Health Care Complaints Commission v Grech

Evidence

1. The HCCC tendered three volumes of material with 85 tabs. Tabs 33, 34 and 35 were not relied on apart from notebook entries and photographs attached to Constable Hohn's statement dated 23 June 2018. Dr Grech provided a statement dated 22 June 2020 and other material in support of his case.
2. The HCCC requested Dr Delma Mullins, a general practitioner from the regional town of Muswellbrook, NSW to provide an independent expert report. Dr Mullins provided a report dated 23 September 2019 based on Dr Grech's clinical notes. This report was prepared before the complaint itself was drafted. That is why the questions and answers in the report do not always precisely reflect the particulars in the complaint.
3. Dr Grech was critical of Dr Mullins' report on several counts. First, regardless of the degree of seriousness of the conduct, it was Dr Mullins' view that almost every allegation was significantly below the standard of a practitioner of an equivalent level of training or experience and invited her strong criticism. Secondly, she did not modify her opinion to any significant extent based on the information Dr Grech provided in his statement. For example, despite acknowledging that practitioners commonly take into account matters that are not documented in the clinical records, she was not prepared to assume that Dr Grech had turned his mind to any issue unless it was recorded in his notes. Thirdly, Dr Mullins expressed some personal views or impressions that were either mistaken or irrelevant. Fourthly, in some instances, her opinion lacked a factual basis, for example as to what is a "safe use" of certain medications.
4. With some minor qualifications, we agree with these criticisms. In Dr Mullins favour, she did modify her evidence in some respects to clarify that any personal views were irrelevant and that she may have been mistaken about some of the facts. She said in her supplementary report that Dr Grech's statement had not changed her expert opinion, but added some further comments and, in several instances, addressed the substance of Dr Grech's assertions. However, our overall impression was that in many instances, Dr Mullins was unwilling to modify her opinion, even when she had apparently made a concession in cross-examination or where further evidence was clearly relevant. She was, in many instances, too quick to agree with propositions put by the lawyer from the HCCC who requested the report, and too rigid in her responses to Dr Grech's lawyer. Each of these factors make us cautious about her opinions. We elaborate on these points where they arise throughout the reasons.
5. Ultimately, we must make findings of fact based on all the evidence. The Tribunal is not bound by the rules of evidence and, strictly speaking, "neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT": Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, Leeming JA with whom Gleeson JA agreed. While we are not bound to adopt the approach set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 or in s 140 of the Evidence Act 1995 (NSW), that general approach may be justified. When deciding whether the evidence is sufficient to meet the civil standard of proof, we will be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding.
6. While we must give due weight to Dr Mullins' opinions, we do not have to agree with them. As Street CJ (Moffitt P and Glass JA agreeing) said in Kalil v Bray (1977) 1 NSWLR 256 at 262, an expert tribunal such as ours may "draw upon its own expert resources to resolve such questions of expert science as might emerge from the objective, or lay facts proved in evidence before it". In doing so, we must give due weight to the expert evidence but "the ultimate responsibility for forming an expert view upon which the disciplinary powers will be exercised or withheld is with the tribunal itself." (See also Siddik v WorkCover Authority of NSW (2008) 6 DDCR 228; [2008] NSWCA 116 at [98]).

Complaint 1.1 - prescribing erectile dysfunction drugs for Patient A

Unsatisfactory professional conduct

1. The complaint is that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law. Those provisions define "unsatisfactory professional conduct" to include: (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. . . . (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
2. For this complaint, it is said that Dr Grech engaged in conduct that demonstrates that the judgment possessed or care exercised by him is significantly below the relevant standard. Alternatively, he engaged in other improper or unethical conduct relating to the practice of medicine. In our view, the word "other" in s 139B(1)(l) limits the operation of that provision to conduct not falling within s 139B(1)(a) - (k): Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [159]- [160]; Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 at [31].
3. For each particular of a complaint of unsatisfactory professional conduct under s 139B(1)(l), where that provision is relied on in the alternative, we have found that the conduct relates to the judgment possessed or the care exercised by Dr Grech as provided by s 139B(1)(a). It follows, that we do not need to consider whether that conduct also comes within the definition of "other improper or unethical conduct."

Particulars

1. The particulars of Complaint 1.1 are that: Between around 11 September 2014 and 21 March 2018 the practitioner inappropriately prescribed the schedule 4 drugs, sildenafil, tadalafil and vardenafil for erectile dysfunction, to Patient A on the dates and in the quantities set out in the schedule attached and marked A in circumstances where: a. he failed to perform an adequate medical assessment prior to prescribing; b. he failed to adequately monitor the efficacy and side effects of the drugs prescribed; c. the prescribing was for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 34 of the Poisons and Therapeutic Goods Regulation 2008 NSW ('the PTG Reg').
2. Dr Grech denies this particular. We have not referred to evidence of what happened before September 2014.

Background

1. Patient A was born in 1962 and had been Dr Grech's patient for about 20 years. He was an occasional smoker, consumed alcohol, used recreational drugs and was, on rare occasions, temporarily homeless. Dr Grech had prescribed erectile dysfunction drugs years earlier. For example, the notes indicate that Dr Grech initially prescribed tadalafil (Cialis) for erectile dysfunction in July 2009, however that conduct is not the subject of the complaint. As at July 2018, Patient A's current medications were listed as including tadalafil (Cialis) and sildenafil (Viagra) daily. At various times, Dr Grech also prescribed vardenafil.

Requirements/standard

1. The first and second particulars relate to assessment and monitoring. Before prescribing a Schedule 4 drug such as tadalafil, sildenafil and vardenafil, a practitioner should perform an adequate medical assessment. The practitioner must also monitor the efficacy and side effects of the erectile dysfunction drugs he prescribed for Patient A.
2. The Royal Australian College of General Practitioners (RACGP) has published a guideline called Prescribing drugs of dependence in general Practice. Part B covers benzodiazepines and Parts C1 and C2 cover opioids. Section 3.1 of Good Medical Practice: A code of conduct for doctors in Australia, March 2014, published by the Medical Board of Australia, provides general guidance about providing good patient care: In clinical practice, the care of your patient is your primary concern. Providing good patient care includes: 3.1.1 Assessing the patient, taking into account the history, the patient's views, and an appropriate physical examination. The history includes relevant psychological, social and cultural aspects. 3.1.2 Formulating and implementing a suitable management plan (including arranging investigations and providing information, a diagnosis, treatment and advice). 3.1.3 Facilitating coordination and continuity of care. 3.1.4 Referring a patient to another practitioner when this is in the patient's best interests or as required by legislation.10 3.1.5 Recognising and respecting patients' rights to make their own decisions.
3. The third particular is that the prescribing was for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 34 of the Poisons and Therapeutic Goods Regulation 2008 (NSW). That provision states that: 34 Quantity and purpose of prescriptions to be appropriate An authorised practitioner must not issue a prescription for a restricted substance in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. Maximum penalty - 20 penalty units or imprisonment for 6 months, or both.
4. No product information or guideline was in evidence as to the recognised therapeutic standard for prescribing erectile dysfunction medication. Dr Mullins referred to an article from the Australian Family Physician entitled, "Much more than prescribing a pill - assessment and treatment of erectile dysfunction by the general practitioner" AFP, vol 46, No 9, September 2017.

Assessment

1. In his statement, Dr Grech maintains that Patient A's initial assessment was on 27 September 2011 - well before the period covered by the complaint. At that time, Dr Grech maintains that he assessed Patient A when "all necessary pathology (was) performed for a man of his age with special consideration given to the possibility of sexually transmitted infections and hypogonadism, a common cause of erectile dysfunction from which he occasionally suffered".
2. Dr Grech said his routine was to ask about mode of onset and details including frequency of the erectile dysfunction. He said he would have taken Patient A's blood pressure, tested his reflexes and obtained a hormonal profile. Dr Grech admitted that he did not perform a genital examination but expressed the view that even if erectile dysfunction is partly psychological, there is almost always some physiological element. He concluded at the time that everything was normal.
3. According to Dr Grech, managing a patient with Patient A's lifestyle is challenging. However, his notes do not address lifestyle risks associated with sexual activity. While he says he discussed lifestyle risks on many occasions, he did not always document his discussions in detail. He pointed to one example of assessing Patient A in September 2011 but, as we have said, that did not occur during the complaint period. Dr Grech acknowledges that his notes are scant but he considers them to be sufficient to communicate the basis for his treatment decisions.

Monitoring

1. Dr Grech refers to clinical notes from "BGP" (the Broadway practice) on 29/6/17 and 15/2/18 as evidence of him recording the efficacy and side effects of the drugs during the period of the complaint. In June 2017 Patient A was complaining that Cialis (tadalafil) was not working when taken with Valium. Dr Grech told him not to use any sedatives when he is expecting to engage in sexual activity. In February 2018 Patient A was referred for a pathology test for sexually transmitted diseases.
2. Dr Grech's view is that the drugs he prescribed for erectile dysfunction are "quite safe" as long as nitrates are avoided. He now accepts that he prescribed erectile dysfunction medication over a long period of time and ideally, he should have re-examined Patient A annually. He took his blood pressure in 2012 but agrees that he did not regularly monitor Patient A's blood pressure. Because he had underlying cardio-vascular pathology, Dr Grech should have done so. Dr Grech accepts that there were deficiencies in his management of Patient A. While there were shortcomings in his approach, Patient A was reluctant to be involved in any preventative health measures. Dr Grech acknowledges that despite Patient A's attitude, he should have insisted on a proper assessment and monitoring.

