Health Care Complaints Commission v Goyer

The practitioner

1. 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.
2. Between 1997 to 2000 the practitioner says he undertook studies at JCU (James Cook University).
3. 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.
4. After his graduation, the practitioner engaged in service in the Australian Army.
5. 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.
6. 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.
7. 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.
8. Between 2009 to 2011 the practitioner worked at Laser Clinics Australia.
9. The practitioner asserts he commenced his own practice in 2010 and in 2013 set up Sydney Cosmetic Clinic.
10. The practitioner's curriculum vitae discloses between 2010 and 2017 he worked at Eden Laser Clinics.
11. 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.
12. 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.

Matters in issue

1. 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.
2. 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".
3. 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.
4. 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.
5. 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.

The relevant law and statutory provisions

1. 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.
2. 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.
3. 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).
4. 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]

The admitted particulars

1. 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".
2. 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.
3. 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]
4. 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.
5. We agree with that concession, which is appropriately made on the practitioner's behalf.
6. 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.

Professor Gary Wittert

1. The HCCC relied on two reports from Professor Gary Wittert (Professor Wittert) dated 22 October 2017 and 1 November 2017. Professor Wittert is a specialist physician with registration in General Medicine and Endocrinology. He is a Professor of Medicine at the University of Adelaide. He was not required for cross-examination.

Dr Thomson

1. The HCCC also relied on reports of Dr Graeme R Thomson (Dr Thomson), a general practitioner, dated 20 October 2017, and a supplementary report received by the HCCC on 13 November 2017.
2. We will refer to the opinions expressed by the two experts when considering the particulars of the complaints.

The amended complaint

1. There is no dispute about the background facts set out in the Amended complaint.

Complaint 1, particular 1 1. Between 1 January 2015 and 26 February 2016 the practitioner failed to provide appropriate care and treatment for patients at MWI by prescribing approximately 462 prescriptions for compounded phentermine capsules (phentermine 30mg, chromium picolinate 500mcg and 5-hydroxytryptophan 50mg) ("Phentermine") to assist the patients with weight loss in circumstances where: (a) the compounded preparation does not have a recognised evidence-based therapeutic purpose in Australia; (b) he failed to consider the likely benefits and/or risks of prescribing Phentermine 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 and management of obesity; (c) there was insufficient clinical evidence to support the practitioner's rationale for prescribing Phentermine, namely, that it is more effective and has less side effects than Duromine; (d) the practitioner did not have sufficient knowledge and expertise in relation to treatment and management of obesity

1. We note it appears there is a typographical error in sub-particular (v) and this particular should be read as "product information" not "produce information". We note the similar error in the following particulars.
2. The particulars for Complaint One Particular 2 and 3 are as follows:

Complaint 1, particular 2 2. Between 1 January 2015 and 26 February 2016 the practitioner failed to provide appropriate care and treatment for patients at MWI by prescribing approximately 232 prescriptions for diethylpropion capsules (75mg) and compounded diethylpropion capsules (chromium 400mcg and diethylpropion 75 mg) to assist the patients with weight loss in circumstances where: (a) 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 obesity; (b) there was insufficient clinical evidence to support the practitioner's rationale for prescribing the drug, namely, that it provided assistance with anxiety and insomnia and had less side effects than compounded phentermine; (c) the practitioner did not have sufficient knowledge and expertise in relation to treatment or management of obesity.

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.

1. 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".
2. 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.

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

1. 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."
2. 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.
3. 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.
4. 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".

Professor Gary Wittert

1. 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.
2. 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.
3. 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.
4. We pause to note that while the practitioner could have prescribed Duromine he did not do so, but rather prescribed compounded medication.
5. 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".
6. 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.
7. Professor Wittert notes that there is no benefit in prescribing hCG for oral administration other than homeopathic.
8. Unsurprisingly, Professor Wittert opines that a face to face consultation is required before prescribing any of the drugs referred to above.
9. 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.
10. 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.
11. 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]
12. 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.
13. 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.
14. 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".
15. 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.
16. In his substantive report Professor Wittert expressed his view that the practitioner's prescribing departed from accepted standards and invited his strong criticism.

Dr Graeme Thomson

1. Dr Thomson was retained by the HCCC. He provided two reports and gave oral evidence before us. He is a Fellow of the Royal Australian College of General Practitioners. He has had wide ranging experience including 8 years in rural general practice, as Regional Director Rural Doctors Resource Network, and as a medical educator (half-time) RACGP Training program from 1992-2001. He is currently engaged as a Medical Educator for GP Synergy a position he has held since 2016 and is also Visiting Medical Officer at a Youth Justice Centre.
2. Dr Thomson's opinions expressed in his report were subject to challenge in the written submissions for the respondent. It is unnecessary that we canvass a number of the criticisms including such matters as the hours Dr Thomson reported he took in the preparation of his report and his current employment as we did not find the criticisms impeached Dr Thomson's capacity as an expert. Dr Thomson prepared a very detailed report responding to the complaints in respect of each patient, and the particulars asserted in respect of the complaint. With some exceptions, which we later discuss, we generally accepted Dr Thomson's views as soundly based. The thrust of his opinion evidence was in broad terms similar to the criticisms levelled at the practitioner by Professor Wittert.

Conclusions Complaint One - particulars 1, 2 and 3.

1. We are independently satisfied that the practitioner's admissions in respect to the particulars in complaint 1 are appropriately made. In reaching this finding we rely on and adopt the expert opinion of Professor Wittert. We are satisfied that the practitioner's prescribing was significantly below the standard to be expected of a practitioner of an equivalent level of training or experience and constitutes unsatisfactory professional conduct for the purposes of s 138 (1) (a).

Complaint Two

1. 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.
2. 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.
3. 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.

Complaint 2, particular 1

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.
2. 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.
3. 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.
4. 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.
5. At para 44 of his statement the practitioner refers to the consultation process with a patient generally comprising:
6. 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.
7. 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.
8. 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.
9. 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".
10. 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.
11. 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.

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.

1. 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.
2. 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.
3. 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.
4. 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.

Complaint 2, particular 3 3. The practitioner failed to order appropriate investigations for Patient A prior to prescribing Phentermine and hCG as set out in Schedule A in that he did not order a beta hCG test in circumstances where Phentermine is contraindicated in pregnancy.

1. The practitioner disputes that his failure to order appropriate investigations of this patient before prescribing on the basis the drugs are contraindicated in pregnancy was below standard.
2. Dr Thomson remained firm in his oral evidence about the need to order tests for this 51 year old woman. We do not agree with Dr Thomson that it was necessary to investigate whether Patient A was pregnant. She was a 51.5 year old woman. Pregnancy, although not impossible, was highly unlikely given her age. Further, her medications as recorded in the nurse consultation are indicative of treatment of a menopausal woman.
3. We agree with Dr Thomson that, although this woman was aged 51.5 years and pregnancy was unlikely, in circumstances where he did not see the patient on a face to face basis, nor it appears from his notes did he specifically enquire about pregnancy and contraception, it would have been prudent to eliminate pregnancy before his prescribing of Phentermine.

Complaint 2, particular 4 4. The practitioner failed to provide appropriate care and treatment for Patient A by prescribing A Phentermine and hCG as set out in Schedule A 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; (c) adequately investigate of the patient's sodium levels

1. The practitioner admits sub-particulars (a) and (c) but not (b) of Particular 4.
2. We agree with and adopt the opinions expressed by Professor Wittert on this topic. We are satisfied that the practitioner's concessions are appropriately made.
3. In disputing sub-particular (b) the practitioner relies on the general operation of MWI. The records for this patient do not support the practitioner's contentions. First, although the standard questions to be asked by the nurse who spoke to the patient include questions such as other programs tried, and general practitioner visits, no answers to these questions were recorded. We draw on the inference that the questions were not directed to the patient. Secondly, the patient notes make it very clear that this patient's involvement with MWI was brief. The patient experienced an adverse reaction to the medications prescribed. Finally, the patient MWI "running sheet" (short computer entries) record the patient said she was "frustrated at lack of calls". This does not suggest this patient received the type of holistic program care described by the practitioner. We are satisfied this sub-particular is established.

Complaint 2, particular 5 5. The practitioner failed to appropriately monitor Patient A after prescribing Phentermine and hCG as set out in Schedule A in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight; (d) allergic reactions; (e) abnormal heart rhythms

1. This particular is admitted by the practitioner. He admits his conduct was significantly below standard. Both experts are highly critical of the practitioner's failure to physically monitor patients who were receiving medications including Phentermine and hCG. We agree with and adopt the experts' opinions.

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..

1. The practitioner denies he did not obtain informed consent from the patient before he prescribed for her.
2. 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.
3. 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.
4. 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.

Complaint 2, particular 7 7. The practitioner failed to engage with Patient A's regular treating general practitioner to ensure Patient A received coordinated care.

1. The practitioner admits this particular as a matter of fact.
2. We are satisfied that the facts set out in the particular are established. The practitioner's evidence on this topic was clear. He did not contact or report to any patient's general practitioner, nor did he seek access to patient records. However, while we note that Dr Thomson explains co-ordinated care would have been best practice, he does not find the practitioner's conduct significantly below the standard expected, where patients were not referred to him by their general practitioner. We accept his opinion. This particular is not established.

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.

1. 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".
2. 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.
3. 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].
4. 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.
5. 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.
6. We also noted comments below which highlight the apparent inconsistencies in the way the complaints are drafted.

Complaint Three

1. The particulars relate to Patient B.

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

1. Particular 1 is not admitted by the practitioner.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Complaint 3, particular 3 3. The practitioner failed to adequately examine Patient B prior to prescribing Phentermine and diethylpropion as set out in Schedule B in that he did not physically examine and/or assess Patient B'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.

1. The practitioner's response to this particular is identical to his response to the same particular in respect of Patient A. We rely on and repeat our findings in respect of Patient A. This particular is established. The practitioner's conduct constitutes unsatisfactory professional behaviour.

Complaint 3, particular 4 4. The practitioner failed to order appropriate investigations for Patient B prior to prescribing Phentermine and diethylpropion as set out in Schedule B in that he: (a) did not order a beta hCG test in circumstances where Phentermine is contraindicated in pregnancy; (b) did not order pathology testing until the day after prescribing diethylpropion.

1. The practitioner does not admit sub-particular (a), or that his failure to order a pregnancy test was significantly below the standard.
2. Dr Thomson opines that the practitioner's failure to order appropriate investigations prior to prescribing fell significantly below the expected standard. He notes the patient had blood tests the day after her prescriptions were written and that no pregnancy test was ordered.
3. Given this patient's age, we are satisfied the practitioner's prescribing for her, with no recorded history of pregnancy or contraception, was significantly below the accepted standard.

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.

1. The practitioner admits sub-particular (a) but does not admit sub-particular (b)
2. 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.
3. 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.
4. 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.
5. 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.

Complaint 3, particular 6 6. The practitioner failed to appropriately monitor Patient B after prescribing Phentermine and diethylpropion as set out in Schedule B in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular. The concession is appropriately made.
2. It is unnecessary that we explore this particular in any depth. It is clear that the practitioner totally failed to monitor this and other patients after he prescribed for her. His conduct in failing to do so constitutes unsatisfactory professional conduct.

Complaint 3, particular 7 7. The practitioner failed to obtain informed consent from Patient B prior to prescribing Phentermine and diethylpropion as set out in Schedule B 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 which supported the proposed intervention.

1. The practitioner denies he did not obtain informed consent from the patient before he prescribed for her.
2. We refer to and repeat our adoption of Professor Wittert's opinion on this topic. This patient's notes do not suggest she could have given informed consent in circumstances where her prescription was written before she had a telephone consultation with the practitioner.

Complaint 3, particular 8 8. The practitioner failed to engage with Patient B's regular treating general practitioner to ensure Patient B received coordinated care.

1. This particular is admitted by the practitioner as a matter of fact. Again we rely on and repeat our conclusions in respect of this sub-particular to Patient A. We are not satisfied this particular is established.

Complaint 3, particular 9 9. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We rely on and repeat our earlier findings in respect of this particular.

Complaint Four

1. This complaint also relies on s 138B (1) (a) of the National Law and relies on the particulars set out in respect of Complaint One. The particulars are in respect of Patient C.

Complaint 4, particulars 1 and 2 1. The practitioner failed to provide appropriate care and treatment to Patient C by prescribing diethylpropion on or around 13 October 2015 as set out in Schedule C in circumstances where he did not consult with the patient until on or around 27 March 2016. 2. The practitioner failed to provide appropriate treatment to Patient C by prescribing Phentermine on or around 8 December 2015 as set out in Schedule C in circumstances where he did not consult with the patient until on or around 27 March 2016

1. The practitioner does not concede Particulars 1 and 2 are established.
2. The schedule of this patient's medications are provided at Ex D Tab 54, the accuracy of which we note was not challenged, discloses Diethylpropion was prescribed on 13 October 2015. On 8 December 2015 the patient was prescribed a Phentermine compound. He received another Phentermine compound script "Protocol 1 A2" on 8 February 2016. The only recorded consultation for this patient with the practitioner occurred on 27 March 2016.
3. We are satisfied that particulars 1 and 2 are established. We agree with and adopt Dr Thomson's analysis of the records.

Complaint 4, particular 3 3. The practitioner failed to obtain an adequate medical history for Patient C prior to prescribing Phentermine and diethylpropion, as set out in Schedule C, including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals; (c) current strategies being employed to achieve treatment goals; (d) details of the patient's mild obstructive sleep apnoea; (e) details of the patient's hypertension; (f) details of the patient's raised cholesterol; (g) possible reason(s) for abnormal liver function tests.

