the patient is under the care of the new practitioner. The need for recording of the clinical examination and findings, and any medication prescribed is self-evident. Without another practitioner having proper details of past or current medications a patient may be subject, as potentially were a number of patients the subject of this complaint, to prescribing which is contra-indicated.
We do not accept the submission that other doctors, including other doctors employed at MWI, could or should have prescribed for a patient relying on the practitioner's notes. A practitioner relying on the notes, if not an MWI employee would not know what was meant by Protocol A. A practitioner in the employ of MWI may or may not have received adequate information about what Protocol A meant. The notes do not record any link between Protocol A and the prescriptions even if copies of these were available to a doctor taking over the patient's treatment.
We are satisfied that each of the record keeping particulars is established except patients X and Y. We discuss these patients later in our reasons.
For completeness, we note and agree with Ms Mathur's submission that we should not make any finding about altered notes as this is not the subject of any complaint.

[84]

Complaint Nine

Patient H provided a statement dated 27 March 2017. She was aged 51 years when she consulted MWI after seeing an advertisement in a daily newspaper.
After speaking to a consultant and then a nurse, Patient H says she was advised that she would have a consultation with the practitioner. She says she did not receive a call from the practitioner, but subsequently had a telephone conversation on or about 17 December 2015 with a lady who advised her she was a doctor. We observe that this is consistent with the patient notes which disclose a consultation occurring with another named practitioner/Dr Goyer. She reports the doctor told her all was "ok" with her blood tests and that she was suitable for the program. Patient H told the doctor that she had previously taken Duromine.
Patient H says about 27 December 2015 she received three bottles of capsules directly from Australian Custom Pharmaceuticals.
Patient H records she spoke to a woman, Lucy, who told her she was a nutritionist and who said that she should commence the program after 1 January 2016.
When Patient H experienced side-effects from the medication she says she again spoke to the nutritionist, not the practitioner. In June 2016 when she had run out of medication, Patient H says she had a telephone conversation with the practitioner who told her he could not give her any more medication.
Patient H reports being told in August 2016 that her program had "run out" and if she wished to continue it would cost $57 per week, with a minimum of four weeks, for coaching and medication.
A prescription for Phentermine, Chromium Picolinate and 5-Hydrotryptophan was generated for this patient on 21 December 2015 with the practitioner's electronic signature. A further script, dated 17 February 2016, was generated for this patient and counter-signed by the practitioner on an unknown date. A further script for the drugs was generated on 18 April 2016 but was not counter-signed by the practitioner. A pathology report was addressed to the practitioner and dated 18 December 2015. The patient's general practitioner notes disclose that she was prescribed Duromine on 21 March 2015 and on 25 June 2015 she reported abnormal bleeding. Her general practitioner notes record this could be a menopausal symptom but "pattern was atypical".

[107]

Complaint 11, particular 5 5. The practitioner failed to provide appropriate care and treatment for Patient J in that he did not refer the patient to a specialist able to assess her suitability for bariatric surgery or to a specialist weight loss clinic in circumstances where: (a) Patient J's BMI was greater than 40; (b) Patient J had attempted many weight loss programs with limited success.

The practitioner denies this particular because he was not practising as a general practitioner.
This patient's consultation notes reveal her weight was 98kgs and that she had a goal weight of 60kg. Patient J's height was 152cm. The consultation notes include an entry "Has tried many programs limited success".
Dr Thomson found the practitioner's conduct in failing to refer this patient was significantly below the expected standard. He opined: [Patient J]'s weight was recorded as 98kg on 29/9/15, and height as 152cm. At this weight and height her BMI is calculated to be 42. There is good evidence that bariatric surgery provides significant and medium to long term weight loss and resultant improvements in health benefits and risks. A BMI of greater than 40 is an indication to consider bariatric surgery. [Patient J]'s BMI of 42 and her history of having tried many programs with limited success, suggest that she would be likely to benefit from a referral to a specialist multidisciplinary obesity management clinic and or a consultation with a specialist in bariatric surgery.
The practitioner through MWI advertisements held himself out as a Medical Specialist in weight loss. He confirmed this position in oral evidence but said his role as a doctor was limited because he was only dealing with weight loss. We reject his assertion that because he was not engaged in general practice he was absolved from responsibility to consider, and make, specialist referrals where appropriate to do so. In this case, the referral was directly relevant to his treatment of the patient for weight loss.
We find Dr Thomson's opinion set out above is soundly based. We are satisfied that this particular is established.