Purpose

1. Dr Grech submitted that Patient A was complaining of erectile dysfunction with no defined organic disorder. In those circumstances, prescription of targeted medication is not precluded.

Expert evidence

1. Dr Mullins expressed the view that "erectile dysfunction treatment necessitates adequate history, examination and investigations". Dr Mullins referred to an article from the Australian Family Physician entitled, "Much more than prescribing a pill - assessment and treatment of erectile dysfunction by the general practitioner" AFP, vol 46, No 9, September 2017.
2. A full history including sexual history is required. Dr Mullins mentions that in 2012, Dr Grech initiated investigations for sexually transmitted diseases with the comment 'lifestyle risks' but that nothing had been recorded since then. When questioned as to whether a reference to "counselled" in 2014 would temper her criticism, Dr Mullins said that even if counselling had occurred, that is only part of an overall assessment.
3. According to Dr Mullins, Dr Grech should have assessed risk factors including depression, hypertension, diabetes, smoking and substance abuse. Appropriate examinations should have included blood pressure, cardiovascular examination, BMI and genitalia examination. Investigations should also have included blood tests (checking for diabetes and high lipids) and testing for sexually transmitted diseases if indicated on the history. As there was no record of this in Dr Grech's files, Dr Mullins assumed that they had not been undertaken. (We note that Dr Grech did test for sexually transmitted diseases on 15 February 2018).
4. Dr Mullins' criticisms relate to not assessing Patient A and checking for co-morbidities each time he prescribed these medications over the 3 ½ year period the subject of the complaint. Dr Mullins expressed the view that there was no monitoring of the efficacy or side effects of these drugs recorded in the file.
5. In respect of Complaint 1.1 (a) and (b), Dr Mullins considered Dr Grech's conduct to be significantly below the standard of a practitioner with an equivalent level of training or experience and invites her strong criticism. In her view, a management plan for the treatment of the primary cause of the erectile difficulties, such as depression, is more appropriate. In relation to Complaint 1.1(c), she considered there to be insufficient details in the medical records to assess whether these medications were prescribed for an appropriate therapeutic purpose.
6. She noted that erectile dysfunction drugs are used on the "party scene" to enhance sexual experience in those who have no erectile difficulties. She added that there was no evidence that Patient A sold the drugs and emphasised that Patient A's rate of consumption does not indicate misuse or diversion. As there is no allegation about ignoring the risk of misuse or diversion, we do not need to make any findings about this aspect of Dr Mullins' evidence.

Conclusion

1. We find that between 11 September 2014 and 21 March 2018, Dr Grech prescribed Patient A with erectile dysfunction medications on the dates and in the quantities set out in his clinical notes. Although Dr Grech had prescribed Patient A with these medications before 2014, he still needed to perform an adequate medical assessment prior to resuming prescribing in 2014. In this assessment, he should have considered possible causes of erectile dysfunction, both physical and psychological, and ordered relevant investigations. Dr Grech conceded that it was possible that he had just continued with his prior management of Patient A without conducting a full assessment. We find that that is what happened.
2. Dr Grech failed to perform an adequate medical assessment prior to prescribing drugs for erectile dysfunction in 2014 and failed to adequately monitor the efficacy and side effects of the drugs he prescribed Patient A. The conduct in Complaint 1.1 (a) and (b) demonstrates the knowledge, skill or judgment possessed, or care exercised, by Dr Grech is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
3. We are not satisfied that the prescribing was for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 34 of the Poisons and Therapeutic Goods Regulation 2008 (NSW). The purpose for which Dr Grech prescribed the medications was erectile dysfunction. That is a recognised therapeutic purpose.

Complaint 1.2 - prescribing diazepam (Valium) and tramadol (an analgesic) to Patient A

Unsatisfactory professional conduct

1. The complaint is that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law. Because the alleged conduct relates to the judgment possessed or the care exercised by Dr Grech, we do not need to consider whether it comes within s 139B(1)(l).

Particulars Between around 11 September 2014 and 9 February 2018 the practitioner inappropriately prescribed the schedule 4D drug diazepam and the schedule 4 drug tramadol to Patient A on the dates and in the quantities set out in the schedule attached and marked A in circumstances where: a. he failed to perform an adequate medical assessment prior to prescribing; b. he failed to a1dequately monitor the efficacy and side effects of the drugs prescribed; c. the prescribing was for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 34 of the PTG Reg.

1. Dr Grech denies this particular.

Requirements/standard

1. Because of the risks of abuse and diversion, benzodiazepines such as diazepam (Valium) are classified as Schedule 4, Appendix D (S4D) drugs. Appendix D to Schedule 4 of the Poisons and Therapeutic Goods Regulation 2008 (NSW) lists prescription-only medicines, like diazepam, and makes them the subject of strict controls. Practitioners must adhere to specific record keeping requirements and must monitor for overuse or misuse. On 17 April 2020 tramadol was added to the list of S4D substances. However, in the two year period covered by this particular, it was not subject to the same strict controls as benzodiazepines.
2. NSW Health has published a note headed "Recognising and handling Patients Liable to Abuse Benzodiazepines", TG199/3, November 2013. That publication acknowledges that benzodiazepines "are generally recognised as being safe and effective therapeutic agents in the short-term symptomatic management of severe disabling insomnia and/or anxiety." The note goes on to state that they are prone to abuse and long-term prescribing can result in physical dependence.
3. The Royal Australian College of General Practitioners (RACGP) guideline, "Prescribing drugs of dependence in general Practice", addresses the prescribing of Benzodiazepines in Part B. For the treatment of anxiety disorders, the guideline states at page xi, that "comprehensive clinical assessment is the first step in management." The guideline goes on: First-line therapy for generalised anxiety disorder (GAD), panic disorder, and panic attacks should include CBT . . . Selective serotonin reuptake inhibitor (SSRI) and serotonin-norepinephrine reuptake inhibitor (SNRI) medications are effective . . . Benzodiazepine use in anxiety disorder is mostly limited to severe or treatment resistant cases. (Emphasis added.)
4. At 1.6.3 the publication notes that: Patients who use two or more psychoactive drugs in combination (polydrug use), and those with a history of substance misuse may be more vulnerable to major harms. Significant caution should be taken if prescribing benzodiazepines to patients with comorbid alcohol/substance abuse or polydrug use. GPs should consider seeking specialist opinion in management of these patients.
5. The third particular is that the prescribing was for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 34 of the Poisons and Therapeutic Goods Regulation 2008 (NSW).

Dr Grech's evidence

1. Dr Grech said that he prescribed Patient A Valium (diazepam) as a muscle relaxant for back spasm and also as a sedative to treat intermittent anxiety. The clinical notes record that Dr Grech prescribed another benzodiazepine, alprazolam (Xanax), in September 2011, three years before the commencement of the complaint period. His notes record "anxiety-under stress++ occasional need counselled". Dr Grech had examined the prescribing table for Patient A from 11 September 2014 to 21 March 2018 and "can see no concerning irregularities in (his) prescribing of benzodiazepine medications in terms of pill strength, frequency of dosing, quantities prescribed, or intervals between prescriptions". We note that there is no criticism of Dr Grech in terms of the quantity he prescribed.
2. When asked whether he explored any non-drug interventions as "first line therapies" for the treatment of insomnia or anxiety disorders, Dr Grech said Patient A only needed diazepam occasionally for situational anxiety.
3. Dr Grech was questioned about prescribing diazepam to Patient A when he had been known to use methamphetamine - an illicit medication often used as a recreational drug. Dr Grech considered it a possibility that Patient A may have been using diazepam to get to sleep after using methamphetamine which is a stimulant. He acknowledged that this could have been a reason he requested diazepam. However, Dr Grech said that Patient A also needed diazepam for back spasms. According to Dr Grech, only a muscle relaxant such as Valium could help Patient A on those occasions.
4. Tramadol is an analgesic Dr Grech prescribed for back pain and pain associated with Dupuytren's contracture. Dr Grech's records indicate that Patient A suffered significant pain and loss of function in both hands due to Dupuytren's contracture, but had decided not to undergo surgery. Tramadol is an opiate medication and overuse can lead to addiction. Dr Grech was asked whether there are any issues when prescribing a benzodiazepine such as Valium with tramadol. He said he was "awake to the possibility" that his prescribing pattern would promote addiction. Dependence on benzodiazepines makes dependence on substances such as tramadol more likely. That possibility was not at the forefront of Dr Grech's mind. He was more concerned about the combination of Valium with methamphetamine. Dr Grech said he was in his "clinical comfort zone" in managing Patient A's use of two prescription drugs and one illicit drug. He kept a close eye on him but did not have a plan for reducing his intake.
5. In his view, Patient A was not exhibiting typical drug seeking behaviour such as that outlined in the NSW Health Note about "Recognising and handling Patients Liable to Abuse Benzodiazepines". According to Dr Grech, Patient A did not abuse benzodiazepines or any prescription medication. He was abusing other illicit substances, but Dr Grech did not suspect that he might be abusing prescribed medications. The pattern of his requests did not indicate that was the case. He did not have mental health issues and was not doctor shopping.
6. Dr Grech's view is that his notes indicate that Patient A was comprehensively examined for his back complaints and was regularly prescribed anti-inflammatories. He also referred him to a chiropractor.