1. The practitioner admits sub-particulars (d) to (g) but does not admit his failures were significantly below the expected standard.
2. The practitioner's notes disclose that he did record the patient's weight, his goal weight, his height and that he was not taking any medication. The notes also record no cardiac history with a check-up with the patient's general practitioner without issues the preceding year. The patient reported he did not smoke and was a social drinker.
3. During the course of its investigations the HCCC obtained Patient C's records from his general practitioner. Dr Thomson notes the history records in the MWI notes does not accord with the history in the general practitioner's notes. The latter notes disclosed the patient suffered a number of medical conditions details of which were not elicited from the patient or recorded in the list of standardised questions asked by the practitioner or a nurse.
4. We are satisfied that the practitioner did not obtain an adequate medical history and that particulars (a) to (g) are established.

Complaint 4, particular 4 4. The practitioner failed to adequately examine Patient C prior to prescribing Phentermine and diethylpropion as set out in Schedule C in that he did not physically examine and/or assess Patient C'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.

1. The practitioner admits that Particular 4 is established. However, he does not admit that his failure to examine this patient before prescribing constitutes unsatisfactory professional conduct.
2. We repeat and rely on our findings in respect of Complaint 2, particular 2.

Complaint 4, particular 5 5. The practitioner failed to provide appropriate care and treatment for Patient C by prescribing Phentermine and diethylpropion as set out in Schedule C 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.

1. The practitioner concedes sub-particular (a). He does not admit sub-particular (b).
2. We agree with and adopt Dr Thomson's opinion about the practitioner's prescribing for this patient. He noted the patient's general practitioner's notes disclosed a significantly different history from that recorded in the MWI notes. The patient's alcohol history, his liver function tests and raised cholesterol levels all contraindicated, without further exploration, the prescribing of Phentermine and or diethylpropion. We are satisfied sub-particular (a) is established.
3. Again, we note that the practitioner had no recollection of any specific patient. Rather, in disputing sub-particular (b) he relied on his generalised evidence of the practices engaged in by staff at MWI.
4. As with Patient B there is some evidence of monitoring by MWI staff of the patient's eating and exercise undertaken as well as his weight. However, for the reasons given in respect of Patient B in respect of Complaint 3 particular 5, we are satisfied this particular is established and constitutes unsatisfactory professional conduct.

Complaint 4, particular 6 6. The practitioner failed to appropriately monitor Patient C after prescribing Phentermine and diethylpropion as set out in Schedule C in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular and that his failure constitutes a significant departure from the standard expected. Having regard to patient's actual medical conditions, which the practitioner did not adequately investigate, we are satisfied his prescribing without monitoring constituted unsatisfactory professional conduct.

Complaint 4, particular 7 7. The practitioner failed to obtain informed consent from Patient C prior to prescribing Phentermine and diethylpropion as set out in Schedule C in that he did not ensure: (a) adequate information was available to the patient to allow him 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 which supported the proposed intervention

1. We adopt as our findings in respect to this particular our conclusions set out in respect of Complaint 3 Particular 7. We are satisfied this particular is established.

Complaint 4, particular 8 8. The practitioner failed to engage with Patient C's regular treating general practitioner to ensure Patient C received coordinated care.

1. The practitioner admits this particular as to fact. We rely on and repeat our findings in respect of Complaint 3 Particular 8.

Complaint 4, particular 9 9. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. For the reasons earlier enunciated, we do not accept this particular properly represents the position in relation of a finding of unsatisfactory professional conduct under the National Law.

Complaint Five

1. Patient D provided a statement dated 24 March 2017. She was not required for cross-examination.
2. Patient D describes reading about MWI in a daily paper. She explained that all consultations with MWI occurred over the telephone. She describes an initial consultation with a program manager, and several days later a ten minute consultation with a woman who described herself as a nurse. After undergoing a blood test about 11 November 2015 Patient D had a consultation with the practitioner. She said he repeated the questions asked by the nurse and then said words to the effect: I will give you specially formulated medication to correct your metabolism and other deficiencies evident in your blood test. This will enable you to lose weight.
3. Patient D says that her consultation with the practitioner was for no more than about five minutes. She also explains that she was not provided with any oral or written information about the risks or side effects of the medication.
4. Patient D says that she noticed in about February 2016 that her medication had been changed. She reported the communication from MWI being poor, and as a result, she consulted her general practitioner. She says that at no time did the practitioner or any of the staff from MWI suggest she should consult her general practitioner.
5. At para 18 of her statement Patient D says: I was told by my program manager that the medication had been changed as it was better for me. I was not provided with any information about side effects or risks associated with the new medication.
6. Patient D relates experiencing side effects on her changed medication, and that after speaking with the practitioner she was told by him that he would not be changing her medication.

Complaint 5, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient D prior to prescribing Phentermine and diethylpropion as set out in Schedule D 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 contraception; (f) details of the patient's anxiety including symptoms and management.

1. The practitioner admits this particular, but not that his conduct was significantly below the expected standard.
2. The practitioner's notes in respect of his consultation with Patient D, a 36 year old married woman, disclose reports of the patient's previous attempts at weight loss including WW (we infer Weight Watchers) and Lite'n'easy. However, there is no record concerning pregnancy, or any follow up of her reported anxiety.
3. Dr Thomson opines: As these drugs are contraindicated in pregnancy, a history of current or planned pregnancy and current contraception should be obtained prior to prescribing these medications. [the practitioner] recorded that this patient had a history of anxiety. It would have been appropriate to take a more detailed history of this symptom and its management. Anxiety may be aggravated by the prescribed medication.
4. We agree with and adopt Dr Thomson's opinion and his strong criticism of the practitioner's conduct. We are satisfied this particular is established.

Complaint 5, particular 2 2. The practitioner failed to adequately examine Patient D prior to prescribing Phentermine and diethylpropion, as set out in Schedule D, in that he did not physically examine and/or assess Patient D'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.

1. This particular is admitted by the practitioner save and except for sub-particular (a). We repeat and rely on our earlier findings in respect of Complaint 3 Particular 3. We are satisfied this particular is established.

Complaint 5, particular 3 3. The practitioner failed to order appropriate investigations for Patient D prior to prescribing Phentermine and diethylpropion as set out in Schedule D in that he: (a) did not order a beta hCG test in circumstances where Phentermine is contraindicated in pregnancy; (b) did not investigate the patient's abnormal cortisol levels so as to exclude Cushing's syndrome.

1. The records disclose that the practitioner determined on 11 November 2015 that Patient D should receive Protocol 1 medication. She was prescribed Diethylpropion on 13 November 2015. Dr Thomson's notes: Blood was collected for a range of investigation on the ninth of November 2015. The results of these investigations were not reported until the 13th of November 2015, two days after the consultation of Dr Goyer had with the(sic) [Patient D]. The results of these investigations included abnormal cortisol levels sufficient to warrant further history and investigation to exclude Cushing's syndrome prior to prescribing the medication. A pregnancy test was not requested. As these drugs are contraindicated in pregnancy, a pregnancy test would be warranted if pregnancy had not been adequately excluded in the history.
2. We agree with Dr Thomson's review of the records. We are independently satisfied this particular is established.

Complaint 5, particular 4 4. The practitioner failed to provide appropriate care and treatment for Patient D by prescribing Phentermine and diethylpropion as set out in Schedule D 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.

1. At page 38 of his report, Dr Thomson notes the findings of an endocrinologist who saw the patient approximately one year after the practitioner. At that time her weight was similar to that reported to the practitioner. The endocrinologist found that her weight was almost normal because she was muscular and had a normal waist measurement. The endocrinologist also noted that she was fit and if her current effort continued she would be free of obesity related disease for a long time. Dr Thomson opines this is the sort of risk/benefit assessment that would be appropriate to discuss with the patient before prescribing phentermine or diethylpropion. We agree with and adopt Dr Thomson's opinion in respect of this particular.
2. The practitioner does not admit this particular. While there are a number of entries in the computerised "running sheet" of telephone conversations between the Patient and MWI staff, some of which are directed to her eating regime, we are satisfied that sub-particular (b) is established.

Complaint 5, particular 5 5. The practitioner failed to appropriately monitor Patient D after prescribing Phentermine and diethylpropion as set out in Schedule D in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight

1. The practitioner admits this particular. For the reasons explained in respect of Complaint 3 Particular 6, we are satisfied this particular is established.

Complaint 5, particular 6 6. The practitioner failed to obtain informed consent from Patient D prior to prescribing Phentermine and diethylpropion as set out in Schedule D 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 which supported the proposed intervention

1. The practitioner does not admit this particular. We adopt and repeat our findings in respect of Complaint 3 Particular 7.

Complaint 5, particular 7 7. The practitioner failed to engage with Patient D's regular treating general practitioner to ensure Patient D received coordinated care.

1. The practitioner does not admit this particular. Dr Thomson observes that the patient was told to inform her general practitioner of her treatment Dr Thomson states it would have been in the best interests of the patient to work with her general practitioner to provide co-ordinated care. In his initial report Dr Thomson does not find the failure to engage with Patient D's regular treating practitioner was significantly below the expected standard. Dr Thomson confirmed that position in his supplementary report. We agree that the practitioner failed to engage with the patient's general practitioner, but that conduct, while not best practice, was not significantly below the expected standard. We are not satisfied that this particular is established.

Complaint 5, particular 8 8. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We repeat our earlier conclusions in respect of this particular.

Complaint Six

1. The following particulars are relied on by the HCCC in respect of Patient E.
2. Patient E was aged 29 when he first contacted MWI in 2015. The MWI notes disclose that the patient had a doctor consultation on 2 December 2015. He reported his weight to be 118kg and that he had a goal weight of 90kg.

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.

1. 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.
2. 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.
3. The practitioner's conduct of prescribing before consulting with the patient attracts Dr Thomson's strong criticism.
4. 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.
5. The records produced by MWI do not support the practitioner's denial of this particular. We are satisfied the particular is established.

Complaint 6, particular 2 2. The practitioner failed to obtain an adequate medical history for Patient E prior to prescribing Phentermine and diethylpropion, as set out in Schedule E, including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals; (c) current strategies being employed to achieve treatment goals; (d) a mental health history; (e) details of Patient E's history of palpitations; (f) the patient's family history including diabetes and heart disease.

1. This particular is not admitted by the practitioner.
2. Dr Thomson notes the medical conditions recorded in the patient's general practitioner's notes including a history of anxiety and depression, and counselling about drugs of dependency none of which were elicited from the patient in his consultation on 2 December 2015. We agree with Dr Thomson these matters are suggestive of an increased risk of harm for this patient to receive the "Protocol A" drugs he received, and continued to receive while participating in the MWI program. We are satisfied this particular is established.

Complaint 6, particular 3 3. The practitioner failed to adequately examine Patient E prior to prescribing Phentermine and diethylpropion as set out in Schedule E in that he did not physically examine and/or assess Patient E'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.

1. As with similarly drafted particulars in respect of other patients, the practitioner admits this particular except in respect of sub-particular (a). We rely on and repeat our earlier findings in respect of Complaint 2 Particular 2.

Complaint 6, particular 4 4. The practitioner failed to provide appropriate care and treatment for Patient E by prescribing Phentermine and diethylpropion as set out in Schedule E 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.

1. The practitioner does not admit this particular.
2. We have earlier set out the practitioner's generalised response to similar particulars in respect of other patients. We refer to and adopt our conclusions in respect of Complaint 3 Particular 5. We are satisfied this particular is established.

Complaint 6, particular 5 5. The practitioner failed to appropriately monitor Patient E after prescribing Phentermine and diethylpropion as set out in Schedule E in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular. At its highest the practitioner's monitoring of this patient was to inform MWI staff that the patient had exceeded the yearly dose of diethylpropion and was not going to be given further prescriptions for 12 months. We find that this was wholly inadequate monitoring of this vulnerable patient who had complex needs.
2. We agree with Dr Thomson's opinion that the practitioner's conduct in failing to appropriately monitor this patient was significantly below the expected standard. The particular is established.

Complaint 6, particular 6 6. The practitioner failed to obtain informed consent from Patient E prior to prescribing Phentermine and Diethylpropion as set out in Schedule E in that he did not ensure: (a) adequate information was available to the patient to allow him 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 which supported the proposed intervention.

1. The practitioner denies this and similar particulars in respect of other patients relating to informed consent. We rely on and repeat our findings set out in respect of Complaint 3 Particular 7.

Complaint 6, particular 7 7. The practitioner failed to engage with Patient E's regular treating general practitioner to ensure Patient E received coordinated care.

1. The practitioner disputes this particular. We rely on and repeat our findings in respect of Complaint 3 Particular 7. This particular is not established.

Complaint 6, particular 8 8. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We repeat our earlier findings in respect of the drafting of this particular.

Complaint Seven

1. This patient was aged 21 years at the date of consultation. The patient's notes are confusing as one entry, which is probably an error of 11 December 2015 notes "went for a walk and had to push herself to get home". However, the balance of the notes make it clear that the patient is male, married and with one child.

Complaint 7, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient F prior to prescribing Phentermine and diethylpropion, as set out in Schedule F, including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals; (c) current strategies being employed to achieve treatment goals; (d) prior diagnoses including: attention deficit disorder; Crohn's disease; polycystic kidneys; pyloric stenosis; and asthma; (e) medications prescribed including: dexamphetamine; ranitidine; temazepam and salbutamol.

1. The practitioner denies this particular.
2. Dr Thomson notes that the history recorded in the notes is at significant variance to the patient's history set out in his general practitioner's notes. The latter records a history of attention deficit disorder, Crohn's disease, polycystic kidneys, pyloric stenosis and asthma. The patient had been prescribed medications including dexamphetamine, ranitidine, temazepam and salbutamol.
3. Although the dates of prescription for dexamphetamine do not correspond with the practitioner's prescriptions, Dr Thomson explains the patient may not have been taking this medication at the relevant time however, he opines: …his use of this medication is a significant part of his past medical history. Dexamphetamine is similar to phentermine and diethylpropion in its actions and side effects, such as high blood pressure, abnormal heart rhythms, anxiety and insomnia. These side effects may be compounded when the two medications are taken together. Dexamphetamine, phentermine and diethylpropion are stimulants which have potential for abuse.
4. We are satisfied that the history obtained by the practitioner from this patient was wholly inadequate. This particular is established.