[191]

Complaint 20

Patient S provided a statement dated 6 April 2014. He was not required for cross-examination. Patient S records that he saw an advertisement for MWI on Facebook. He says in December 2015 after speaking to a program manager he decided to join the program and paid the initial sum of $1,965 for the program whose total costs was $3,930. Patient S notes that he was asked to provide his Medicare number.
Patient S annexes to his statement an information sheet he received from MWI. Among other information the sheet disclosed: As our programs are specifically tailored for each person's individual weight loss needs they may ask you to confirm the information during your initial consultations.
The information sheet under the heading "Meet our team" does not refer to the practitioner, or any other medical practitioner. Nor is there any mention of a nurse.
Blood tests, which were noted to be bulk billed, were ordered on a request with the practitioner's signature electronically generated.
Patient S says that he provided details of his date of birth, height, weight and target weight, not to a nurse, but a program manager He explained he had hypertension and anxiety and a family history of heart disease and hypertension. He says the program manager told him she would need to get his general practitioner to confirm he could start the program. He subsequently discussed the names of the medications the program manager had given him with his general practitioner who was not familiar with the medications and who advised against starting the program.
Patient S says that after his consultation with his general practitioner he again contacted MWI and one of the program managers told him words to the effect: Most GP's prefer to prescribe traditional medications and haven't heard of our medications as these are non-traditional. Do not worry about any potential side effects. These medications are suitable for you.
Patient S says he insisted on speaking to a doctor and was transferred to the practitioner who told him his blood tests were "normal" and that he was suitable for the program.
On 19 January 2016 Patient S says he received an email from MWI advising his medication had been prescribed, would be compounded and sent to him shortly.
Patient S says he received medications 4 February 2016 and after experiencing side effects including that his blood pressure "was going through the roof" he emailed MWI. He says his email was not answered, but the program manager, during a weekly call, told him the side effects he was experiencing were normal.
Patient S reports continuing the program for a couple of weeks, but that he "started to feel the program was a hoax". He says his wife also joined the program and received "the exact same medication I was". He reports all conversations with MWI were on the telephone and that he never had any consultations over Skype, Facetime or other video-calling service.
Patient's S's general practitioner wrote to the HCCC on 6 April 2017. The general practitioner noted that on 14 January 2016 the patient enquired about taking Duromine with his blood pressure treatment and was advised against taking the medication.
As with other patients, two sets of consultation notes are produced for this patient. The notes produced in May 2016 disclose a nurse consultation on 8 January 2016. The notes record a family history of heart disease and hypertension and that the patient suffered hypertension. The patient's weight was 135kg with a goal weight of 105kg. The patient was prescribed compounded Phentermine by an electronically generated prescription dated 20 January 2016 and counter-signed by the practitioner on an unknown date.

[204]

Complaint 21, particular 3 3. The practitioner failed to provide appropriate care and treatment for Patient T by prescribing Phentermine as set out in Schedule T in that he did not: (a) consider the patient's history of depression in circumstances where Phentermine is contra-indicated in patients with a history of depression; (b) undertake an adequate assessment of risks and benefits of the treatment; (c) provide adequate advice to the patient regarding lifestyle management of obesity.

The practitioner does not admit this particular and notes "as depression is considered in (b) and (c) above (referring to the previous particular). We have some difficulty understanding this notation in the practitioner's schedule in lieu of a Reply.
Dr Thomson opines: "The medical record of Caringbah Medical and Dental Centre for [Patient T] records that [Patient T] was being prescribed Pristiq MR (desvenlafaxine) for depression. (29/12/14 and 3/4/16). Phentermine is contraindicated for patients with a history of depression. The entry on 29/12/14 'takes pristiq 50 from LMO' suggests that [Patient T] usually or sometimes obtained his prescriptions from another doctor (his Local Medical Officer). Desvenlafaxine was not prescribed at Carringbarh(sic) Medical and Dental Centre, in 2015, but [Patient T] may have been taking desvenlafaxine prescribed by his LMO in 2015. The combination of phentermine and desvenlafaxine may potentiate some of the side effects of phentermine, such as restlessness, insomnia, racing thoughts, stomach cramps, rapid or irregular heartbeats. The combination of phentermine and desvenlafaxine may result in a rare but potentially fatal serotonin syndrome."
We accept and adopt Dr Thomson's opinion. We note the patient reported "mild anxiety" to the nurse who initially took his medical history. The practitioner's notes do not indicate this history or any medication prescribed for it was explored by the practitioner. We rely on and repeat our earlier findings in respect of sub-particulars (b) and (c).