Expert evidence

1. Dr Mullins noted that there was no record of a comprehensive medical assessment having been performed. Dr Grech prescribed Valium to Patient A regularly and on numerous occasions. There was typically two months between prescriptions which Dr Mullins calculates would mean he used Valium most days. Dr Grech's notation on 15 February 2018 is that Patient A has "occasional need".
2. Dr Mullins noted that, in accordance with the RACGP publication entitled "Prescribing drugs of dependence in general practice, Part B - Benzodiazepines", prescribing benzodiazepines to patients with comorbid alcohol or substance abuse disorders should be avoided. In Dr Mullins' view, Dr Grech should not have prescribed Valium to Patient A because of his known use of illicit drugs.
3. Five prescriptions of tramadol were given from 1 December 2017 to 12 March 2018, but the amount and dose are not recorded. Dr Mullins noted that: Examination recorded on occasions, but not regularly. No documentation of use of first-line treatments, including exercise, physiotherapy, paracetamol and anti-inflammatories.
4. In her report, Dr Mullins addressed the question of whether Dr Grech prescribed tramadol for an appropriate therapeutic purpose. She noted that tramadol is a centrally acting "opioid like" medication for moderate to severe pain. She did not consider the complaint of Dupuytren's contracture of both hands to be sufficient to warrant such medication.
5. For each of these particulars, Dr Mullins considers the conduct to be significantly below the standard of an equivalent level of training or experience and invited her strong criticism.

Conclusion

1. We find that between 11 September 2014 and 9 February 2018, Dr Grech prescribed Patient A with diazepam and tramadol on the dates and in the quantities set out in his clinical notes. Diazepam was purportedly prescribed for two purposes - the relief of back spasms and to reduce intermittent anxiety. The use of diazepam as an adjunct for the relief of muscle spasm is a purpose that accords with the recognised therapeutic standard of what is appropriate in the circumstances. However, prescribing diazepam as a first-line treatment for the relief of intermittent situational anxiety does not. Dr Grech should have attempted other non-drug therapies such as cognitive behaviour therapy and/or anti-depressants (SSRIs and SNRIs). Benzodiazepines such as diazepam should be limited to treatment resistant cases of anxiety, that is, cases where other therapies have been unsuccessful.
2. Dr Grech's judgment and care in frequently prescribing diazepam to a patient with substance abuse for situational anxiety is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Dr Grech did not consider other more appropriate options to treat this patient's anxiety. In addition, he failed to perform an adequate medical assessment of Patient A before prescribing diazepam and failed to adequately monitor the efficacy and side effects of that drug. Those failures satisfy us that his judgment and care in these respects is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
3. Prescribing tramadol for intermittent back pain is a purpose that accords with the recognised therapeutic standard of what is appropriate in the circumstances. Prescribing tramadol for the pain associated with bilateral Dupuytren's contracture is less common but nevertheless a recognised therapeutic purpose. However, Dr Grech did not perform an adequate medical assessment prior to prescribing tramadol and failed to adequately monitor the efficacy and side effects of that substance. That conduct is significantly below the relevant standard.

Complaint 1.3 - prescribing temazepam, diazepam (both benzodiazepines) and tramadol (an analgesic) to Patient B

Unsatisfactory professional conduct

1. The complaint is that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law. In this case, the alleged conduct relates to the judgment possessed or the care exercised by Dr Grech, so we do not need to consider whether it comes within s 139B(1)(l).

Particulars

1. The particulars are that: Between around 20 January 2010 and 19 June 2018 the practitioner inappropriately prescribed the schedule 4D drugs temazepam and diazepam and the schedule 4 drug tramadol to Patient B on the dates and in the quantities set out in the schedule attached and marked B in circumstances where: a. he failed to perform an adequate medical assessment prior to prescribing; b. he failed to adequately monitor the efficacy and side effects of the drugs prescribed; c. the prescribing was in quantities and for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the d circumstances, contrary to clause 34 of the PTG Reg; d. the combination of drugs prescribed was inappropriate given the potential interactions, Patient B's age, poor renal function and general health condition.
2. Dr Grech denies this particular.

Background

1. Patient B is in her late 80s but remains physically active. She has severe renal impairment and is under the care of a specialist. Over an eight year period, Dr Grech prescribed temazepam and diazepam for insomnia. What began as an "occasional need" turned into long term prescribing of temazepam and diazepam. The initial prescription of tramadol (in combination with paracetamol) in December 2014, was recorded as being for "knee pain". In August 2017, Dr Grech prescribed tramadol 50mg with instructions to take two tablets three times a day.

Requirements/standards

1. Schedule 4D drugs, such as temazepam (Normison) and diazepam (Valium) are subject to strict controls. Practitioners must adhere to specific record keeping requirements and must monitor for overuse or misuse. According to the publication, Recognising and Handling Patients liable to abuse benzodiazepines: The benzodiazepines are generally recognised as being safe and effective therapeutic agents in the short-term symptomatic management of severe disabling insomnia and/or anxiety. in addition, there are some specific indications that are appropriate, such as when used for acute alcohol withdrawal, epilepsy, and as an adjunct for the relief of reflex muscle spasm.
2. The publication goes on to say that "it is well known that benzodiazepines obtained on prescription are abused by some people".
3. On 17 April 2020 tramadol was added to the list of S4D substances. However, in the eight and a half year period covered by this particular, it was not subject to the same strict controls as temazepam and diazepam.
4. The third particular is that the prescribing was in quantities and for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 34 of the Poisons and Therapeutic Goods Regulation 2008 NSW ('the PTG Reg').
5. Particular 4 is that the combination of benzodiazepines with tramadol was inappropriate given their interactions; Patient B's age; poor renal health; and general health condition.

Dr Grech's evidence

1. On 17 September 2013, Dr Grech prescribed 100 tablets of temazepam 10mg (4 x 25 tablets) for Patient B. According to Dr Grech, she was using temazepam every night and a dose of 2 tablets (20mg) would not be unusual. That means she was given 50 days (about 7 weeks) supply. She did not come back for another script until 28 January 2014 which is the date by which she would have needed a new prescription. Dr Grech conceded that Patient B may be taking one, two or three tablets a night. At some stage, Dr Grech said that Patient B switched from temazepam to diazepam, but on 28 January 2016, he prescribed both drugs on the same day. He said that was not a sign of drug dependency.
2. While "the elderly" do become dependent, it was Dr Grech's view that "we just have to accept that". Dr Grech remembers that Patient B was taking benzodiazepines to help her sleep as early as 1984. He said that once you get to a certain age, if you don't get the medication, you can't sleep. "Dependence is preferable to the alternative". He said he did his duty to her so that she could continue her life and look after her husband. He had no plan to reduce Patient B's intake. Dr Grech accepted that, while it was not ideal to prescribe benzodiazepines long term to Patient B, as long as she is not at risk, her need might be permanent.
3. On 5 October 2017, Patient B's husband phoned Dr Grech to report that he was not able to wake up his wife. Dr Grech visited Patient B in her home and recorded that she "appeared to be sleeping comfortably and was woken readily". She told Dr Grech that she was perfectly okay and simply needed to rest as she was exhausted by the dialysis and caring for her husband. According to his medical records, Dr Grech took her blood pressure and pulse and diagnosed "physical exhaustion".
4. At the time of this incident, Dr Grech was prescribing temazepam more frequently than before. On 19 September 2017 and again on 3 October 2017 (two days before this incident), Dr Grech prescribed Patient B with 100 x 10mg tablets of temazepam. Dr Grech explained that this may not be an increase in frequency because Patient B would collect temazepam without a prescription and then get the prescription later. Her preference was for prescriptions for larger quantities so that she did not have to visit the surgery as often. He added that the 5 October 2017 incident "may or may not be related" to the increase in the frequency of prescribing.
5. Dr Grech accepts that deliberate or accidental overdose is a possibility, but when he called to see Patient B at home on 5 October 2017, she was awake and alert. She told him she was exhausted from looking after her husband whose health was deteriorating. Dr Grech regarded her as reliable and as unlikely to overuse benzodiazepines.
6. Six months later, on 24 April 2018, Dr Grech wrote in his notes that Patient B was "seen this morning at home" experiencing "anxiety and insomnia" and has "occasional need" for Valium (diazepam). Dr Grech prescribed 50 x 5 mg tablets. He said he made her aware that, because of their sedative effects, benzodiazepines increase the risk of falls and of cognitive decline. Another risk factor was intermittent pre syncope. Dr Grech thought that Patient B may have once had such an episode. Dr Grech understood that there is always a risk that a patient will take excessive medication, but he did not think Patient B would do so.
7. Dr Grech also prescribed tramadol, which, on one occasion, he recorded as being for "knee pain". Tramadol is metabolised and then excreted through the kidneys. Dr Grech was not concerned about the effect on Patient B's kidneys because she was functioning well and attending regular reviews with her renal physician, Dr Penny. However, the referral letters to Dr Penny do not mention that Patient B was being prescribed tramadol and Dr Grech acknowledged that it is possible that Patient B did not tell Dr Penny that she was taking tramadol.