Complaint 7, particular 2 2. The practitioner failed to adequately examine Patient F prior to prescribing Phentermine and diethylpropion as set out in Schedule F in that he did not physically examine and/or assess Patient F'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.

1. This particular is admitted by the practitioner. We rely on and repeat our findings in respect of other patients discussed earlier in these reasons. We are satisfied this particular is established.

Complaint 7, particular 3 3. The practitioner failed to provide appropriate care and treatment for Patient F by prescribing Phentermine and diethylpropion as set out in Schedule F 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; (c) consider that these drugs are contraindicated with a history of anxiety, attention deficit disorder and dexamphetamine.

1. At page 52 of his report Dr Thomson notes the contraindications for prescribing for this patient. We accept and adopt his opinion. This particular is established.

Complaint 7, particular 4 4. The practitioner failed to appropriately monitor Patient F after prescribing Phentermine and diethylpropion as set out in Schedule F in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. Our examination of the notes discloses that this patient was not properly monitored. We accept and adopt Dr Thomson's opinion that the practitioner's conduct in failing to monitor this young man was significantly below the expected standard. The particular is established.

Complaint 7, particular 5 5. The practitioner failed to obtain informed consent from Patient F prior to prescribing Phentermine and diethylpropion as set out in Schedule F in that he did not ensure: (a) adequate information was available to Patient F to allow him 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 which supported the proposed intervention.

1. We rely on and repeat our earlier findings about other patients. The notes and the practitioner's evidence do not support the practitioner's position in relation to this particular.

Complaint 7, particular 6 6. The practitioner failed to engage with Patient F's regular treating general practitioner to ensure Patient F received coordinated care.

1. This patient's case highlights how best practice would have been observed if there had been contact between the practitioner and the patient's general practitioner. However, as with other patients where there was no contact with the patient's general practitioner, we do not find the failure constitutes unsatisfactory professional conduct. We accept and adopt Dr Thomson's opinion about this particular.

Complaint 7, particular 7 7. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We repeat our earlier findings about this particular.

Complaint Eight

1. This female patient's pathology results were addressed to the practitioner at "Fields of Beauty", North Sydney on 8 September 2015. The pathology report, but not the doctor's notes, disclose the patient was aged 34 years. The doctor records note a consultation on 2 December 2015. The patient's weight is recorded at 87kg and that she wanted to lose 7kg. The notes record the patient's advice that she drank 2 to 3 glasses of red wine 3 to 4 nights per week.
2. As Dr Thomson notes, the notes do not identify the person recording the medical history. He also notes that prescriptions for diethylpropion were written for this patient by the practitioner on 8 September 2015 and on 22 October 2015. Phentermine prescriptions were written on 3 December 2015 and 10 February 2016. The unchallenged schedule produced at Ex E tab 80 shows each prescription was dispensed on the date on the electronic prescriptions that the practitioner countersigned on an unknown date.
3. Records obtained from the patient's general practitioner disclose a history of insomnia, polycystic ovaries, post pill amenorrhoea, chronic constipation and asthma. She had been prescribed Duromine on 3 occasions in 2015, and Temazepam for insomnia in 2013, 2015 and early 2016.

Complaint 8, particular 1 1. The practitioner failed to provide appropriate care and treatment for Patient G when he first prescribed diethylpropion on or around 8 September 2015 as set out in Schedule G in circumstances where he did not consult with the patient until on or around 2 December 2015.

1. The practitioner does not admit this particular.
2. Dr Thomson notes that this patient's medical notes disclose prescriptions for diethylpropion were written for this patient, who was then aged 38, at "four months and two months before the date on which the patient's medical history is recorded.
3. Dr Thomson correctly records that the notes disclose "Dr Notes" without identification of a practitioner's name on 2 December 2015 and that prescriptions for diethylpropion were written for this patient by the practitioner on 8 September 2015 and 22 October 2015.
4. The establishment of this particular relies substantially on our acceptance of the reliability of the medical records produced from MWI. In her written submissions Ms Lowson submits that in each instance where a prescription pre-dates an entry for a doctor consultation reliance should be placed on the records and we should find the particular is established.
5. We note that the first prescription for this patient was generated electronically on the same day as the pathology results for the patient were received. We find it is inherently likely in the system adopted at MWI as explained by Ms Broadbent, that an electronic prescription was generated, dispensed and provided to the patient before the doctor consultation and that the practitioner counter-signed the prescription sometime after the dispensing occurred. We are satisfied this particular is established.

Complaint 8, particular 2 2. The practitioner failed to obtain an adequate medical history for Patient G prior to prescribing Phentermine and diethylpropion as set out in Schedule G including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals; (c) current strategies being employed to achieve treatment goals; (d) prior medications prescribed; (e) diagnoses including: insomnia; polycystic ovaries; post pill amenorrhoea; chronic constipation; asthma.

1. The practitioner does not specifically deny this particular. Rather his table shows the particular as "Not admitted as significantly below standard"
2. It is not clear from the notes that it was the practitioner who conducted a consultation with this patient. However, the prescriptions generated for this patient were ones of the practitioner. Given the date of the initial prescriptions and dispensing of them prior to the patient's consultation with a doctor, whether the practitioner or another doctor, we are satisfied this particular is established.

Complaint 8, particular 3 3. The practitioner failed to adequately examine Patient G prior to prescribing Phentermine and diethylpropion as set out in Schedule G in that he did not physically examine and/or assess Patient G'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.

1. As with other patients discussed earlier in this reasons, the practitioner admits he did not conduct a physical examination but does not admit he was unable to assess the patient's ability to engage and communicate rationally. For reasons given earlier, we are satisfied this particular is established. We agree with Dr Thomson in respect of this patient and others who the practitioner did not physically examine before prescribing that his conduct was significantly below the standard to be reasonably expected.

Complaint 8, particular 4 4. The practitioner failed to order appropriate investigations for Patient G prior to prescribing Phentermine and diethylpropion as set out in Schedule G in that he did not order a beta hCG test in circumstances where Phentermine is contraindicated in pregnancy.

1. The doctor notes for this patient recorded on 2 December 2015 disclose she was taking an oral contraceptive. However, as she received prescriptions before that information was elicited from her, we find a pregnancy test should have been ordered. We agree with and adopt Dr Thomson's opinion. This particular is established.

Complaint 8, particular 5 5. The practitioner failed to provide appropriate care and treatment for Patient G by prescribing Phentermine and diethylpropion as set out in Schedule G 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.

1. The practitioner does not admit this particular.
2. Dr Thomson does not address this particular in his reports. Rather, he answers a question posed by the HCCC - should the practitioner have referred the patient for specialist review. We observe that the Phentermine prescription was written after the doctor consultation. However, as with other patients, we are satisfied that there was no adequate assessment of the risks or benefits of the treatment prescribed. We find the practitioner could not have adequately assessed risks or benefits at a time when he was justifying his prescribing regimes on the articles referred to in these reasons. Proper research would have disclosed the adverse findings about diethylpropion that led to its withdrawal from the Australian market.
3. In respect of sub-particular (b) we rely on and repeat our earlier findings in respect of other patients. Those findings are apposite to this patient.

Complaint 8, particular 6 6. The practitioner failed to appropriately monitor Patient G after prescribing Phentermine and diethylpropion as set out in Schedule G in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular. We find that concession is appropriately made. The particular is established.

Complaint 8, particular 7 7. The practitioner failed to obtain informed consent from Patient G prior to prescribing Phentermine and diethylpropion as set out in Schedule G in that he did not ensure: (a) adequate information was available to Patient G 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 which supported the proposed intervention.

1. The practitioner does not admit this particular. Dr Thomson notes that realistic weight loss goals were not explored with this patient. We prefer to rely on the evidence of Professor Wittert as to what was required in the circumstances of this and other patients to give informed consent. As we later explain when discussing Patients I and S, we find that the processes adopted by the practitioner at MWI to obtain consent were wholly inadequate. This particular is established.

Complaint 8, particular 8 8. The practitioner failed to engage with Patient G's regular treating general practitioner to ensure Patient G received coordinated care.

1. As with other patients, we accept Dr Thomson's opinion that while it would have been best practice to engage with this patient's general practitioner, failure to do so was not significantly below the standard. This particular is not established.

Complaint 8, particular 9 9. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. For reasons earlier given, this particular is not established.

Complaint 8A

1. This complaint asserts a breach of the regulation in that it is asserted the practitioner failed to maintain adequate records for Patient G. Similar complaints are agitated in Complaint 10A, 11A, 12A, 13A, 14A, 15A, 16A, 17A, 18A, 19A, 20A, 21A, 22A, 23A, 24A, and 25A. It is unnecessary we set out the particulars in respect of the complaints other than this complaint as the particulars are identical in each case.

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.

1. The practitioner does not admit this particular.
2. In her written submissions Ms Lowson deals with what we will describe as the "record keeping complaints" at paras 17 to 23.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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".
12. 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.
13. After MWI went into voluntary liquidation, records for 3 patients were provided by the liquidators.

Discussion and conclusions

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.

Complaint Nine

1. 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.
2. 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.
3. Patient H says about 27 December 2015 she received three bottles of capsules directly from Australian Custom Pharmaceuticals.
4. 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.
5. 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.
6. 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.
7. 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".

Complaint 9, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient H prior to prescribing Phentermine, as set out in Schedule H, 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 contraception; (f) prior medications prescribed including Duromine.

1. It is clear from the patient's statement she did not have a consultation with the practitioner until June 2016 but received medication on three occasions prior to the prescriptions being filled. We do note that the history taken on this occasion in the nurse consultation record is more detailed than that recorded for other patients. Although the doctor consultation notes for 17 December 2015 record both the practitioner's name and another doctor's name, the patient's evidence is that she only spoke to a female practitioner. Accepting the patient's unchallenged evidence about the doctor to whom she spoke, we are satisfied this particular is established.

Complaint 9, particular 2 2. The practitioner failed to adequately examine Patient H prior to prescribing Phentermine and diethylpropion as set out in Schedule H in that he did not physically examine and/or assess Patient H'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.

1. As with other patients, the practitioner concedes this particular and that his conduct constitutes unsatisfactory professional conduct. We agree. The particular is established.

Complaint 9, particular 3 3. The practitioner failed to order appropriate investigations for Patient H prior to prescribing Phentermine as set out in Schedule H in that he did not order a beta hCG test in circumstances where Phentermine is contraindicated in pregnancy.

1. This patient was aged 52 years at the date of her first contact with MWI. Her medical records, albeit subsequently obtained by the HCCC and not available to the practitioner, indicate that in June that year she suffered atypical bleeding not necessarily due to menopause. Given this patient's age, we do not find it was below the standard expected because the practitioner did not order a pregnancy test.

Complaint 9, particular 4 4. The practitioner failed to provide appropriate care and treatment for Patient H by prescribing Phentermine as set out in Schedule H 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.

1. We rely on our earlier findings and conclusions in respect of other patients in respect of whom this particular is alleged.

Complaint 9, particular 5 5. The practitioner failed to appropriately monitor Patient H after prescribing Phentermine as set out in Schedule H in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular.
2. The clinical records clearly indicate that the practitioner did not monitor this patient. His first significant involvement in her care was when he spoke to her in June 2016 at the time of the patient's request for an extension of her medication.

Complaint 9, particular 6 6. The practitioner failed to obtain informed consent from Patient H prior to prescribing Phentermine as set out in Schedule H in that he did not ensure: (a) adequate information was available to Patient H 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 which supported the proposed intervention.

1. It is clear from the patient's statement that the practitioner did not obtain the patient's informed consent. We adopt and accept Professor Wittert's opinion about what was required of the practitioner in this regard.

Complaint 9, particular 7 7. The practitioner failed to engage with Patient H's regular treating general practitioner to ensure Patient H received coordinated care.

1. We note the practitioner admits this particular as a matter of fact. We accept Dr Thomson's view that the practitioner's conduct was not best practice but was not significantly below expected standards.

Complaint 9, particular 8 8. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We repeat our earlier findings about this particular.

Complaint Ten

1. This patient was aged 52 years and was prescribed Phentermine in February 2016 after a telephone consultation with the practitioner on 25 January 2016. The nurse notes dated 22 January 2016, indicate that the patient had previous attempts at weight loss, currently weighed 106kg and had a goal weight of 90kg. The patient disclosed a history of hypertension and blood pressure issues.
2. We note that the notes provided on the practitioner's behalf by Ms Broadbent do not contain a date of consultation. However, notes which are identical in all respects, except for the addition of a date of consultation were late supplied by Ms Rhea Balcome.
3. Phentermine, Chromium Picolinate and 5-Hydrozxytryptophan was prescribed in prescription dated 2 February 2016 bearing the practitioner's electronic signature and later counter-signed by him on an unknown date. The patient's general practitioner's record discloses a long history of hypertension including in August 2015.

Complaint 10, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient I prior to prescribing Phentermine, as set out in Schedule I, including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals (c) current strategies being employed to achieve treatment goals; (d) management of hypertension.

1. The practitioner does not admit this complaint.
2. While the nurse consultation notes record the patient's relevant medical history and previous attempts at weight loss, we find that the practitioner's history taking was not adequate in the circumstances of the patient's medical issues. We are satisfied this particular is established. We rely on and adopt Dr Thomson's opinion in reaching this finding as well as our own independent assessment of the doctor consultation record.