[260]

Complaint 27

This complaint asserts the practitioner is guilty of professional misconduct as defined in s 139E of the National Law. Three particulars are relied on to establish professional misconduct as follows: 1. The following particulars are relied upon individually: (a) Complaint 1 Particular 1; (b) Complaint 1 Particular 2; (c) Complaint 1 Particular 3. 2. Complaints 2 to Complaints 26 are relied upon individually: 3. Complaints 1 to 26 including Complaints 8A, 10A, 11A, 12A, 13A, 14A, 15A, 16A, 17A, 18A, 19A, 20A, 21A, 22A, 23A, 24A and 25A and the particulars thereof are relied upon cumulatively or in any combination.
We have earlier in these reasons set out the definition of professional misconduct as found in s 139 E of the National Law.
We have found each of the particulars of Complaint 1 established.
As is noted in the written submissions of the HCCC, the practitioner's prescribing involved five different drugs, two of which were prescribed in compounds by the practitioner "for which he had no evidence as to their safety or efficacy". We have found this complaint established and adopted the opinions expressed by Professor Wittert who was, in our view, justifiably extremely critical of the practitioner's prescribing.
The practitioner's prescribing involved hundreds of prescriptions provided to patients without any adequate risk assessment.
Ms Mathur on behalf of the practitioner readily and we would say appropriately acknowledged the practitioner's conduct as particularised in Complaint 1 constituted unsatisfactory professional conduct. She, again appropriately we would say, acknowledged other aspects of the practitioner's conduct including in particular his total failure to physically examine any patient before prescribing for such patient, constituted unsatisfactory professional conduct but not professional misconduct. We cannot accept that submission.
We find that the practitioner's conduct as particularised in Complaint 1 is of itself sufficiently serious to warrant the suspension or cancellation of the practitioner's registration. The practitioner prescribed without any proper research or other basis for the drugs he prescribed, particularly the compounded medications, one of which had been removed from sale in Europe and Australia because of adverse side effects. He continued to prescribe that drug while supplies were available.
The HCCC also rely on the particulars set out above to cumulatively lead us to a finding of professional misconduct. We have set out our findings in respect of each particular of the complaint. It is unnecessary that we repeat each of our findings which we have taken into consideration in reaching a finding that the practitioner is guilty of professional misconduct.
We find that the practitioner's conduct in prescribing compounded stimulant medication for this cohort of particularly vulnerable patients, without a physical examination, was totally inappropriate. Further, his conduct in prescribing was particularly reprehensible in the case of those patients whose own disclosure in nurse consultations revealed medical conditions which contraindicated such prescribing such as Patients I and S who suffered from hypertension.
We also find that the practitioner had, and still has, a completely inadequate understanding of what is required by the regulation. His note keeping was, in every case, a standard proforma entry. While a proforma set of questions may provide an appropriate and convenient check list of some standard questions to be asked by a practitioner, in the case of many female patients in these proceedings, it is clear that he did not investigate or at least record any information about contraception or pregnancy. His mere "history confirmed" does not disclose any proper discussion with a patient about the risks and benefits of the medication, or assessment of their previous weight loss attempts.
We were not persuaded by the practitioner's reliance on other employees of MWI to "fill the gaps" in his patient care. It was clear from the practitioner's evidence that initially MWI did not employ nurses, and overseas personnel were used in the latter stages of the operation of MWI. Patient S's medical information was provided not to a nurse, but a program manager. The practitioner was not engaged in any oversight of the MWI employees or the advice they provided. Although he initially worked from premises at King's Cross (referred to as Potts Point in the PRU report) used by MWI his evidence was clear that for the majority of the operation of MWI he conducted his role as Medical Director from his own premises at North Sydney and accessed information from a record keeping system kept "in the cloud" that was unreliable.
The overall impression from the practitioner's evidence was that his patient consultations were pro-forma and uninformative to the patient. Our conclusions are based on the unchallenged patient statements before us, and the unreliability of the practitioner's evidence. It is noteworthy that he frequently answered questions by saying the circumstances were "too complex" to explain, or that he had no recollection of patients, or events.
We also found that the practitioner whilst at MWI paid scant or no regard to his obligation to obtain an informed consent from patients before prescribing stimulant medication. That obligation was not fulfilled by recommending, if he did so, that a patient consult their own general practitioner. As is apparent from our reasoning in respect of this particular, which is repeated for all 25 patients, we did not find the practitioner was absolved by providing an information sheet, if he in fact did so. Patient S's experience was he received a "welcome booklet". The information in that booklet, even if received by every patient, did not fulfil the practitioner's obligations to ensure a proper and real consent from each patient.
In summary, we are satisfied that complaint 1 of itself justifies a finding of professional misconduct. Further and in addition, we are satisfied for the reasons given in respect of the particulars we have found established, when considered cumulatively, those established particulars warrant a finding that the practitioner's conduct is so serious that it could lead to the suspension or cancellation of his registration. We are satisfied that complaint 27 is established.

Health Care Complaints Commission v Goyer

At a glance

Court

Decision date

Before

Source

Judgment (262 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (10)

Cited By (11)