Expert evidence

1. Dr Mullins mentions in her report that Dr Grech did not record any history, therapeutic indication or management plan for Patient B. In her view, there was no appropriate assessment. Proper assessment would have included assessing Patient B's mental state, understanding her sleep patterns and assessing the relative benefits of over the counter medications. Dr Grech should also have assessed the potential for co-morbidities such as the risk of falls and cognitive decline.
2. According to Dr Mullins, "the quantity prescribed is well in excess of safe use, including replacement of 'lost scripts'." She did not consider it safe for Dr Grech to prescribe tramadol to Patient B considering potential interactions, her age and her poor renal function.
3. It was put to Dr Mullins that because Patient B was a longstanding patient, Dr Grech would hold information in his mind about her history. In those circumstances, there is no need to document everything on each occasion. Dr Mullins considered that Dr Grech should still have recorded negative findings at each consultation.

Conclusion

1. We find that between 20 January 2010 and 19 June 2018, Dr Grech prescribed temazepam and diazepam and tramadol on the dates and in the quantities set out in the schedule and the prescribing table. Apart from one notation that tramadol was prescribed for knee pain, no other information was provided in the notes. Dr Grech's notes contain little information about the nature or extent of Patient B's kidney disease. He did not monitor her weight or blood pressure.
2. We find that Dr Grech failed to properly assess and monitor Patient B on 5 October 2017. He should have investigated the possible link between the frequency of prescribing on 19 September and 3 October 2017 and the possibility that Patient A had overdosed. Dr Grech wrongly recorded Patient B as having an "occasional need" for diazepam and temazepam when in fact she was taking those drugs every day and was clearly dependent on them. The quantity prescribed is concerning because it reflects a high dose for a vulnerable patient who has developed a physical dependence to the medication. We agree with Dr Mullins that proper care involves a plan for the reduction and ultimate cessation of benzodiazepines, even for someone in their 80s.
3. The combination of benzodiazepines with tramadol was said to be inappropriate given the potential interactions; Patient B's age; poor renal function; and general health condition. However, while this combination of drugs is not ideal, it is not absolutely contraindicated. When these drugs are prescribed together, the practitioner should carefully monitor the patient. That did not occur with Patient B.
4. These failures satisfy us that Dr Grech's judgment and care in these respects is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Unsatisfactory professional conduct

1. The complaint is that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law. In this case, as the alleged conduct relates to the judgment possessed or the care exercised by Dr Grech, we do not need to consider whether it also comes within s 139B(1)(l).

Particulars Between around 1 June 2017 and 22 February 2018 the practitioner inappropriately prescribed the schedule 4 drug Abilify to Patient C on the dates and in the quantities set out in the schedule attached and marked C in circumstances where: a. he failed to perform an adequate medical assessment prior to prescribing; b. he failed make appropriate referrals to a psychiatrist.

1. For particular (a), Dr Grech admits both the factual basis of that particular and that failing to perform an adequate medical assessment prior to prescribing Abilify is conduct that demonstrates the judgment possessed and care exercised in doing so is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. For particular (b), Dr Grech admits that he did not refer Patient C to a psychiatrist but says that his judgment and care was not significantly below the relevant standard.

Background

1. Patient C was Dr Grech's girlfriend at the time, but that is not relevant for the purpose of determining this part of the complaint. Dr Bernard St George was Patient C's treating psychiatrist from July 2012. He initially prescribed Patient C with Abilify.

Requirements/standard

1. Aripiprazole (Abilify) is an atypical anti-psychotic used for the treatment of schizophrenia. It is a S4 drug but is not listed in Appendix D.

Dr Grech's evidence

1. Dr Grech admits that he failed to perform an adequate medical assessment prior to prescribing Abilify and that that conduct is significantly below the relevant standard.
2. In notes dated 14 November 2017, Dr Grech advised Patient C to ". . .obtain the advice of managing psychiatrist", however there is no record of any referral or any indication as to whether Patient C heeded that advice. Dr Grech says he did not write a referral letter because Patient C was already under the treatment of a psychiatrist. He conceded in cross-examination that he should have referred Patient C to a psychiatrist, particularly about her obsession with her appearance.

Expert evidence

1. Dr Mullins requested the HCCC to provide any information from Patient C's psychiatrist to determine whether the diagnosis Dr Grech had recorded was correct. The psychiatrist's notes confirmed the diagnosis as schizoaffective disorder. In notes dated 17 March 2017, Dr St George wrote that "she is well controlled on Abilify 10mg daily". Dr Mullins agreed in cross-examination that she would have been critical of Dr Grech if Dr St George's notes did not confirm Patient C's diagnosis and treatment. We do not regard Dr Mullins' decision to request these notes, or her answer to that question, as evidence of a predisposition unfavourable to Dr Grech. It was a legitimate inquiry and a reasonable response to the question.
2. In her report, Dr Mullins noted that, "compliance may be an issue with frequent lost scripts and repeats before due". There is no ongoing assessment with each script and "excess number of scripts given before due". However, none of the particulars relate to the quantities of Abilify Dr Grech prescribed.
3. Dr Mullins' view is that Dr Grech should have referred Patient C for psychiatric review because she needed it urgently.

Conclusion

1. We find that during the relevant period, Dr Grech inappropriately prescribed Abilify to Patient C. Dr Grech prescribed Ability, on the understanding that a psychiatrist had prescribed that medication previously. We accept Dr Grech's admission that he failed to perform an adequate medical assessment prior to prescribing and that that conduct demonstrates the judgment possessed and care exercised by Dr Grech is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
2. We also find that Dr Grech failed to make appropriate referrals to a psychiatrist. At one stage, Patient C told Dr Grech that she was going to stop taking her medication. He was concerned about that and said he told her to go back to her psychiatrist. However, he did not write a referral or communicate with her psychiatrist about that issue or about any of her other issues including her obsession with her appearance and illicit drug use. That conduct demonstrates the judgment possessed and care exercised by Dr Grech is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Complaint 1.5 prescribing Duromine (an appetite suppressant) to Patient D

Unsatisfactory professional conduct

1. The complaint is that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law. In this case, the alleged conduct relates to the judgment possessed or the care exercised by Dr Grech, so we do not need to consider whether it comes within s 139B(1)(l).

Particulars Between around 10 October 2017 and 20 March 2018 the practitioner inappropriately prescribed the schedule 4D drug Duromine to Patient D on the dates and in the quantities set out in the schedule attached and marked D in circumstances where: a. he failed to perform an adequate medical assessment prior to prescribing; b. Duromine is indicated for obesity and Patient D was not obese; c. Duromine is contraindicated in patients with a history of drug/alcohol abuse or dependence; d. without appropriate monitoring; e. in an inappropriate combination with Movicol Liquid concentrate on 10 October 2017; f. in an inappropriate combination with the benzodiazepines diazepam, temazepam and oxazepam.

1. Dr Grech admits the factual basis of particulars (b) and (c), but otherwise denies this particular. He maintained in his evidence that Patient A was overweight, even though not technically 'obese' and that, in those circumstances, his judgment in prescribing Duromine was not below the relevant standard. He admitted that Duromine is contraindicated in patients with a history of drug or alcohol abuse or dependence.

Background

1. Dr Grech treated Patient D for about 10 months from July 2017 to May 2018. He knew her socially before then. On 10 October 2017, Dr Grech's notes record "overweight" and on the next line "physical: Weight 58;" He prescribed Duromine. After prescribing Duromine, Patient A lost 6 kg in 2 months. Dr Grech continued to prescribe Duromine even when Patient D's BMI dropped to 21.4. The next entry on 10 October 2017 records "constipation." Dr Grech prescribed Movicol Liquid concentrate. The next entry records "drug dependency" and "very keen to quit ghb" (gamma hydroxybutyrate), which is an illicit drug. Dr Grech prescribed Valium and Normison.