Complaint 10, particular 2 2. The practitioner failed to adequately examine Patient I prior to prescribing Phentermine as set out in Schedule I in that he did not physically examine and/or assess Patient I'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.

1. The practitioner admits this particular except sub-particular (a). We rely on and repeat our findings in respect of other patients discussed above in respect of this particular.

Complaint 10, particular 3 3. The practitioner inappropriately prescribed Patient I Phentermine as set out in Schedule I in that there was inadequate: (a) risk/benefit assessment including a failure to assess the risk of aggravating the patient's hypertension; (b) provide adequate advice to the patient regarding lifestyle management of obesity

1. As with many other patients, the practitioner admits this particular, except for sub-particular (b). We are satisfied that the practitioner's conduct in prescribing for this patient with a significant history of hypertension was inappropriate. We find Dr Thomson's opinion to be cogent and persuasive. Dr Thomson said: It was not appropriate to prescribe phentermine to a patient who was being treated with medication for high blood pressure without an assessment that would enable the prescriber and the patient to conclude that phentermine would provide a benefit to the patient which justified or outweighed the high risk of side effects. In this case the side effects include aggravating and increasing the risks of hypertension.

Complaint 10, particular 4 4. The practitioner failed to appropriately monitor Patient I after prescribing Phentermine as set out in Schedule I in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular. It is self evident that these routine actions were not taken by the practitioner who never physically saw a patient.

Complaint 10, particular 5 5. The practitioner failed to obtain informed consent from Patient I prior to prescribing Phentermine as set out in Schedule I in that he did not ensure: (a) adequate information was available to Patient I to allow him 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 which supported the proposed intervention.

1. We rely on and repeat on adoption of Professor Wittert's opinion about what was required for a proper informed consent. We are satisfied this particular is established.

Complaint 10, particular 6 6. The practitioner failed to engage with Patient I's regular treating general practitioner to ensure Patient I received coordinated care.

1. As with other patients where this identical particular is relied on, we are not satisfied that this particular is established.

Complaint 10, particular 7 7. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We rely on a repeat our earlier findings in respect of this particular.

Complaint 10A

1. This complaint also assets a breach of the record keeping regulation in respect of Patient I.
2. We have dealt with the record keeping complaints earlier in these reasons. This particular is established.

Complaint 11

1. The record of the consultation with the practitioner and the running sheet relied on in respect of this patient disclose different surnames. Further, two identical consultation records are included in the documents relied on by the HCCC. Notes produced by Ms Broadbent refer to the patient by a different name to that set out in the complaint. The second set of consultation notes have a different surname, different email address for the patient but identical mobile telephone numbers. Both consultation records disclose [the practitioner] Dr Consult from 29 September 2015.
2. On 11 March 2019 we were advised by Ms Lowson that the patient named in the schedule to the complaint was identical to the patient whose medical records were produced by a general practitioner. (Transcript 11.3.2019 p 10). However, on 15 March 2019, Ms Lowson was instructed to amend her previous representation. She sought leave to amend the schedule to the complaint to change the patient's surname to that appearing in Ex F Tab 101, 102, 103 and 104. There was no opposition to the amendment sought.
3. The notes reveal Patient J was a 49 year old nurse who was "currently menopausal". A prescription with the practitioner's electronic signature was generated on 29 September 2015 which was subsequently counter-signed on an unknown date. The initial prescription was for Diethylpropion. In October 2015 the patient notes from Patient J's general practitioner indicated she had elevated cholesterol.

Complaint 11, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient J prior to prescribing Phentermine and diethylpropion, as set out in Schedule J, including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals (c) current strategies being employed to achieve treatment goals; (d) family medical history; (e) current or prior medical conditions.

1. As with other patients, the practitioner does not admit this particular of Complaint 11. We repeat and rely on our earlier findings in respect of the patients discussed earlier in these reasons in respect of this particular.

Complaint 11, particular 2 2. The practitioner failed to adequately examine Patient J prior to prescribing Phentermine and diethylpropion as set out in Schedule J in that he did not physically examine and/or assess Patient J'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.

1. The practitioner admits this particular except for sub-particular (a). We rely on and repeat our earlier findings in respect of this particular which are equally apposite to this patient. We find the particular is established.

Complaint 11, particular 3 3. The practitioner failed to make appropriate investigations for Patient J prior to prescribing Phentermine and diethylpropion as set out in Schedule J in that he did not order and/or follow-up pathology results.

1. The records do not reveal the conduct of any investigations or further consultation with the practitioner before the prescribing particularised in particular 3. We accept and rely on Dr Thomson's opinion that the practitioner's conduct was a significant departure from standards. We find this particular is established.

Complaint 11, particular 4 4. The practitioner failed to provide appropriate care and treatment for Patient J by prescribing Phentermine and diethylpropion as set out in Schedule J 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.

1. The practitioner does not admit this particular.
2. Dr Thomson is critical of the practitioner's prescribing without an adequate assessment of risks and benefits, informed consent and monitoring arrangements.
3. We agree with and except Dr Thomson's opinion. This patient did not receive an adequate assessment. The first prescription was generated the same day as the practitioner's consultation with Patient J with no assessment of risks or benefits of the drug prescribed.
4. We rely on and repeat our earlier findings about the lack of supervision by the practitioner as Medical Director of MWI of lifestyle advice provided to this and other patients.

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.

1. The practitioner denies this particular because he was not practising as a general practitioner.
2. 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".
3. 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.
4. 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.
5. We find Dr Thomson's opinion set out above is soundly based. We are satisfied that this particular is established.

Complaint 11, particular 6 6. The practitioner failed to appropriately monitor Patient J after prescribing Phentermine and diethylpropion as set out in Schedule J in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular. As with other patients where this particular is asserted, we find the practitioner's concession the particular is established is an appropriate one.

Complaint 11, particular 7 7. The practitioner failed to obtain informed consent from Patient J prior to prescribing Phentermine as set out in Schedule J in that he did not ensure: (a) adequate information was available to Patient J 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 which supported the proposed intervention.

1. As with other patients where this particular is relied on, the practitioner denies this particular. It is clear that Patient J did not receive the type of information referred to by Professor Wittert as being adequate to give an informed consent. We are satisfied this particular is established.

Complaint 11, particular 8 8. The practitioner failed to engage with Patient J's regular treating general practitioner to ensure Patient J received coordinated care.

1. We rely on and repeat our early findings in respect of this particular which we do not find established.

Complaint 11, particular 9 9. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We repeat our earlier findings about this particular.

Complaint 11A

1. We repeat our findings above in respect of the record keeping complaint.

Complaint 12

1. Patient K, female patient with a history of endometriosis from age 20, was aged 54 at the date of her consultation with the practitioner. She had tried many weight loss programs. Patient K reported her weight was 86-87kgs and she had a goal weight of 76-77kg. She also reported she had been on Depo-Provera till age 45.
2. We note that two almost identical consultation notes are produced for this patient. The notes produced on the practitioner's behalf by Ms Broadbent do not disclose a date of consultation. Notes later produced by Rhea Balcome disclose nurse consultation on 5 February 2016 and a doctor consultation on 11 February 2016. A prescription with the practitioner's electronic signature was generated on 12 February 2016. A second prescription for vitamins was also written on that day and counter-signed on an unknown date.

Complaint 12, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient K prior to prescribing Phentermine, as set out in Schedule K, 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; (d) current contraception.

1. The practitioner does not admit this particular. We rely on a repeat our earlier findings in respect of other patients where this particular is relied on by the HCCC. We are satisfied this particular is established.

Complaint 12, particular 2 2. The practitioner failed to adequately examine Patient K prior to prescribing Phentermine as set out in Schedule K in that he did not physically examine and/or assess Patient K'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.

1. In his tabled document, the practitioner does not respond to the balance of the particulars asserted in respect of this patient. We are satisfied this particular is established. This patient was not examined adequately by the practitioner who conducted his consultation by telephone.

Complaint 12, particular 3 3. The practitioner failed to order appropriate investigations for Patient K prior to prescribing Phentermine as set out in Schedule K in that he did not order a beta hCG test in circumstances where Phentermine is contraindicated in pregnancy.

1. Dr Thomson opines that the practitioner's conduct in failing to order a pregnancy test was below the expected standard. We do not find it was necessary for the practitioner to order a pregnancy test for this 54 year old woman. This particular is not established.

Complaint 12, particular 4 4. The practitioner failed to provide appropriate care and treatment for Patient K by prescribing Phentermine as set out in Schedule K 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.

1. We rely on and repeat our earlier findings in respect of other patients in respect of this particular.

Complaint 12, particular 5 5. The practitioner failed to appropriately monitor Patient K after prescribing Phentermine as set out in Schedule K in that he did not monitor or assess: (a) pulse; (b) blood pressure; (b) change in weight.

1. Again, we rely on and repeat our earlier findings in respect of this particular.

Complaint 12, particular 6 6. The practitioner failed to obtain informed consent from Patient K prior to prescribing Phentermine as set out in Schedule K in that he did not ensure: (a) adequate information was available to Patient K 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 which supported the proposed intervention.

1. We rely on and repeat our earlier findings in respect of this particular.

Complaint 12, particular 7 7. The practitioner failed to engage with Patient K's regular treating general practitioner to ensure Patient K received coordinated care.

1. For our reasons set out earlier in this decision, we are not satisfied this particular is established.

Complaint 12, particular 8 8. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We repeat our earlier findings about this particular.

Complaint 12A

1. This complaint is directed to an asserted failure by the practitioner to keep adequate records for Patient K.
2. We repeat our findings above in respect of the record keeping complaint.

Complaint 13

1. We did not have the benefit of a statement from this patient. Patient K was aged 53 years at the date of consultation. It is not clear from the notes whether the patient consulted both the practitioner and another doctor or another doctor.
2. The practitioner was not questioned about this patient in cross-examination or why two doctors' names appear in the consultation notes. He did give evidence that, as the number of patients increased rapidly, MWI did engage other doctors. However, the notes disclose his name as one of the consulting doctors, and as Medical Director he had overall supervision of the medical aspects of the program. Further, and of significance, the prescriptions generated for this patient bear the practitioner's electronic signature and his counter-signature on an unknown date. No general practitioner notes were included in the material before us.

Complaint 13, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient L prior to prescribing Phentermine, as set out in Schedule L, 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 contraception

1. The practitioner does not admit particular 1.
2. We rely on and repeat our earlier findings in respect of this particular..

Complaint 13, particular 2 2. The practitioner failed to adequately examine Patient L prior to prescribing Phentermine as set out in Schedule L in that he did not physically examine and/or assess Patient L'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.

1. The practitioner admits that he failed to physically examine this patient. As with similar particulars asserted in respect of other patients, he does not admit sub-particular (a). For reasons given earlier in respect of other patients, we find this particular is established.

Complaint 13, particular 3 3. The practitioner failed to order appropriate investigations for Patient L prior to prescribing Phentermine as set out in Schedule L in that he did not order a beta hCG test in circumstances where Phentermine is contraindicated in pregnancy.

1. As noted this patient was aged 53 years at the date of consultation. We find it was inherently unlikely at that age she would be pregnant, or contemplating pregnancy. We are not satisfied it was significantly below the standard reasonably expected for the practitioner to fail to order a pregnancy test.

Complaint 13, particular 4 4. The practitioner failed to provide appropriate care and treatment for Patient L by prescribing Phentermine as set out in Schedule L 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.

1. This particular is not admitted.
2. For reasons earlier enunciated by us in respect of other patients we are satisfied this particular is established.

Complaint 13, particular 5 5. The practitioner failed to appropriately monitor Patient L after prescribing Phentermine as set out in Schedule L in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular. We accept his concession is appropriate. As there was no appropriate monitoring by him of the patient, we are satisfied the particular is established.

Complaint 13, particular 6 6. The practitioner failed to obtain informed consent from Patient L prior to prescribing Phentermine as set out in Schedule L in that he did not ensure: (a) adequate information was available to Patient L 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 which supported the proposed intervention.

1. Again, the practitioner denies this particular in respect of Patient L. We rely on and repeat our findings on this topic in respect of other patients. Those comments are equally apposite to Patient L.

Complaint 13, particular 7 7. The practitioner failed to engage with Patient L's regular treating general practitioner to ensure Patient L received coordinated care.

1. For reasons enunciated earlier in this reasons, we are not satisfied this particular is established.

Complaint 13, particular 8 8. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct

1. We rely on and repeat our findings in respect of this particular.

Complaint 13A

1. This complaint deals with the asserted failure by the practitioner to keep adequate records for Patient L.
2. Again, we rely on our earlier discussion in respect of other patients. This particular is established.

Complaint 14

1. As with the previous patient, the consultation notes for this patient record the names of both the practitioner and another doctor. Again, however, the prescriptions for the patient were electronically generated scripts counter-signed by the practitioner on an unknown date.

Complaint 14, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient M prior to prescribing Phentermine, as set out in Schedule M, 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 contraception.

1. As with other patients to whom this particular is directed, the practitioner did not admit this particular.
2. We rely on and repeat our findings in respect of other patients regarding this particular. Further, we note that this patient's general practitioner's notes record the patient suffered from asthma and arthritis. Either these conditions were not recorded by the practitioner, or not disclosed to the practitioner.

Complaint 14, particular 2 2. The practitioner failed to adequately examine Patient M prior to prescribing Phentermine as set out in Schedule M in that he did not physically examine and/or assess Patient M'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.

1. The practitioner, as in the case of other patients where this particular is pleaded, admits the particulars except sub-particular (a).
2. We repeat our earlier findings in respect of this particular.

Complaint 14, particular 3 3. The practitioner failed to order appropriate investigations for Patient M prior to prescribing Phentermine as set out in Schedule M in that he did not order a beta hCG test in circumstances where Phentermine is contraindicated in pregnancy.

1. This patient's notes disclose that she was aged 45 years at the date of her consultation with the practitioner. The notes do not disclose any questions were posed to the patient about any contraception she was or had used, whether she was pregnant or wished to become pregnant.
2. We are satisfied that this particular is established. In reaching this conclusion we rely on the opinion of Dr Thomson that the prescription of Phentermine is contra-indicated in the case of pregnancy. No appropriate information was obtained from this patient in respect of contraception or pregnancy before Phentermine was prescribed. The practitioner's conduct in that regard was significantly below the standard reasonably expected.

Complaint 14, particular 4 4. The practitioner failed to provide appropriate care and treatment for Patient M by prescribing Phentermine as set out in Schedule M 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.

1. As with other patients where this particular is asserted, the practitioner does not admit the facts set out in the particular.
2. For our reasons enunciated in respect of other patients where this particular is alleged, we are satisfied the particular is established.

Complaint 14, particular 5 5. The practitioner failed to appropriately monitor Patient M after prescribing Phentermine as set out in Schedule M in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular. That admission is appropriately made.

Complaint 14, particular 6 6. The practitioner failed to obtain informed consent from Patient M prior to prescribing Phentermine as set out in Schedule M in that he did not ensure: (a) adequate information was available to Patient M 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 which supported the proposed intervention.

1. The practitioner disputes this particular.
2. We rely on and repeat our earlier findings in respect of this particular relating to other patients. We are satisfied the particular is established.

Complaint 14, particular 7 7. The practitioner failed to engage with Patient M's regular treating general practitioner to ensure Patient M received coordinated care.

1. Again, the practitioner denies this particular. For reasons given earlier, we are not satisfied this particular is established.

Complaint 14, particular 8 8. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We repeat our earlier findings about this particular.

Complaint 14A

1. Again the particular is directed to a lack of adequate record keeping this time in respect of Patient M.
2. We rely on and repeat our earlier findings about this particular.

Complaint 15

1. This male patient was aged 46 years when he consulted the practitioner. His weight was reported to be 133kg with a goal weight of 90kg. The nurse consultation notes record that he had unsuccessfully tried shakes and medication in the past for weight loss. His medical history included a strong family history of hypertension.

Complaint 15, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient N prior to prescribing Phentermine, as set out in Schedule N, including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals (c) current strategies being employed to achieve treatment goals.

1. The practitioner does not admit this particular.
2. Again, we rely on and repeat our earlier findings in respect of this particular when asserted about other patients the subject of the complaint. We further note, as did Dr Thomson, this patient was, at the time of his consultation with the practitioner and another named doctor, also consulting his general practitioners, had been prescribed medication and the subject of bariatric surgery had been discussed. Dr Thomson speculates there may be reasons why the patient did not share his full medical history with the practitioner, and whether the patient had been asked appropriate questions.
3. We note that this patient told his general practitioner that he had enrolled in a 40 week weight loss program. We infer from this evidence that if he had been asked other than the MWI standard questions in a proper consultation Patient N would likely have disclosed his full medical history.

Complaint 15, particular 2 2. The practitioner failed to adequately examine Patient N prior to prescribing Phentermine as set out in Schedule N in that he did not physically examine and/or assess Patient N'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

1. The practitioner admits particular 2 except for sub-particular (a).
2. We repeat and rely on our earlier findings in respect of this particular as asserted in respect of other patients.

Complaint 15, particular 3 3. The practitioner failed to provide appropriate care and treatment for Patient N by prescribing Phentermine as set out in Schedule N 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; (c) adequately consider the patient's hypertension.

1. The practitioner does not admit this particular. However, in respect of sub-particular (c) he acknowledges that the patient's hypertension could have been more closely considered.
2. We note our comments in respect of this patient's disclosures to his general practitioner and the practitioner's failure to investigate risks involved because of the patient's family history of hypertension. We are satisfied the particular is established.

Complaint 15, particular 4 4. The practitioner failed to provide appropriate care and treatment to Patient N in that he did not refer her to a specialist able to assess her suitability for bariatric surgery or to a specialist weight loss clinic in circumstances where: (a) Patient N's BMI was greater than 40; (b) Patient N had attempted weight loss on more than one occasion without long-term success.

1. The practitioner does not admit this particular.
2. We note that the particular is framed on the basis the patient is female. However the pathology records, and the general practitioner's notes clearly disclose the patient is male. Dr Thomson notes the patient is male.
3. Dr Thomson opines this patient should have been referred for specialist review. He notes: [Patient N] has a BMI calculated to be 43. He would be classified as morbidly obese (BMI > 35). He gave a history of more than one previous attempt at weight loss. He also reported that he had gained the weight back It would have been appropriate to refer him to a specialist weight loss clinic or to a bariatric surgeon for an assessment and advice on the risks of bariatric surgery.
4. We accept Dr Thomson's opinion. We are satisfied this particular is established.

Complaint 15, particular 5 5. The practitioner failed to appropriately monitor Patient N after prescribing Phentermine as set out in Schedule N in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight

1. Dr Thomson notes that prior to prescribing the medication, it would have been appropriate to arrange for the patient's blood pressure to be monitored while he was taking the medication. We agree with and adopt Dr Thomson's opinion. This particular is established.

Complaint 15, particular 6 6. The practitioner failed to obtain informed consent from Patient N prior to prescribing Phentermine as set out in Schedule N in that he did not ensure: (a) adequate information was available to Patient N 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 which supported the proposed intervention.

1. We refer to and adopt our earlier findings in respect of the obtaining of a proper informed consent. This particular is established.

Complaint 15, particular 7 7. The practitioner failed to engage with Patient N's regular treating general practitioner to ensure Patient N received coordinated care.

1. This patient's case was one where it would clearly have been best practice for the practitioner to engage with this patient's treating general practitioners. However, we are not satisfied his failure to do so was significantly below the standard reasonable to be expected. This particular is not established.

Complaint 15, particular 8 8. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We refer to our earlier conclusions about this particular.

Complaint 15A

1. This is a record keeping complaint in respect of Patient N. We adopt our conclusions about the record keeping complaints set out earlier in these reasons.

Complaint 16

1. This patient's notes as included in the HCCC's documents disclose two sets of consultation notes. The first set were provided by Ms Broadbent on behalf of the practitioner. The second set were provided by Ms Sarah Piazza. The second set of notes reveal a consultation date of 4 February 2016 for a nurse consultation and a consultation by the practitioner and another doctor on 11 February 2016. Electronically generated prescriptions bearing the practitioner's electronic signature are dated 12 February 2016 and counter-signed by the practitioner on an unknown date.
2. The patient was aged 58 years at the date of consultation. During the nurse consultation the patient is recorded as saying her weight was 86kg and her goal weight was 60kg. She reported having four children and suffering from arthritis in her left wrist. She also reported only short term success with other weight loss diets or programs.

Complaint 16, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient O prior to prescribing Phentermine, as set out in Schedule O, 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 contraception.

1. The practitioner does not admit particular 1.
2. We rely on repeat our earlier discussion in respect of this particular in relation to the other patients named in the complaint. We are satisfied this particular is established.

Complaint 16, particular 2 2. The practitioner failed to adequately examine Patient O prior to prescribing Phentermine as set out in Schedule O in that he did not physically examine and/or assess Patient O'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.

1. As with other patients, the practitioner admits this complaint except sub-particular (a).
2. As we have noted earlier in respect of other patients we are satisfied this particular is established.

Complaint 16, particular 3 3. The practitioner failed to order appropriate investigations for Patient O prior to prescribing Phentermine as set out in Schedule O in that he did not order a beta hCG test in circumstances where Phentermine is contraindicated in pregnancy.

1. The practitioner does not admit this particular.
2. Although in his oral evidence, Dr Thomson robustly defended his opinion in his report that pregnancy could not be eliminated we were unable to accept his opinion on this topic. We find the likelihood of pregnancy in this 58 year old woman was so remote that it was not significantly below the standard in failing to order a pregnancy test before prescribing Phentermine. This particular is not established.

Complaint 16, particular 4 4. The practitioner failed to provide appropriate care and treatment for Patient O by prescribing Phentermine as set out in Schedule O 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.

1. The practitioner does not admit this particular.
2. As with other patients where this particular is relied on by the HCCC we find this particular is established for the reasons earlier enunciated.

Complaint 16, particular 5 5. The practitioner failed to provide appropriate care and treatment to Patient O in that he did not refer her to a specialist able to assess her suitability for bariatric surgery or to a specialist weight loss clinic in circumstances where: (a) Patient O's BMI was greater than 35; (b) Patient O had attempted weight loss on more than one occasion without long-term success.

1. Dr Thomson essentially repeated his conclusions about Patient N. His evidence on this topic was not impeached. We accept Dr Thomson's opinion. We are satisfied this particular is established.

Complaint 16, particular 6 6. The practitioner failed to appropriately monitor Patient O after prescribing Phentermine as set out in Schedule O in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. Particular 6 is admitted by the practitioner. We agree that admission is appropriately made. This particular is established.

Complaint 16, particular 7 7. The practitioner failed to obtain informed consent from Patient O prior to prescribing Phentermine as set out in Schedule O in that he did not ensure: (a) adequate information was available to Patient O 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 which supported the proposed intervention.

1. The practitioner does not admit this particular.
2. We repeat our and adopt our earlier findings on this particular which is pressed in respect of all patients.

Complaint 16, particular 8 8. The practitioner failed to engage with Patient O's regular treating general practitioner to ensure Patient O received coordinated care.

1. This particular is denied by the practitioner.
2. Based on our earlier findings, we are not satisfied this particular is established to the requisite standard.

Complaint 16, particular 9 9. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We repeat our earlier findings about this particular.

Complaint 16A

1. This is a record keeping complaint in respect of Patient O.
2. We repeat and rely on our findings in respect of all patients in respect of whom this particular is asserted.

Complaint 17

1. Patient P was aged 50 years at the date of her consultation with the practitioner. Her weight was then 105kg and she expressed her goal weight to be 65-70kg. She had tried other weight loss programs without success. She reported an early menopause not having had a menstrual period for 8 years.

Complaint 17, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient P prior to prescribing Phentermine, as set out in Schedule P, including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals (c) current strategies being employed to achieve treatment goals.

1. The practitioner does not admit particular 1.
2. We rely and repeat our earlier findings about this particular relied on by the HCCC in respect of other patients.

Complaint 17, particular 2 2. The practitioner failed to adequately examine Patient P prior to prescribing Phentermine as set out in Schedule P in that he did not physically examine and/or assess Patient P'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.

1. The practitioner admits this particular except sub-particular (a).
2. As with other patients in respect of whom this particular is alleged, we find the particular is established.

Complaint 17, particular 3 3. The practitioner failed to provide appropriate care and treatment for Patient P by prescribing Phentermine as set out in Schedule P 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

1. The practitioner does not admit this particular.
2. We rely and repeat our earlier findings about this particular relied on by the HCCC in respect of other patients.

Complaint 17, particular 4 4. The practitioner failed to appropriately monitor Patient P after prescribing Phentermine as set out in Schedule P in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular. We agree that this particular is established for our reasons set out earlier in this decision.

Complaint 17, particular 5 5. The practitioner failed to obtain informed consent from Patient P prior to prescribing Phentermine as set out in Schedule P in that he did not ensure: (a) adequate information was available to Patient P to allow him 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 which supported the proposed intervention.

1. This particular, as we have earlier explained is denied in the case of each patient. We rely on and adopt our earlier findings in respect of the giving of informed consent. We find this particular is established.

Complaint 17, particular 6 6. The practitioner failed to engage with Patient P's regular treating general practitioner to ensure Patient P received coordinated care.

1. As with other patients where the HCCC place reliance on this particular, we find the particular is not established for the reasons earlier given by us.

Complaint 17, particular 7 7. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We repeat our earlier conclusions about this particular.

Complaint 17A

1. This is a record keeping complaint in respect of Patient P.
2. We repeat our findings in respect of the record keeping complaint set out earlier in these reasons.

Complaint 18

1. Patient Q is another patient where identical consultation notes, except for the date of consultation, are included in the HCCC documents. The first documents are produced by Ms Broadbent and contain both a nurse consultation and a doctor consultation by the practitioner and another doctor. The second set of documents are identical except they contain the date of consultations. The latter documents were produced in May 2016 by Norwin Sopena.
2. Patient Q is a male, aged 52 years at the date of consultation. He reported a current weight of 105kg and a goal weight of 85kg. He smoked 10 cigarettes per day and had a history of depression for which he had been treated with Zoloft. The consultation records disclose a nurse consultation on 16 January 2015 and a consultation with the practitioner and another doctor on 6 January 2016. An electronic prescription for Phentermine with the practitioner's electronic signature was generated on 7 January 2016 and subsequently counter-signed by the practitioner on an unknown date.

Complaint 18, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient Q prior to prescribing Phentermine, as set out in Schedule Q, including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals (c) current strategies being employed to achieve treatment goals; (d) history of high blood pressure; (e) high cholesterol; (f) mental health; (g) alcohol use.

1. This particular is disputed by the practitioner.
2. We refer to and repeat our earlier findings in respect of other patients in respect of whom a similar particular is relied on by the HCCC.

Complaint 18, particular 2 2. The practitioner failed to adequately examine Patient Q prior to prescribing Phentermine as set out in Schedule Q in that he did not physically examine and/or assess Patient Q'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.

1. As with other patients in respect of whom this particular is alleged, the practitioner admits the particular except sub-particular (a).
2. For our reasons set out in respect of other patients we are satisfied this particular is established.