Requirements/standards

1. Duromine (phentermine) is a S4D drug indicated for the treatment of obesity. Obesity is defined as a BMI (body mass index) of 30 kg/m or greater. It is an indication of whether a person is in a healthy weight range for their height. At the relevant time, Patient D weighed 58 kg and was 156 cm tall. Dividing her weight by the square of her height gives a BMI of 23.8 kg/m. That puts her in the healthy weight range. She was not "obese".
2. Dr Mullins refers to "MIMS" at p 20 of her report to support the proposition that Duromine is indicated for obesity "as short-term adjunct in medically monitored comprehensive regime of weight reduction." The product information for Duromine, accessed via MIMS, states as follows: Indications Duromine is an anorectic agent indicated in the management of obesity as a short-term adjunct in a medically monitored comprehensive regimen of weight reduction based, for example, on exercise, diet (caloric/kilojoule restriction) and behaviour modification in obese patients with a body mass index (BMI) of 30 kg/m2 or greater. The treatment with Duromine can be initiated in overweight patients with a lower BMI (25 to 29.9 kg/m2), which increases the risk of morbidity from a number of disorders. Secondary organic causes of obesity should be excluded by diagnosis before prescribing this agent.
3. From the RACGP's Journal in 2017 on "Pharmacotherapy in Obesity": Long-term pharmacotherapy options, which can be effective in providing moderate weight loss, are available to treat obesity. Pharma-cotherapy should be considered an adjunct to lifestyle intervention in those with a body mass index (BMI) >30 kg/m2, or in those with a BMI of 27-30 kg/m2 and obesity-related complications. Safety and efficacy should be monitored closely on commencement, and the medication should be discontinued if there are safety or tolerability issues, or if <5% weight loss is observed after three to four months.
4. Duromine product information (accessed via MIMS) contains this precaution: Duromine should be used with caution in patients receiving psychotropic drugs, including sedatives and agents with sympathomimetic activity.
5. While there is no drug 'interaction' in the pharmacological sense, Valium is a drug of dependence. A cautious approach is necessary when prescribing Duromine.
6. The product information for Duromine (available via MIMS) includes the following statements: Contraindications Pulmonary artery hypertension; existing heart valve abnormalities or heart murmurs; moderate to severe arterial hypertension; cerebrovascular disease; severe cardiac disease including arrhythmias, advanced arteriosclerosis; known hypersensitivity to sympathomimetic drugs; hyperthyroidism; agitated states or a history of psychiatric illnesses including anorexia nervosa and depression; glaucoma; history of drug/alcohol abuse or dependence; concomitant treatment with monoamine oxidase (MAO) inhibitors or within 14 days following their administration. (Emphasis added.)

Dr Grech's evidence

1. Dr Grech acknowledged there were shortcomings in his prescribing regime for Patient D. However, in relation to prescribing Duromine, Dr Grech regarded it as being "perfectly reasonable" to do so. Patient D was "very short" at 158 cm. He said that even though she had a "normal" BMI, she looked "quite obese" and wanted to lose weight. Dr Grech considered Patient D to be "too heavy to function efficiently in her chosen profession as a dancer and entertainer, the exclusive means by which she has made her living for the past eight years." Talking to her about lifestyle and diet would not have been as effective.
2. Withdrawal from GHB was an ongoing issue for Patient D. Dr Grech knew she was taking GHB every day, but did not know how much. He said he did not question her about those matters because that would negatively impact on the therapeutic relationship he had with his patient. Dr Grech thought that Patient D was telling him the truth about her licit and illicit drug intake and that she was genuine in her desire to withdraw from GHB.
3. In relation to prescribing Movicol, Dr Grech said that he was aware that laxatives are abused by patients who want to lose weight. However, he accepted Patient D's assertion that she was constipated and as Movicol does not interact with other drugs, he considered it safe to prescribe.

Expert evidence

1. Because Patient D did not fall within the definition of 'obese', Dr Mullins thought it was inappropriate to prescribe Duromine. She agreed that there are some circumstances where a guideline need not be rigidly adhered to, but in this case, Patient D's BMI was normal. She did not agree that the measurement of BMI had any limitations in this context. It was not appropriate for Dr Grech to prescribe Duromine, even in circumstances where Patient D needed to lose weight to successfully pursue her occupation. While not every breach of an RACGP guideline invited her strong criticism, it did in this case.
2. According to Dr Mullins, Duromine treatment should not exceed three months. Dr Grech prescribed that drug to Patient D for three months and two weeks. Even if there are no adverse side effects, this conduct invited her strong criticism because the potential for harm exists for the whole time the medication is being taken.
3. Dr Mullins says that Duromine is contraindicated in patients with a history of drug or alcohol abuse or dependence. As far as an assessment and examination are concerned, Dr Grech should have recorded alcohol intake, checked Patient D's blood pressure and informed her of potential side effects. He did not take an adequate history or undertake an assessment of Patient D's mental health. Dr Grech should have monitored Patient D but he did not perform any urine drug testing.
4. Dr Mullins criticised Dr Grech for prescribing Movicol Liquid concentrate on 10 October 2017 together with Duromine 30 mg. Movicol is a good treatment for chronic constipation but there is no record of Patient D having that condition. It is also misused by people wanting to lose weight. Each of those matters was said to be significantly below the standard and invited her strong criticism.

Conclusion

1. We find that during the relevant period, Dr Grech inappropriately prescribed Duromine to Patient D. Duromine is indicated for obesity and Patient D was not obese. Her BMI was well within the normal range. Dr Grech did not appropriately assess or monitor Patient D.
2. Duromine's approved product information indicates that it should only be prescribed to obese patients. We accept that Patient D looked overweight and was motivated to lose weight to continue her career as a dancer. There is no evidence that she abused that medication. However, other than weighing Patient D, Dr Grech did not conduct any other assessment or examination before prescribing Duromine.
3. Dr Grech was too accepting and trusting of Patient D's requests for Duromine. Duromine is contraindicated in patients with a history of drug/alcohol abuse or dependence. He knew that Patient D was addicted to GHB and was taking benzodiazepines. It was not appropriate for Dr Grech to prescribe Duromine in combination with three benzodiazepines because of their addictive properties. While he monitored Patient D's weight, he did not monitor her for cardiac symptoms such as blood pressure and pulse rate, neurological symptoms such as sleep disturbance or gastrointestinal issues.
4. The notes record 'constipation' as the reason for prescribing Movicol. Prescribing Movicol is reasonable, provided there is a proper assessment of her constipation. However, the absence of any proper assessment suggests that Dr Grech failed to explore the distinct possibility that Patient A wanted laxatives to help her lose weight.
5. Dr Grech's conduct in prescribing Duromine in the circumstances outlined above and particularly in combination with three benzodiazepines, demonstrates that Dr Grech's judgment or care is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Complaint 1.6 - prescribing diazepam, temazepam and oxazepam to Patient D

Unsatisfactory professional conduct

1. The complaint is that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law. As the alleged conduct comes under the scope of s 139B(1)(a), we do not need to consider whether it comes within s 139B(1)(l).

Particulars Between around 11 July 2017 and 24 May 2018 the practitioner inappropriately prescribed the schedule 4D drugs, diazepam, temazepam and oxazepam to Patient D on the dates and in the quantities set out in the schedule attached and marked D, in circumstances where: a. he failed to perform an adequate medical assessment prior to prescribing; b. the prescribing was for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 34 of the PTG Reg; c. without appropriate monitoring; d. he failed to refer Patient D to drug and alcohol services for specialist treatment and monitoring.

1. Dr Grech denies this particular.

Dr Grech's evidence

1. During the 10 month period from July 2017 to May 2018, Dr Grech prescribed three kinds of benzodiazepines to Patient D. For example, on 4 January 2018 Dr Grech prescribed diazepam (Valium) 3 times a day and temazepam (Normison), one at night. Dr Grech said that that combination of benzodiazepines is often used for withdrawal from opiates such as GHB, but he can't remember whether that was why he prescribed them on that day. When asked how long it would take to withdraw from GHB, Dr Grech estimated that it could take a month. Notwithstanding that estimate, Dr Grech prescribed benzodiazepines for nearly three months.
2. On 14 September 2017 Dr Grech prescribed Patient D with 50 x 5 mg Valium tablets for insomnia. Three weeks and three days later, on 8 October 2017, he prescribed another 50 x 5 mg tablets. That is the equivalent of approximately two tablets per day. He said he did not think that was an excessive rate of consumption. However, 11 days later (19 October 2017) Dr Grech prescribed another 50 tablets of Valium. At that rate, Patient D was consuming between 4 and 5 tablets a day. Dr Grech's response to these rates of prescribing was that they were reasonable and he did not think there were any safety issues.
3. Patient D had had some contact with a drug and alcohol service but she did not accept that kind of management long term. Dr Grech acknowledged that, to some extent, he was taking on the role of a drug and alcohol service by attempting to manage her addictions. He regarded it as appropriate for him to perform that role as long as Patient D was seeing him regularly and was reporting any abnormalities.