Complaint 18, particular 3 3. The practitioner failed to provide appropriate care and treatment for Patient Q by prescribing Phentermine as set out in Schedule Q in that he did not: (a) consider and/or manage the patient's high cholesterol and abnormal liver function; (b) consider whether the patient had alcohol dependency or problems controlling his alcohol consumption; (c) consider whether the patient had current symptoms of depression; (d) undertake an adequate assessment of risks and benefits of the treatment; (e) provide adequate advice to the patient regarding lifestyle management of obesity.

1. The practitioner admits sub-particulars (a) (b) and (c). We agree those admissions are properly made. We note and accept Dr Thomson's opinion that the practitioner did not carry out an appropriate risk/benefit assessment where this patient's blood results were abnormal disclosing raised cholesterol and abnormal liver function tests. He opines that the patient was at increased risk of heart attack or stroke which risk would be likely to be increased by the use of Phentermine. He also noted that issues concerning Patient Q's alcohol intake were not explored by the practitioner. We agree with Dr Thomson.
2. In respect of sub-particular (e) we rely on and repeat our findings in respect of Patient B.

Complaint 18, particular 4 4. The practitioner failed to appropriately monitor Patient Q after prescribing Phentermine as set out in Schedule Q in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular. We are satisfied, for reasons earlier enunciated, his concession is appropriate. We find this particular is established.

Complaint 18, particular 5 5. The practitioner failed to obtain informed consent from Patient Q prior to prescribing Phentermine as set out in Schedule Q in that he did not ensure: (a) adequate information was available to Patient Q to allow him 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 which supported the proposed intervention.

1. The practitioner does not admit this particular. On this topic, we repeat and rely on the opinions expressed by Professor Wittert. His opinion has particular relevance for this patient who was exposed to increased risks in taking Phentermine given his blood test results.

Complaint 18, particular 6 6. The practitioner failed to engage with Patient A's regular treating general practitioner to ensure Patient A received coordinated care.

1. No issue was taken by Ms Mathur about this particular. We have treated the particular as if the patient was Patient P and not Patient A as pleaded.
2. The practitioner admits this particular. Dr Thomson opines that the practitioner's failure to engage with the patient's treating general practitioner was not best practice, but was not significantly below the standard expected. We do not accept Dr Thomson's opinion.
3. This patient's blood results disclosed an abnormal liver function test and raised cholesterol levels. We find in these circumstances the practitioner should have contacted the patient's general practitioner to alert that practitioner of the blood tests results. We find the practitioner's failure to do so significantly below the reasonable standard, and the practitioner's concession the particular is established is appropriate.

Complaint 18, particular 7 7. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. For reasons earlier enunciated, we do not find this particular is established.

Complaint 18A

1. This is a record keeping complaint in respect of Patient Q
2. We refer to and rely on our earlier reasons in respect of this particular.

Complaint 19

1. Patient R was a minor aged almost 18 years at the date of his nurse consultation on 2 February 2016. There are again two sets of consultation notes for this Patient. Each notation contained similar information but the set of notes produced in May 2016 includes a date of the nurse and doctor consultations. The records disclose a doctor consultation on 9 February 2016. The patient's weight was recorded in the nurse consultation as 122kg with a goal weight of 85kg.

Complaint 19, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient R prior to prescribing Phentermine, as set out in Schedule R, including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals; (c) current strategies being employed to achieve treatment goals.

1. This particular is not admitted.
2. Dr Thomson relies on his explanation of the type of history which should have been taken for this patient.
3. Although we note that the nurse consultation records the patient had not engaged in previous weight loss program, we are satisfied that the questioning directed to this minor was inadequate in light of the drug prescribed.

Complaint 19, particular 2 2. The practitioner failed to adequately examine Patient R prior to prescribing Phentermine as set out in Schedule R in that he did not physically examine and/or assess Patient R'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.

1. As with other patients in respect of whom this particular is relied on by the HCCC, the practitioner admits the particular save for sub-particular (a).
2. As with every other patient the subject of this complaint, Patient R was not ever seen or examined by the practitioner. For reasons given earlier in these reasons, we are satisfied this particular is established.

Complaint 19, particular 3 3. The practitioner failed to provide appropriate care and treatment for Patient R by prescribing Phentermine as set out in Schedule R 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.

1. The practitioner does not admit this particular.
2. Dr Thomson opines that the practitioner's conduct as asserted in this particular is a departure from the standard and the practitioner's conduct attracts his strong criticism. He notes that the prescribing of Phentermine is contraindicated for people who have a history of drug and/or alcohol abuse and that this was not adequately excluded by the practitioner before prescribing.
3. We agree that the nurse consultation notes disclose this young patient disclosed using alcohol socially, but does not contain any further details.
4. The question of young man's weight of 122kg and a goal weight of 85kg were not explored by the practitioner who simply noted, as with all other patients, "history confirmed".
5. We find the practitioner's consultation fell very far short of the expected standard. No consideration was given to this teenager's history and vulnerabilities before Phentermine was prescribed. This particular is established.

Complaint 19, particular 4 4. The practitioner failed to appropriately monitor Patient R after prescribing Phentermine as set out in Schedule R in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. This particular is admitted by the practitioner. We accept that concession is appropriately made. We are satisfied the particular is established.

Complaint 19, particular 5 5. The practitioner failed to obtain informed consent from Patient R prior to prescribing Phentermine as set out in Schedule R in that he did not ensure: (a) adequate information was available to Patient R to allow him 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 which supported the proposed intervention.

1. The practitioner denies this particular. For reasons given in respect of other patients, we are satisfied this particular is established.

Complaint 19, particular 6 6. The practitioner failed to engage with Patient A's regular treating general practitioner to ensure Patient A received coordinated care.

1. The practitioner admits this particular. Dr Thomson does not find the practitioner's failure to engage with Patient A's regular treating practitioner to be significantly below the expected standard.
2. In the case of the majority of the patients in the Amended Complaint we have accepted and relied on Dr Thomson's opinion that this particular is not established to the requisite standard of significantly below the expected standard. However, in respect of this patient we think the practitioner's concession is an appropriate one.
3. The Patient was not quite 18 years old. He was significantly overweight, and was being prescribed compounded medication not on the ARTG. The patient may or may not have been competent to make the important decision to take the compounded medication. In these circumstances we are satisfied the failure of the practitioner to contact his general practitioner meant that the patient did not receive co-ordinated care he needed. His general practitioner notes reveal his regular doctor only became aware that he had taken what was reported as "Duromine" many months after he ceased the program.
4. The particular is established.

Complaint 19, particular 7 7. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We do not find this particular established.

Complaint 19A

1. This is a record keeping complaint in respect of Patient R.
2. The complaint is admitted by the practitioner. We agree that his records failed to comply with the regulation. The particular is established.

Complaint 20

1. 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.
2. 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.
3. 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.
4. Blood tests, which were noted to be bulk billed, were ordered on a request with the practitioner's signature electronically generated.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.

Complaint 20, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient S prior to prescribing Phentermine, as set out in Schedule S, including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals (c) current strategies being employed to achieve treatment goals.

1. The practitioner does not admit this complaint.
2. Dr Thomson explains that the nurse consultation notes record answers to relevant questions about current and past medical conditions, but he goes on to observe that an adequate history in this case should have included sufficient information for the practitioner to decide whether the medications were safe and effective in the circumstances of this patient's health.
3. We agree with and adopt Dr Thomson's view that the history taken by the practitioner was inadequate in this case particularly in circumstances where the nurse did not record any details of previous weight loss programs and whether any such program had been successful. There was no exploration of the reality or otherwise of the patient's stated goal weight. We are satisfied this particular is established.

Complaint 20, particular 2 2. The practitioner failed to adequately examine Patient S prior to prescribing Phentermine as set out in Schedule S in that he did not physically examine and/or assess Patient S'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.

1. The practitioner admits this particular except for sub-particular (a).
2. As with other patients, there was no physical examination or examination of this patient via Skype or Facebook. We are satisfied this particular is established.

Complaint 20, particular 3 3. The practitioner failed to provide appropriate care and treatment for Patient S by prescribing Phentermine as set out in Schedule S in that he did not: (a) adequately consider and/or manage the patient's hypertension; (b) undertake an adequate assessment of risks and benefits of the treatment; (c) provide adequate advice to the patient regarding lifestyle management of obesity

1. We find Dr Thomson's opinion in respect of this particular is compelling. He said: [Patient S] had a history of high blood pressure (hypertension). Phentermine should be used in caution with patients who have hypertension. Elevated blood pressure is one of the most common adverse reactions of phentermine. Careful monitoring of the blood pressure should be performed when a patient is taking phentermine. Prior to prescribing the medication, it would have been appropriate to arrange for the patient's blood pressure to be monitored while he was taking the medication. There is no record of such arrangements having been made. The concurrent use of alcohol and phentermine should be avoided. The MWI medical notes record that [Patient S] had a daily alcohol consumption of 4-6 drinks. There is no record of [Patient S] being advised that the combination of alcohol and phentermine should be avoided.
2. We adopt Dr Thomson's opinion. This particular is established.

Complaint 20, particular 4 4. The practitioner failed to provide appropriate care and treatment to Patient S in that he did not refer him to a specialist able to assess his suitability for bariatric surgery or a specialist weight loss clinic in circumstances where the patient's BMI was greater than 35.

1. The practitioner does not admit this particular.
2. Dr Thomson notes this patient's BMI placed him in the category of morbid obesity and in these circumstances it would have been appropriate to refer Patient S to a bariatric surgeon for assessment and advice on the risks and benefits of bariatric surgery.
3. As with a number of other patients, Patient S was a vulnerable man with significant weight and other health problems. The practitioner failed to care for this patient. He was treated as a "routine" person who had paid to join the program and received the standard "protocol" without the application of any discernment by the practitioner. The patient's needs and his medical problems should have been holistically considered and acted on. The practitioner failed to do this. We are satisfied this particular is established.

Complaint 20, particular 5 5. The practitioner failed to appropriately monitor Patient S after prescribing Phentermine as set out in Schedule S in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. This particular is admitted by the practitioner. We accept it is an appropriate concession. The particular is established.

Complaint 20, particular 6 6. The practitioner failed to obtain informed consent from Patient S prior to prescribing Phentermine as set out in Schedule S in that he did not ensure: (a) adequate information was available to Patient S to allow him 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 which supported the proposed intervention.

1. The practitioner does not admit this particular. We find, based on Patient S's unchallenged statement that the criteria necessary for a properly informed consent was absent from his telephone consultation with the practitioner.

Complaint 20, particular 7 7. The practitioner failed to engage with Patient A's regular treating general practitioner to ensure Patient A received coordinated care.

1. The practitioner admits this particular. There is no dispute no contact was made by the practitioner with Patient S's general practitioner. On a plain reading of the particular it is established.
2. As with other patients in respect of whom reliance is placed on this particular, Dr Thomson opines that, as the patient was not referred by his general practitioner, the conduct is not significantly below the expected standard. He does, however, note that best practice would nevertheless have been for the practitioner to engage with the general practitioner.
3. We find this was an exceptional case. The patient was morbidly obese. He reported a history of hypertension, a family history of heart disease and significant alcohol consumption. The practitioner did not see the patient, could not monitor his blood pressure or any adverse side effects of the medication prescribed. We are satisfied that in this instance the practitioner should have engaged with the patient's general practitioner and his failure to do so is significantly below the standard reasonably expected.

Complaint 20, particular 8 8. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We refer to and repeat our findings about this complaint.

Complaint 20A

1. This is a record keeping complaint in respect of Patient S.
2. The practitioner does not admit this complaint. As with other record keeping complaints, we are satisfied this complaint is established.

Complaint 21

1. This male patient was aged 34 years at the date of his consultation with the practitioner. The consultation notes reveal a nurse consultation on 10 December 2015 and a doctor consultation on an unspecified date. The patient reported his weight to be 95kg and his goal weight was 75kg. The patient reported smoking a packet of cigarettes per week and that he was a social drinker. The patient's general practitioner records disclose the patient reporting smoking 10 cigarettes per day.
2. Electronic prescriptions were initially generated for this patient on 16 December 2015 with the practitioner's signature and counter-signed on an unknown date.

Complaint 21, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient T prior to prescribing Phentermine, as set out in Schedule T, including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals (c) current strategies being employed to achieve treatment goals.

1. The practitioner does not admit this particular. The nurse consultation notes and the doctor notes do not contain any information about previous weight loss attempts if any or current strategies other than noting the patient walked on a treadmill for 45 minutes twice per week. The practitioner's notes simply record "history confirmed".
2. Dr Thomson opines the history taking was inadequate in a number of respects. We agree with and adopt his opinion. This particular is established.

Complaint 21, particular 2 2. The practitioner failed to adequately examine Patient T prior to prescribing Phentermine as set out in Schedule T in that he did not physically examine and/or assess Patient T'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.

1. The practitioner admits this particular except sub-particular (a).
2. For reasons earlier given in respect of other patients, we are satisfied this particular is established.

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.

1. 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.
2. 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."
3. 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).

Complaint 21, particular 4 4. The practitioner failed to appropriately monitor Patient T after prescribing Phentermine as set out in Schedule T in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. This particular is admitted by the practitioner. We agree his concession is appropriately made.

Complaint 21, particular 5 5. The practitioner failed to obtain informed consent from Patient T prior to prescribing Phentermine as set out in Schedule T in that he did not ensure: (a) adequate information was available to Patient T to allow him 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 which supported the proposed intervention.

1. The practitioner does not admit this particular.
2. As with other patients where this particular is alleged, we find the particular is established for the reasons earlier enunciated.

Complaint 21, particular 6 6. The practitioner failed to engage with Patient T's regular treating general practitioner to ensure Patient T received coordinated care.

1. The practitioner admits this particular as a matter of fact.
2. As with other patients we find it would have been best practice, particularly if the practitioner had fully explored this patient's history of depression and medication prescribed for him to have engaged with his general practitioner. However, we accept Dr Thomson's opinion that, in circumstances where there was no referral to the practitioner his conduct is not significantly below the expected standard.

Complaint 21, particular 7 7. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct

1. We are not satisfied this particular is established for reasons given earlier.

Complaint 21A

1. This is a record keeping complaint in respect of Patient T
2. The practitioner says he admits this complaint (if it is the complete record). For our reasons given when dealing collectively with the record keeping complaints we find this complaint is established.

Complaint 22

1. The female nurse, Patient U, was aged 47 years at the date of her consultations with the nurse and practitioner at MWI. She consulted a nurse on 15 December 2015, and had a doctor consultation the following day. However, the doctor notes are notes attributed to another doctor, not the practitioner. Notwithstanding this fact, electronic prescriptions were generated with the practitioner's signature on 18 December 2015 and counter-signed by him on an unknown date. A further electronic prescription for Phentermine was generated on 21 March 2016 bearing the practitioner's electronic signature, but not counter-signed by him.
2. We note that the history taken by the nurse is in some respects more detailed than for other patients particularly in response to questions about her medication. This is likely to be as a consequence of the patient herself being a nurse, and accurately reporting her medical history.

Complaint 22, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient U prior to prescribing Phentermine, as set out in Schedule U, including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals (c) current strategies being employed to achieve treatment goals; (d) her prior abdominoplasty procedure; (e) current or planned pregnancy; (f) current contraception.

1. The practitioner does not admit particular 1.
2. Dr Thomson's opinion proceeds on the basis that the practitioner failed to obtain an adequate history from Patient U. He does note that the doctor consultation was not with the practitioner, but the practitioner was the prescriber of an electronic prescription bearing his electronic signature that was sent to the compounding pharmacy and dispensed to Patient U.
3. It is self-evident when the practitioner did not even have a telephone conversation with Patient U before permitting an electronic prescription to be generated for her on two occasions that the particular is established. We find the practitioner's conduct to be a significant departure from the standard to be expected by a doctor prescribing drugs such as the compounded Phentermine prescribed in this case.

Complaint 22, particular 2 2. The practitioner failed to adequately examine Patient U prior to prescribing Phentermine as set out in Schedule U in that he did not physically examine and/or assess Patient U'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.

1. The practitioner admits this particular except for sub-particular (a).
2. Given our findings in respect of particular 1, it is difficult to understand how the practitioner can maintain he was able to assess Patient's U's capacity to engage and communicate rationally. We find this particular is established. The practitioner did not see this patient or speak to her.

Complaint 22, particular 3 3. The practitioner failed to order appropriate investigations for Patient U prior to prescribing Phentermine as set out in Schedule U in that he did not order a beta hCG test in circumstances where Phentermine is contraindicated in pregnancy.

1. The practitioner does not admit it was significantly below the expected standard because he failed to order a pregnancy test.
2. This nurse who was aged 47 years and the mother of two children is not recorded in the nurse's consultation was being menopausal. She was however noted to be taking Monfeme, an oral contraceptive. Although we do not find the practitioner was required to order a pregnancy test, he was required, when taking the clinical history, to ascertain that she was taking her oral contraceptive regularly. In these circumstances we accept the practitioner should, if he even read the patient's notes before the electronic prescription was generated, have realised she could possibly be or become pregnant and in those circumstances she should not be taking Phentermine. This particular is established to the requisite standard.

Complaint 22, particular 4 4. The practitioner failed to provide appropriate care and treatment for Patient U by prescribing Phentermine as set out in Schedule U 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.

1. The practitioner does not admit this particular.
2. Patient U reported a history of mild depression. Dr Thomson notes: "The nurse's consultation notes record that [Patient U] had a history of depression and was taking Pristiq (desvenlafaxine) and was also taking medications containing codeine. 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. The addition of codeine may increase the risk of serotonin syndrome. A history of depression is listed as one of the contraindications for the use of phentermine."
3. We accept Dr Thomson's criticisms of the practitioner prescribing for this patient with her history of depression and having regard to the medications she disclosed as using in the nurse consultation.

Complaint 22, particular 5 5. The practitioner failed to appropriately monitor Patient U after prescribing Phentermine as set out in Schedule U in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight

1. The practitioner admits this particular. We find that concession is appropriately made in circumstances where the practitioner did not engage in any consultation with this patient.

Complaint 22, particular 6 6. The practitioner failed to obtain informed consent from Patient U prior to prescribing Phentermine as set out in Schedule U in that he did not ensure: (a) adequate information was available to Patient U 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 which supported the proposed intervention.

1. The practitioner denies this particular. We rely on the opinion of Professor Wittert on this topic. The steps he outlines were clearly not undertaken by the practitioner. For reasons enunciated in respect of other patients, we are satisfied this particular is established.

Complaint 22, particular 7 7. The practitioner failed to engage with Patient U's regular treating general practitioner to ensure Patient U received coordinated care.

1. The practitioner admits this particular as a matter of fact. We repeat our earlier observations about the plain reading of this particular. However, we agree with and accept Dr Thomson's view that the failure to engage with Patient U's treating general practitioner, while not best practice, was not significantly below the standard reasonably to be expected.

Complaint 22, particular 8 8. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We repeat our findings about this particular.

Complaint 22A

1. This is a record keeping complaint in respect of Patient U
2. This complaint is admitted by the practitioner. We repeat our global findings about the record keeping complaints. This particular is established.

Complaint 23

1. The records produced do not contain any nurse or doctor consultation notes. The patient's pathology results are dated and refer to collection on 23 September 2015 and that the patient was then aged 30 years. An electronic signature prescription was generated for this patient on 4 December 2015 by the practitioner and counter-signed on an unknown date. Further Phentermine was prescribed on 8 February 2016 by electronic prescription, again counter-signed on an unknown date. The unchallenged schedule in respect of this patient discloses prescribing on 18 September 2015 of Diethylpropion. The prescription is not contained in the dispensing records of the compounding pharmacies.
2. A prescription for Phentermine was dispensed on 4 December 2015. We infer this was the first medication received by the patient. A "Protocol A" script was dispensed on 8 February 2016. Other than copies of scripts, pathology reports, no records were produced for this patient.

Complaint 23, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient V prior to prescribing Phentermine and diethylpropion, as set out in Schedule V, 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 contraception.

1. The practitioner denies this particular. Dr Thomson set outs details of this patient record noting a doctor consultation on 18 September, which he assumes to be 2015, and that the patient was on the oral conceptive pill and drinks alcohol socially.
2. This is one of only two patients in the cohort of 26 patients for whom there is not a record of a nurse or doctor consultation. We are not sure if this is an accidental omission. It is apparent that Dr Thomson has based his opinion on the copies of prescriptions provided, and the "running sheet" being entries from MWI staff principally relating to telephone contacts with the patient.
3. Doing the best we can, we find it would be unsafe to make any findings when it is apparent that the records for this patient are incomplete. We are not satisfied this particular is established.

Complaint 23, particular 2 2. The practitioner failed to adequately examine Patient V prior to prescribing Phentermine and Diethylpropion as set out in Schedule V in that he did not physically examine and/or assess Patient V'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.

1. The practitioner admits this particular except sub-particular (a). As with every other patient the subject of these proceedings, there was no physical examination. We are satisfied this particular is established.

Complaint 23, particular 3 3. The practitioner failed to order appropriate investigations for Patient V prior to prescribing Phentermine and diethylpropion as set out in Schedule V in that he did not order a beta hCG test and Phentermine is contraindicated in pregnancy.

1. The practitioner admits he did not order a pregnancy test, but does not admit his conduct is significantly below the expected standard.
2. This patient was aged 30 years. The running sheet discloses she was taking an oral contraceptive. We are satisfied the practitioner's conduct was not best practice but we do not find it was significantly below the expected standard where the risk of pregnancy, while the patient remained on an oral conceptive, was minimal. We note with this patient, as with Patient U, the practitioner should have advised the patient of the need to maintain her oral contraceptive use, or some other form of contraception.

Complaint 23, particular 4 4. The practitioner failed to provide appropriate care and treatment for Patient V by prescribing Phentermine as set out in Schedule V 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.

1. In his response table, the practitioner states he does not admit sub-particulars (b) and (c). We infer that the table contains a typographical error and that as with other patients in respect of whom this complaint is agitated, the non- admission is in respect of sub-particular (b).
2. As with other patients in respect of whom reliance is placed on this particular, we find the particular is established.

Complaint 23, particular 5 5. The practitioner failed to appropriately monitor Patient V after prescribing Phentermine and diethylpropion as set out in Schedule V in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular. This is an appropriate concession.

Complaint 23, particular 6 6. The practitioner failed to obtain informed consent from Patient V prior to prescribing Phentermine and diethylpropion as set out in Schedule V 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 which supported the proposed intervention.

1. As with other patients, the practitioner does not admit this particular.
2. We note there are no doctor notes for this patient. It is inherently likely, given our findings in respect of the practitioner's unsatisfactory evidence on this topic, the lack of information sheets or product information sheets, that the practitioner failed to obtain an informed consent. However on balance, because of the lack of doctor records, we are not satisfied this particular is established.

Complaint 23, particular 7 7. The practitioner failed to engage with Patient V's regular treating general practitioner to ensure Patient V received coordinated care.

1. The practitioner admits this particular.
2. As with other patients, we find that it would have been best practice to engage with the patient's regular treating general practitioner when he had prescribed Phentermine and diethylpropion particularly in circumstances where this young woman was prescribed oral contraceptives. However, we accept Dr Thomson's opinion that his failure to do so was not significantly below the standard.

Complaint 23, particular 8 8. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct

1. We refer to our earlier findings about this particular.

Complaint 23A

1. This is a record keeping complaint in respect of Patient V. As noted above, this is the only patient in respect of whom a nurse/doctor consultation was not included in the HCCC's material.
2. Given the lack of records for this patient, we are not satisfied to the Briginshaw standard that this complaint is established.

Complaint 24

1. This female patient was aged 30 years at the date of her consultation with a nurse on 1 February 2016 and subsequently with the practitioner on 8 February 2016. She reported her weight as 130-135kg with a goal weight of 80kg. The nurse consultation records disclose that Patient W had tried shakes, and Weight Watchers and Jenny Craig programs without success. She further reported her father had died at age 45 from heart disease/stroke and her mother had died at age 48 with heart disease.
2. The practitioner prescribed Phentermine for this patient on 9 February 2016 using an electronic script and signature and was counter-signed on an unknown date. The patient's medical records from her general practitioner disclose that she had been an endocrinologist in late 2015 and had consulted a dietician about her weight, her last appointment occurring shortly after her consultation with the practitioner.

Complaint 24, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient W prior to prescribing Phentermine, as set out in Schedule W, including: (a) expectations and goals of treatment; (b) previous attempts to achieve treatment goals (c) current strategies being employed to achieve treatment goals.

1. The practitioner does not admit this particular.
2. The nurse notes for this patient disclosed previous failed attempts at weight loss, and a patient who was significantly obese. The history obtained and recorded in the nurse notes disclosed a need for the obtaining of a detailed history from this patient. We find that the practitioner's methodology in obtaining this patient's medical history were entirely inadequate. We accept Dr Thomson's opinion that the practitioner's failure was significantly below the expected standard. We find this particular is established.

Complaint 24, particular 2 2. The practitioner failed to adequately examine Patient W prior to prescribing Phentermine, as set out in Schedule W, in that he did not physically examine and/or assess Patient W'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.

1. The practitioner admits this particular. We find the concession is appropriately made.

Complaint 24, particular 3 3. The practitioner failed to order appropriate investigations for Patient W prior to prescribing Phentermine as set out in Schedule W in that he did not order a beta hCG test in circumstances where Phentermine is contraindicated in pregnancy.

1. The nurse consultation notes for this patient do not record any information concerning contraception, pregnancy or intended pregnancy. The only recording is that the patient does not have any children.
2. Noting this patient's age and the lack of information about pregnancy or contraception as well as the fact that Phentermine is contraindicated in pregnancy, we are satisfied this particular is established. In reaching this finding we agree with and adopt Dr Thomson's opinion in respect of this particular.

Complaint 24, particular 4 4. The practitioner failed to provide appropriate care and treatment for Patient W by prescribing Phentermine as set out in Schedule W in that he did not: (a) adequately consider and/or manage the patient's raised thyroid levels which were possibly associated with her obesity; (b) undertake an adequate assessment of risks and benefits of the treatment; (c) provide adequate advice to the patient regarding lifestyle management of obesity.

1. The practitioner admits sub-particular (a) but does not admit his failure was significantly below the expected standard.
2. Dr Thomson's opinion on this particular is relevant. He notes: The results of the blood tests Dr Goyer requested included a raised thyroid stimulating hormone (TSH) level. This indicates that the patient may have hypothyroidism (underactive thyroid gland). Hypothyroidism is a treatable condition and is a possible cause or contributor to [Patient W]'s obesity. Further investigations for clarification and management (if required) of this problem should have occurred prior to prescribing phentermine.
3. We agree with Dr Thomson that there was no appropriate care provided to this patient whose blood results disclosed abnormalities. No record is made by the practitioner of any discussion about the blood test results nor is there any consideration of whether in the circumstances of Patient W's raised Thyroid Stimulating Hormone levels, rather she was just prescribed Phentermine as were other patients who contracted with MWI.

Complaint 24, particular 9 9. The practitioner failed to provide appropriate care and treatment to Patient W 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 W's BMI was greater than 45; (b) Patient W had attempted weight loss on approximately three occasions without long-term success.