Expert evidence

1. Dr Mullins' opinion is that Dr Grech did not take an adequate history of mental illness or drug and alcohol intake. He should have developed a management plan and referred Patient D to drug and alcohol services. Dr Mullins said that Dr Grech should have been sceptical of Patient D's request for benzodiazepines to withdraw from GHB. He should have taken a more detailed history of her drug use and attempts at withdrawal. She added that benzodiazepines could have been used for a suicide attempt, sold illegally, or used in addition to illicit drugs with associated potentially severe and possibly life-threatening side effects.
2. Dr Mullins expressed the view that Patient D was exhibiting drug seeking behaviour by asking for specific drugs such as Valium and Normison and by frequently requesting early prescription renewals. She acknowledged that asking for a drug by name did not necessarily imply that the patient was drug seeking and that a full history and examination is necessary. Other relevant matters include whether the patient is a new or existing patient. However, where a patient has admitted using illicit drugs, even in the context of an attempt to cease taking those drugs, Dr Mullins' view was that the medical practitioner needs to be very cautious.
3. According to Dr Mullins, quitting GHB is not a therapeutic purpose for prescribing benzodiazepines. Drug users have a high risk of dependence on these drugs so their use should be avoided. Short term use of less than four weeks is recommended. Valium and temazepam prescriptions were issued and dispensed at the same time on some occasions. Normison was prescribed on 5 April 2018 only two weeks after 25 oxazepam 30mg tablets had been prescribed. Use of multiple preparations and high doses increases the risk of dependency and adverse reactions.
4. Dr Mullins' view is that Dr Grech did not appropriately monitor Patient D by, for example, doing a urine drug test. Dr Grech frequently prescribed benzodiazepines early. There is no evidence of Dr Grech contacting the Prescription Shopping Program to identify if Patient D had been obtaining prescriptions from other practitioners or otherwise accessing an excess of medication.

Conclusion

1. We find that during the relevant period, Dr Grech inappropriately prescribed diazepam, temazepam and oxazepam to Patient D. That prescribing was inappropriate because he failed to perform an adequate medical assessment prior to prescribing and he failed to appropriately monitor Patient D. If Dr Grech had been prescribing these medications for an appropriate purpose, he would have checked the Prescription Shopping Program; performed regular urine drug screening; prescribed smaller quantities and for a shorter period; and implemented a plan to wean Patient D off these drugs promptly.
2. The prescribing of these benzodiazepines to Patient D was not for a well-established therapeutic purpose. Dr Grech should have referred Patient D to drug and alcohol services for specialist treatment and monitoring. Dr Grech's conduct in the circumstances outlined above demonstrates that his judgment or care is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Complaint 1.7 - prescribing temazepam and oxazepam to Patient D when she had taken an overdose

Unsatisfactory professional conduct

1. The complaint is that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law. Unless the alleged conduct does not come within s 139B(1)(a), we do not need to consider whether it comes within s 139B(1)(l).

Particulars On 3 May 2018 the practitioner inappropriately prescribed the schedule 4D drugs temazepam and oxazepam to Patient D in circumstances where: a. Patient D had been hospitalised on or around 30 April 2018 whilst visiting Melbourne as a result of a drug overdose; b. he had previously prescribed Valium to Patient D on 19 April 2018; c. prescribing addictive benzodiazepines to a patient with a known addiction to illicit drugs was especially dangerous.

1. Dr Grech admits he prescribed Valium to Patient D on 19 April 2018, but otherwise denies this particular.

Background

1. As a result of a drug overdose, Patient D lost consciousness and was hospitalised on 30 April 2018. Eleven days earlier, on 19 April 2018, Dr Grech had given her a script for Valium (diazepam). On 3 May 2018, two weeks after the overdose, Dr Grech prescribed Normison (temazepam) 10mg x 25 tablets and Serepax (oxazepam) 30mg x 25 tablets.

Requirement/Standard

1. The Royal Australian College of General Practitioners (RACGP) has published a guideline called Prescribing drugs of dependence in General Practice, Part B - Benzodiazepines. For the treatment of anxiety disorders, the guideline states at page xi, that "comprehensive clinical assessment is the first step in management." At 1.6.3 the publication notes that: Patients who use two or more psychoactive drugs in combination (polydrug use), and those with a history of substance misuse may be more vulnerable to major harms. Significant caution should be taken if prescribing benzodiazepines to patients with comorbid alcohol/substance abuse or polydrug use. GPs should consider seeking specialist opinion in management of these patients.

Dr Grech's evidence

1. On 3 May 2018, Dr Grech recorded an "accident" in Melbourne and that Patient D had lost consciousness for approximately two hours. He says he wrote "unspecified" in his notes because Patient D asked him not to record that she had overdosed on GHB. Patient D had told Dr Grech that she was withdrawing from GHB at the end of March 2018, but he continued to prescribe benzodiazepines despite the overdose.
2. At the s 150 hearing before the Medical Council, Dr Grech was questioned about the risk of prescribing benzodiazepines to Patient D when he knew she was taking GHB on a daily basis. Dr Grech's response was that he prescribed the benzodiazepines to help Patient D withdraw from GHB. He had assumed that the overdose was just on GHB, not on a combination of GHB and the benzodiazepines. On reflection, he accepted that it was "not the best idea" to prescribe Patient D with benzodiazepines in these circumstances. Dr Grech agreed that at times he was overly obliging towards his patients. He agreed that while he was able to counsel some patients and refuse requests for benzodiazepines, he was more obliging to patients he knew well. For those patients, he admitted that his judgment was sometimes "clouded." However, at the hearing, Dr Grech continued to express the view that Patient D could be trusted and that he was "attuned to her authenticity."

Expert evidence

1. Dr Mullins regards Dr Grech's prescribing of benzodiazepines during this time as unsafe because of the risk of accidental or deliberate overdose.

Conclusion

1. Dr Grech admits that he prescribed Valium to Patient D on 19 April 2018, eleven days before the overdose. We are not persuaded by Dr Grech's evidence that the overdose was of GHB. Dr Grech did not record the drug on which Patient D had overdosed in his records and it would have reflected adversely on him if Patient D had overdosed on a drug he had prescribed. We do not know whether Patient D's overdose was on GHB or benzodiazepines or a combination of both.
2. We find that on 3 May 2018, Dr Grech inappropriately prescribed temazepam and oxazepam to Patient D when she had recently been hospitalised for a drug overdose. Prescribing addictive benzodiazepines to a patient with a known addiction to illicit drugs is especially dangerous.
3. Dr Grech's conduct in the circumstances outlined above, demonstrates that his judgment or care is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Complaint 2.1 and 2.2 - breach of professional boundaries with Patient A

Unsatisfactory professional conduct

1. It is alleged that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that he has engaged in any other improper or unethical conduct relating to the practice of medicine.

Particulars

1. The particulars are that: Whilst engaged in a therapeutic relationship with Patient A, the practitioner failed to maintain professional boundaries by communicating with Patient A on social media. Between around 11 September 2014 and 9 February 2018 the practitioner inappropriately delivered pre-printed prescriptions for medications for the treatment of erectile dysfunction to Patient A's home where there was no urgent need for the medication which would justify a home visit.
2. Dr Grech denies these particulars.

Background

1. Patient A was a facebook 'friend' of Dr Grech. The communications between them are that Patient A "liked" various posts on Dr Grech's facebook page and also added short comments, such as "champion" in response to Dr Grech's posts.
2. Dr Grech also delivered pre-printed prescriptions to Patient A at his home.

Requirements/standards

1. Good Medical Practice: A code of conduct for doctors in Australia, March 2014, published by the Medical Board of Australia, states at 8.2 that "good medical practice involves maintaining professional boundaries". The code explains at 8.1, that: In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct.
2. The RACGP Standards for General Practice, 4th ed at p 14 includes the following statement about home and other visits: . . . regular patients are able to obtain visits in their home, residential aged care facility, residential care facility or hospital, both within and outside normal opening hours where such visits are deemed safe and reasonable.
3. These standards relate to each particular alleging breach of professional boundaries.

Dr Grech's evidence

1. Dr Grech said that he has always been mindful of having friends on facebook who want to get medical advice. He added that he would be very reluctant after this experience to accept a request from a patient to be a facebook 'friend'.
2. Dr Grech did not dispute that, on about six occasions, he delivered prescriptions to Patient A for erectile dysfunction medication and diazepam for back pain. He said he dropped off the prescriptions on his way home from the surgery. Dr Grech said he is not aware of any requirement for home visits to be made only in urgent circumstances. He is also not aware that repeat prescriptions are not able to be provided to a patient at home.
3. Dr Grech regarded these visits as "a courtesy extended to a longstanding patient whose history and needs were well known to me, for their convenience . . . , where there would be no particular inconvenience to me." He considered it to be acceptable to continue to do so as long as the patient is continuing to visit the surgery for regular reviews.