1. We note it appears by reason of a typographical or formatting error this particular is referred to as particular 9. The practitioner has however in his table provided a response to the particular (noted as particular 4).
2. The practitioner does not admit this particular.
3. Dr Thomson is critical of the practitioner's failure to refer this patient for specialist assessment. He opines: [Patient W] should have been referred for specialist care because she has morbid obesity, she may have had hypothyroidism, and she had reported a history of failure from 3 past attempts to manage her weight problem. Calculating from the information recorded in the nurse's consultation on 1/2/16, [Patient W]'s BMI was between 47 and 49. A BMI of 35 or greater is classified as morbid obesity. Her thyroid function tests were abnormal suggesting a treatable condition may have caused or contributed to [Patient W]'s obesity. The MWI medical history reports that she had 'no success' with 'shakes, Weight Watchers and Jenny Craig'. Based on the information that Dr Goyer had available, it would have been appropriate to refer her to a specialist obesity management clinic, or an endocrinologist.
4. We agree with Dr Thomson, and find the particular is established.

Complaint 24, particular 5 5. The practitioner failed to appropriately monitor Patient W after prescribing Phentermine as set out in Schedule W in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular. We are satisfied that concession is appropriately made.

Complaint 24, particular 6 6. The practitioner failed to obtain informed consent from Patient W prior to prescribing Phentermine as set out in Schedule W in that he did not ensure: (a) adequate information was available to Patient W 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 which supported the proposed intervention.

1. The practitioner does not admit this particular. For reasons given in respect of other patients we are satisfied this particular is established.

Complaint 24, particular 7 7. The practitioner failed to engage with Patient W's regular treating general practitioner to ensure Patient W received coordinated care.

1. The practitioner admits this particular. Dr Thomson opines that engagement with the patient's treating practitioner would have been best practice, but is not significantly below the standard to be reasonably expected.
2. We find in the circumstances of this young grossly obese woman who had abnormal blood results proper patient care required the practitioner to engage with her general practitioner. Had he done so he would have become aware of her referral to an endocrinologist. We depart from Dr Thomson's opinion about this particular. We find the practitioner's conduct to be significantly below the expected standard.

Complaint 24, particular 8 8. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We refer to and repeat our earlier findings in respect of this particular.

Complaint 24A

1. This is a record keeping complaint in respect of Patient W
2. We refer to and repeat our earlier findings about this record keeping complaint.

Complaint 25

1. We commence our discussion of this complaint noting that there are no nurse or doctor consultations for this patient and the running sheets contain no reference to any doctor consultation notes. No additional records for the patient are found annexed to the statement of Ms Pahwa.
2. The patient's treating doctor wrote to the HCCC on 11 April 2017 noting that the patient did not wish to be involved in the investigation, did not consent to the release of his records and that the patient was suffering from Parkinson's disease.

Complaint 25, particular 1 1. The inappropriately practitioner failed to obtain a medical history from Patient X prior to prescribing hCG and diethylpropion as set out in Schedule X.

1. The practitioner does not admit this particular. Dr Thomson notes he cannot comment on the particular in the absence of any notes of the practitioner's consultation with the patient. He speculates that either the notes have been lost or never existed.
2. The practitioner, as a director of MWI, failed to cause this patient's notes to be provided in response to the statutory demand made under s 34A of the Health Care Complaints Act. He did not produce records for this patient in response to the PSU request.
3. While we accept the practitioner had the responsibility in March and later in May 2016 to produce all records, we cannot be satisfied to the Briginshaw standard that records were never kept for this patient. The copies of the prescriptions in the HCCC material disclose the practitioner prescribed Diethylpropion for this patient on 19 October 2015 using an electronically generated prescription counter-signed on an unknown date, that he prescribed hCG sublingual drops on 21 October 2015 (noted "email confirmed with doctor"). Two other electronic prescription for hCG drops were generated on 19 October 2015 and 2 November 201l. In each case the electronic prescription was counter-signed on an unknown date.
4. We are not satisfied that notes, albeit inadequate if similar to other patients, were not kept at all. We are not satisfied this particular is established.

Complaint 25, particular 2 2. The practitioner failed to adequately examine Patient X prior to prescribing hCG and diethylpropion as set out in Schedule X in that he did not physically examine and/or assess Patient X'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.

1. The practitioner admits this particular. Although there are no nurse or doctor consultation notes for this patient, he was like all other patients of MWI never examined physically by the practitioner. We are satisfied the practitioner's concession is appropriately made.

Complaint 25, particular 3 3. The practitioner failed to provide appropriate care and treatment for Patient X by prescribing hCG and diethylpropion as set out in Schedule X 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; (c) adequately consider the patient's diagnosis of Parkinson's Disease.

1. The practitioner admits sub-particulars (b) and (c). On the limited evidence before us we find that the practitioner's concessions of sub-particular (b) and (c) should be accepted. In the absence of notes, we cannot be certain that the practitioner failed to undertake an adequate assessment of risks and benefit of treatment. However, given the practitioner's proforma recording in all the medical consultation notes available to us, we have no reason to conclude that an adequate assessment of risks and benefits was undertaken by the practitioner. We find, based on the practitioner's concessions, that particular 3 is established in part.

Complaint 25, particular 4 4. The practitioner failed to appropriately monitor Patient X after prescribing hCG and diethylpropion as set out in Schedule X in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular. We accept the concession is properly made.

Complaint 25, particular 5 5. The practitioner failed to obtain informed consent from Patient X prior to prescribing hCG and diethylpropion as set out in Schedule X in that he did not ensure: (a) adequate information was available to the patient to allow him 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 which supported the proposed intervention.

1. We have already noted the absence of notes in respect of this particular which is not admitted by the practitioner. The practitioner gave oral evidence of the process he described he engaged in to ensure a patient had informed consent which relied on the provision of an information sheet and or product information. We have earlier noted no evidence of such sheets has been produced by the practitioner and the patient statements we do have do not support his assertions.
2. However, as with Patient V, in the absence of the doctor's notes, we find it would be unsafe to find the particular is established.

Complaint 25, particular 6 6. The practitioner failed to engage with Patient X's regular treating general practitioner to ensure Patient X received coordinated care.

1. The practitioner admits as a matter of fact he did not engage with Patient X's regular treating practitioner. We rely on and repeat our conclusions about other patients where we accept and adopt Dr Thomson's opinion that the failing to engage was not best practice but the practitioner's conduct was significantly below the standard expected.

Complaint 25, particular 7 7. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We rely on and repeat our earlier findings about this particular.

Complaint 25A

1. This is a record keeping complaint in respect of Patient X.
2. This complaint is denied by the practitioner. For reasons set out earlier in respect of this patient's records, we are not satisfied this particular is established.

Complaint 26

1. As with Patient X, no nurse or doctor consultation notes have been produced by the practitioner or MWI for this patient. The running sheet records a doctor consultation on 12 October 2015 and pathology results dated 22 October 2015 were provided to the practitioner. Patient Y's age is recorded. She was aged 44 years at the date she commenced the MWI program.
2. The practitioner caused electronically generated prescriptions to be generated for this patient 14 October 2015 which were counter-signed by him on an unknown date.

Complaint 26, particular 1 1. The practitioner failed to obtain an adequate medical history for Patient Y prior to prescribing Phentermine and diethylpropion, as set out in Schedule Y, 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 contraception; (f) sufficient details of her alcohol consumption; (g) details of current management for her Polycystic Ovary Syndrome ("PCOS") including past and current medications prescribed and any complications associated with her PCOS.

1. The practitioner admits this particular, but says his conduct was not significantly below the standard. It is unclear to us why he admits this particular in the absence of notes, when he does not admit a similar particular in respect of the patient the subject of complaint 23A.
2. We refer to our earlier findings in respect of the inadequate history taken by the practitioner in respect of other patients named in the complaint. We also repeat our findings that we cannot be satisfied to the Briginshaw standard that no notes were recorded by the practitioner. It is possible due to the unreliability of the software program which the practitioner initially used at MWI that any records taken were lost. However, as the practitioner's answers in cross-examination disclosed, although he knew the software was unreliable, he did not use an alternate means of recording patient details such as hand-written notes.
3. Significantly the practitioner's position is that he admits this particular. We accept that admission appears appropriate and consistent with his failure to obtain the information set out in the sub-particulars in respect of other patients. As with other patients, we are satisfied this particular is established, and that the practitioner's conduct was significantly below the expected standard.

Complaint 26, particular 2 2. The practitioner failed to adequately examine Patient Y prior to prescribing Phentermine and diethylpropion as set out in Schedule Y in that he did not physically examine and/or assess Patient Y'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.

1. The practitioner admits this particular, but does not concede that his conduct in failing to examine Patient Y was significantly below the expected standard. We do not agree. As we have explained earlier in these reasons, prescribing stimulant medication without a proper physical examination was significantly below the expected standard. In this regard we accept and adopt the findings of Professor Wittert.

Complaint 26, particular 3 3. The practitioner failed to order appropriate investigations for Patient Y prior to prescribing Phentermine and diethylpropion as set out in Schedule Y in that he did not order a beta hCG test in circumstances where Phentermine is contraindicated in pregnancy.

1. The practitioner does not admit this particular.
2. There is no record of any investigation or inquiry conducted by the practitioner about whether this patient was pregnant, wished to become pregnant, or was using contraception. The pathology reports for this patient confirm a beta hCG test was not performed. In the absence of any doctor consultation records, other than those noted in the running sheet raises a concern whether the particular can be established to the Briginshaw standard. On balance, we are satisfied it is appropriate to draw the inference from the practitioner's conduct in failing to order pregnancy tests for all other female patients together with the absence of such test in the pathology results, that the particular is established.
3. We agree with and accept Dr Thomson's opinion that the practitioner's conduct was significantly below the expected standard.

Complaint 26, particular 4 4. The practitioner failed to provide appropriate care and treatment for Patient Y by prescribing Phentermine and diethylpropion as set out in Schedule Y 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.

1. The practitioner does not admit this particular.
2. We are satisfied given the practitioner's pro forma prescribing, and the pattern he adopted with other patients in respect of whom doctor consultation records are available, that this particular is established. In reaching this conclusion, we find that the practitioner prescribed for Patient Y eight days before he received her pathology reports.
3. In the absence of doctor notes, we had some concern that the HCCC had not proved the particular to the Briginshaw standard. We do not doubt given the practitioner's pro forma prescribing, and evidence of Ms Broadbent about how prescriptions were generated, the pattern he adopted with other patients in respect of whom doctor consultation records are available, that it is likely he failed to undertake a risk and benefit analysis, or provide adequate advice about the management of the patient's obesity. We are fortified in our conclusions about the practitioner's method of prescribing and find that the practitioner prescribed for Patient Y eight days before he received her pathology reports. However, in the absence of any doctor or nurse notes we cannot be satisfied that this particular is established.

Complaint 26, particular 5 5. The practitioner failed to refer Patient Y to a specialist or specialists in relation to her PCOS including: (a) a gynaecologist; (b) an endocrinologist; (c) a psychologist; (d) an exercise physiologist; (e) a dietician.

1. The practitioner's table setting out his reply infers he admits this particular, however he does not admit his conduct is significantly below the expected standard.
2. This patient's running sheet discloses she reported a history of PCOS. The practitioner does not disclose that he ever referred a patient for specialist consultation. In his tabled reply the practitioner does not directly admit this particular. We infer he does so, as he notes that the particular is not admitted to be significantly below standard and the admitted column in the table is left blank.
3. Dr Thomson comments on the patient's PCOS as follows: Polycystic Ovary Syndrome is a complex condition with significant complications. Optimum management would involve coordinated care with diagnostic and management advice from relevant specialists. Depending on the patient's age, symptoms and goals, it might be appropriate for her to be reviewed by a gynaecologist, endocrinologist, psychologist, exercise physiologist and dietician.
4. The experts do not proffer an opinion whether the failure to refer this patient for specialist care was significantly below the standard expected. While we accept a referral would have been best practice ensuring holistic care for this patient, we are not satisfied the practitioner's failure to do so was significantly below the standard. Further, and of greater significance, is the lack of doctor notes which, although unlikely, may have disclosed a specialist referral. The particular is not established.

Complaint 26, particular 6 6. The practitioner failed to appropriately monitor Patient Y after prescribing Phentermine and diethylpropion as set out in Schedule Y in that he did not monitor or assess: (a) pulse; (b) blood pressure; (c) change in weight.

1. The practitioner admits this particular. That concession is an appropriate one. We are satisfied this particular is established.

Complaint 26, particular 7 7. The practitioner failed to obtain informed consent from Patient Y prior to prescribing Phentermine and diethylpropion as set out in Schedule Y 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 which supported the proposed intervention

1. The practitioner does not admit this particular.
2. As with other patients in respect of whom this particular is agitated, and adopting Professor Wittert's opinion on this topic, we are satisfied that the particular is established. In the case of Patient Y, who reported anxiety, which condition contraindicated the practitioner's prescribing in this instance, proper explanation prior to prescribing was especially important.

Complaint 26, particular 8 8. The practitioner failed to engage with Patient Y's regular treating general practitioner to ensure Patient Y received coordinated care.

1. The practitioner admits as a matter of fact he did not engage with the patient's general practitioner. As with other patients, Dr Thomson opines that it would have been best practice, but the practitioner's failure to engage was not significantly below the standard. We accept Dr Thomson's opinion.

Complaint 26, particular 9 9. Two or more of the particulars taken together demonstrate a course of conduct which justifies a finding of unsatisfactory professional conduct.

1. We refer to and repeat our findings in respect of this particular.

Complaint 27

1. 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.
2. We have earlier in these reasons set out the definition of professional misconduct as found in s 139 E of the National Law.
3. We have found each of the particulars of Complaint 1 established.
4. 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.
5. The practitioner's prescribing involved hundreds of prescriptions provided to patients without any adequate risk assessment.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.

Future conduct of the matter

1. We propose that the matter be listed for directions on 30 August 2019 at 9.30am to fix hearing dates for the Stage 2 proceedings.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 August 2019