Expert evidence

1. Dr Mullins' initial opinion was based on an assumption that Patient A's facebook profile picture was an image of two naked buttocks. While the image is somewhat difficult to decipher, it is, in fact, an image of a man's upper chest and arms. Dr Mullins also noted that an image Dr Grech posted of a woman had "devil intimation." Pointed ears and a pitchfork had been "painted" on the image in red. Dr Grech explained that this is a picture of a woman in a fancy dress costume. He did not say whether he had added the ears and pitchfork.
2. Dr Mullins acknowledged in her supplementary report that her interpretation of those images may not have been entirely accurate. However, she maintained that the communications between Dr Grech and Patient A breach the Medical Board's code of conduct. In her view, it is not advisable to interact with patients on social media. She modified her initial opinion that this conduct was significantly below the standard expected and invited her strong criticism to say that she is "critical", rather than strongly critical.
3. Dr Mullins noted Dr Grech's admission that he provides pre-printed prescriptions to patients on occasions. Her view is that it was not appropriate for Dr Grech to provide prescriptions for erectile dysfunction medication such as tadalafil to Patient A at his residence. In her view, there is no therapeutic need for any urgent delivery of this medication. The expected standard is that delivery of prescriptions should only be provided in association with a medical consultation at the medical centre.
4. When questioned about this evidence, Dr Mullins confirmed that she could see no reason for a house call and it was not in Patient A's best interests. She conceded that a home visit may be appropriate in urgent situations or where the patient was unable to travel.

Conclusion

1. Dr Grech has a facebook account and he accepted one of his patients, Patient A, as a 'friend'. Patient A has posted 'likes' or short messages in response to some of the items Dr Grech has posted.
2. Dr Mullins' opinion on this issue was affected by her misunderstanding of what Patient A's profile picture represented and the nature of the interactions between Patient A and Dr Grech. To the extent that she regards any communication with a medical practitioner and a patient on facebook to be a breach of the code of conduct, we do not share that opinion. In our view, 'friending' a patient on facebook, which gives that person the opportunity to respond to posts, does not necessarily breach the code of conduct.
3. Dr Grech's facebook profile does not refer to him being a medical practitioner and Dr Grech has known Patient A for more than 20 years. Friending him and interacting with him in the way he did, is not improper or unethical conduct relating to the practice of medicine. This part of the complaint is not made out.
4. In accordance with the RACGP Standards for General Practice, quoted above, we can see no objection to Dr Grech delivering pre-printed prescriptions to a patient's home. There is no evidence that the visits or the prescriptions were unsafe or unreasonable. It is a matter for Dr Grech, if he wishes to drop off prescriptions as a matter of courtesy to his longstanding patients. This particular is not made out.

Complaint 2.3 - breach of professional boundaries with Patient B

Unsatisfactory professional conduct

1. It is alleged that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that he has engaged in any other improper or unethical conduct relating to the practice of medicine.

Particulars

1. The particulars are that: Between around 20 January 2010 and 19 June 2018 the practitioner inappropriately delivered pre-printed prescriptions for the schedule 4D drugs temazepam and diazepam and the schedule 4 drug tramadol to Patient B's home where there was no urgent need for the medication which would justify a home visit.
2. Dr Grech denied this particular. He admitted dropping prescriptions for Patient B at a pharmacy or at her home.

Requirements/standards

1. The requirements/standards are the same as those set out above for complaints 2.1 and 2.2.

Dr Grech's evidence

1. Dr Grech saw himself as extending a courtesy to Patient B. She is a longstanding patient who, because of her age, was not always able to attend the surgery. He would deliver prescriptions when it was not too inconvenient for him to do so.

Expert evidence

1. Dr Mullins' view was that it is not standard practice to deliver prescriptions personally. It is not in the patient's best interests in the majority of cases to do home visits. Face to face consultations during a formal medical appointment at the consulting rooms ensures professional boundaries are maintained and an appropriate assessment is conducted. There was no urgent need for Patient B to receive a prescription for Valium (diazepam) at home.
2. In relation to her comment that "there is no indication that these patients are so elderly or incapacitated to warrant a house call", Dr Mullins confirmed that she was referring to Patient B but that she was also making a general statement. The only occasion when there was a notation of any specific reason for a house call was in August 2017 when Patient B's husband, who has dementia, was intimidating her. House calls for Patient B to provide prescriptions "could be considered breaching the professional boundary issues" according to Dr Mullins.
3. When questioned about this evidence, Dr Mullins agreed that she had not referred to the specific pre-printed prescriptions for Patient B. However, there is no dispute that Dr Grech provided her with pre-printed prescriptions.

Conclusion

1. In accordance with the RACGP Standards for General Practice, quoted above, we can see no objection to Dr Grech delivering pre-printed prescriptions to a patient's home. There is no evidence that the visits were unsafe or unreasonable. It is a matter for Dr Grech if he wishes to drop off prescriptions as a matter of courtesy to his longstanding patients. This particular is not made out.

Complaint 2.4 - breach of professional boundaries with Patient E

Unsatisfactory professional conduct

1. It is alleged that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that he has engaged in "any other improper or unethical conduct" relating to the practice of medicine.

Particulars

1. The particulars are that: Whilst engaged in a therapeutic relationship with Patient E, the practitioner failed to maintain professional boundaries by: a. lending money to Patient E on a regular basis; and b. allowing Patient E to stay the night at his residence in early to mid-2018.
2. Dr Grech admitted this particular to the extent that it is a failure to maintain professional boundaries to lend money to patients but not to the extent that it is improper or unethical in this case. He impliedly denies that it is improper or unethical to allow Patient E to stay the night.

Dr Grech's evidence

1. Patient E was a good friend of Dr Grech before becoming his patient. He admitted lending him money on a regular basis for small amounts to "get him home or into a hotel". He always repaid the money. In mid-2018, Patient E rang Dr Grech from a restaurant, told him he was "smashed" and asked him if he could stay the night. Dr Grech agreed and Patient E left the next morning. Dr Grech agreed that the friendship could compromise their professional relationship but said that in such extraordinary circumstances, he would do the same thing again. Since this incident Dr Grech had to call the police to his house because of Patient E's behaviour and has now banned him from visiting.

Expert evidence

1. There was no written expert evidence on this issue.

Conclusion

1. We do not accept Dr Grech's submission that subsequently banning Patient E from coming to his house shows insight. His change of heart was based on Patient E's bad behaviour. Dr Grech's conduct was unwise and it related to the practise of medicine. Lending a patient money and allowing him to stay the night is a breach of professional boundaries but in the circumstances of this case, is not improper or unethical. This part of the complaint is not made out.

Complaint 3.1 - breach of professional boundaries with Patient C

Unsatisfactory professional conduct

1. It is alleged that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law. Unless the alleged conduct does not come within s 139B(1)(a), we do not need to consider whether it comes within s 139B(1)(l).

Particulars

1. The particulars are that: Between around 27 April 2017 and 22 May 2018 the practitioner failed to maintain professional boundaries in that he provided medical care and treatment to his girlfriend, Patient C, including by: a. consulting with Patient C at his practice and charging Medicare for the consultations; b. prescribing medications including for treatment of Patient C's bipolar and schizoaffective disorders; c. issuing medical certificates; d.providing referrals and receiving correspondence after specialist consultations; e. in breach of section 3.14 of the Medical Board of Australia's Code of Conduct, March 2014.
2. Dr Grech admits the particulars of complaint 3.1 and acknowledges that it demonstrates a lack of judgment and is significantly below the relevant standard. Despite writing in his statement that by treating Patient C he did not compromise her care, he now admits that it did compromise her care. Given these admissions, we do no need to determine whether the conduct meets the definition of unsatisfactory professional conduct in section 139B(1)(l) of the National Law.

Background

1. We understand that Patient C and Dr Grech had been in a relationship for some months before he began treating her as his patient in April 2017. He continued to treat her until about June 2018. She consulted him about a wide range of issues but predominantly her serious mental health issues.

Requirements/standards

1. The Medical Board of Australia publication 'Good Medical Practice: A code of conduct for Doctors in Australia' March 2014 at 3.14, advises doctors, whenever possible, to avoid providing medical care to anyone with whom they have a close personal relationship. Treating such people is inappropriate because of the "lack of objectivity, possible discontinuity of care, and risks to the doctor and patient."

Dr Grech's evidence

1. On 27 April 2017 Dr Grech's notes record that he called to see Patient C at her home for a sprained ankle. He agreed to see her at home because, although it was not an emergency, it was a bad injury. He thought it was a reasonable request but in retrospect he acknowledges that it was a boundary violation. Patient C told Dr Grech that she had seen a psychiatrist who had prescribed Abilify (aripiprazole). That medication is used for the treatment of schizophrenia, psychotic and bipolar disorders. He said he wrote prescriptions for Abilify "occasionally" in an emergency situation when Patient C ran out of the medication.
2. Patient C repeatedly asked Dr Grech to refer her to a plastic surgeon so that she could change the appearance of her face, particularly her nose. Dr Grech said he tried to dissuade her from seeing a plastic surgeon, telling her that she was beautiful. He feared that she would not be satisfied with the results of surgery and that her mental health would be further damaged. Ultimately Dr Grech relented and referred Patient C to a plastic surgeon. He thought that if she was going to have surgery, he should refer her to someone competent. The first surgeon to whom he referred Patient C refused to perform the surgery. Dr Grech referred her to another surgeon. As far as we are aware, no surgery has been performed.
3. Dr Grech agrees that it was fraught with danger for him to treat Patient C but that she was quite demanding. He felt under some pressure to provide her with clinical care.

Expert opinion

1. Dr Mullins' view is that "there are significant boundary violations" in this relationship. She expressed concern about the power imbalance in both the relationships and the fact that Patient C is 20 years younger than Dr Grech. When asked about the age gap in cross-examination, Dr Mullins said that the age gap is not critical and that her criticism would have been exactly the same even if they were the same age. We have not taken into account the age difference between Dr Grech and Patient C.

Conclusion

1. Dr Grech admits this particular. We agree that it demonstrates a lack of judgment on his part and is significantly below the relevant standard. The seriousness of this conduct is not alleviated by the fact that Patient C was his girlfriend before she became his patient or because she put pressure on him to treat her and to refer her to a plastic surgeon. While we can understand that it would have been difficult to resist her apparently manipulative behaviour, it was his responsibility, as a doctor, to do so. Patient C had a serious mental health condition and addiction issues. Dr Grech was mistaken to think that it was in her interests for him to treat her. His initial attempts to explain and minimise his behaviour show a lack of insight on his part.

Complaint 3.2 - failure to appropriately manage Patient C's health conditions

Unsatisfactory professional conduct

1. It is alleged that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law.

Particulars

1. The particulars are that: Between around 27 April 2017 and 22 May 2018 the practitioner failed to provide appropriate management of Patient C's mental health conditions, including by: failing to make appropriate referrals to mental health specialists; failing to liaise with and obtain records from Patient C's treating mental health practitioners.
2. In relation to the particulars in complaint 3.2, Dr Grech admits the factual basis for this particular and that it is below the relevant standard, but not significantly, and is not improper or unethical.

Requirements/standard

1. The requirements and standards are the same as for Complaint 3.1.

Dr Grech's evidence

1. At one point, Patient C said she was planning to discontinue taking her anti-psychotic medication. Dr Grech agreed that, if she had not been his girlfriend, he would have referred her to her psychiatrist for treatment. Dr Grech did not communicate with Patient C's treating psychiatrist or refer her to another psychiatrist. He admitted that the care he provided to her was "very basic indeed" and acknowledged that it would have been preferable for him to write to Patient A's psychiatrist about her obsession with her appearance.

Expert evidence

1. In Dr Mullins' view, Dr Grech should have sought medical records from previous general practitioners and from Patient C's treating psychiatrist, Dr St George. Dr Mullins sought and obtained records from Dr St George that Dr Grech had not obtained himself. According to Dr Mullins, Patient C needed specialist psychiatric review, especially after a note on 4 April 2018 that she "becomes paranoid and agitated." Despite recording that Patient C needed to obtain the advice of her treating psychiatrist, Dr Grech did not make the referral.

Conclusion

1. Dr Grech acknowledges that he should not have provided medical care and treatment to Patient C at all. When he did so, he did not manage that care appropriately. He did not obtain records or reports from treating mental health practitioners or refer her to mental health specialists. The conduct in Complaint 3.2 (a) and (b) demonstrates the judgment possessed, or care exercised, by Dr Grech is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Complaint 4 - giving false and misleading information to the Medical Council of NSW

Unsatisfactory professional conduct

1. It is alleged that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1) (l) of the National Law.

Particulars

1. The particulars are that: On 15 June 2018 the practitioner provided false and misleading information in relation to his relationship with Patient C during an interview with the Medical Council of New South Wales held pursuant to s150 of the National Law when he stated: Mr…. Has she ever been your patient? Dr Grech: No. No (indistinct) Mr… And she's in the care of a GP and a psychiatrist Dr Grech: Yes. She has - she has a general practitioner and she (indistinct) Prof Demirkol: So you don't look after her? Dr Grech: No Prof Demirkol: You don't look after her mental health and physical problems? Dr Grech: (indistinct) Certainly - certainly not. No in circumstances where he provided medical care and treatment to Patient C between around 27 April 2017 and 22 May 2018.
2. Dr Grech admits that he provided inaccurate information at the s 150 hearing and that, on reflection, that was improper.

Requirements/standards

1. In Health Care Complaints Commission v Kauser [2020] NSWCATOD 42, the practitioner faced a complaint of misleading s 150 hearing delegates. The Tribunal noted at [78] that "it is well established that lies to the Council can constitute improper conduct."

Dr Grech's evidence

1. At the s 150 hearing, Dr Grech denied that Patient C was his patient. That statement was false. In fact, Patient C had consulted Dr Grech less than four weeks earlier. At that time, she had been his patient for more than a year. Dr Grech has now fully admitted this particular, however at paragraph 52 of his statement, he said: "I did not intentionally mislead the delegates of the Medical Council."
2. When questioned about this statement during the Tribunal hearing, Dr Grech's response was "that statement just about covers it, doesn't it?" He said he did not anticipate the question at the s 150 hearing and could see negative implications if he admitted that he was treating Patient C.

Expert evidence

1. Dr Mullins' view is that this conduct is significantly below the standard expected and invites her strong criticism.

Conclusion

1. We are satisfied that Dr Grech intentionally misled the Medical Council by giving the false evidence set out in this particular. At first, Dr Grech sought to minimise his false statement to the Medical Council saying that he did not consider Patient C to be his patient. Even at the Tribunal hearing, he thought that his statement that he did not intentionally mislead the Medical Council "just about covers it". He finally acknowledged that he did not anticipate the question at the s 150 hearing and could see negative implications if he admitted that he was treating Patient C.
2. Dr Grech submitted that the Tribunal should take into account the whole transcript of the s 150 proceedings. For example, he candidly admitted other things such as that he had methamphetamine in his car for more than 24 hours before being stopped by Police. The seriousness of Dr Grech's false statement that he was not treating Patient C is not diminished by the fact that he was candid in relation to other matters. Matters such as the length of time the drugs were in his car are not nearly as significant or serious as lying about the fact that Patient C was his patient. The conduct particularised in this Complaint is "other improper and unethical conduct relating to the practice or purported practice" of medicine.

Complaint 5.1 - treatment of close family relative A

Unsatisfactory professional conduct

1. It is alleged that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law.

Particulars

1. The particulars are that: On various occasions between 12 July 2013 and 1 March 2018 the practitioner inappropriately provided medical care and treatment to Close Family Relative A in breach of the NSW Medical Council Guidelines for self-treatment and treating family members.
2. Dr Grech admits that he provided medical care and treatment to family members but denies these particulars. In relation to Patient C, he admits that his judgment and care were below the relevant standard, but not that they were significantly below that standard.

Requirements/standards

1. Doctors are advised whenever possible, to avoid providing medical care to anyone with whom they have a close personal relationship (Medical Board of Australia, 'Good Medical Practice: A code of conduct for Doctors in Australia' March 2014 at 3.14). Treating such people is inappropriate because of the "lack of objectivity, possible discontinuity of care, and risks to the doctor and patient."
2. The Medical Council of NSW has elaborated on the code of conduct in a publication called a "Guideline for self-treatment and treating family members" dated 2 December 2014. The guidelines states that medical practitioners should not be the primary or regular care providers for members of their family and should not initiate treatment. In emergency situations, a medical practitioner may treat a member of their family until another practitioner becomes available. Some of the reasons given in the guideline for avoiding treating family members are that: professional objectively may be compromised; medical practitioners may fail to explore sensitive areas; the patient may feel uncomfortable disclosing sensitive information; and the principles of informed consent may not be adhered to.
3. These principles apply to complaint 5.1, 5.2 and 5.3 each of which relate to the treatment of close relatives.

Dr Grech's evidence

1. Dr Grech describes Relative A as "a mixed martial artist" (MMA) who has sustained several major injuries and has twice required orthopaedic surgery. When injured, he seeks Dr Grech's advice. He has referred Relative A to sports physicians, orthopaedic surgeons and radiologists. On occasions, Relative A has seen other general practitioners.
2. Dr Grech recognises that treating a close relative may interfere with the therapeutic relationship because the relative may be reluctant to fully disclose all relevant information. While Dr Grech was aware of the guidelines, he did not believe he was transgressing those guidelines. Rather, he saw himself as "the best man for the job". He now understands that "they are a bit more than guidelines." However, he did not think his conduct in treating Relative A was improper or unethical. At the time he thought it was acceptable to refer relatives to specialists for further advice and treatment. He said he will not treat family members again.

Expert evidence

1. In Dr Mullins' opinion, two consultations for Relative A are of particular concern. In the first consultation on 12 July 2013, Dr Grech ordered HIV and hepatitis tests. Dr Mullins said there is no notation of the reasons for requesting those tests. In fact, Dr Grech has recorded "mma bout next week, needs routine blood tests to collect results next week. Referral HIV, HepBsAg, Anti-HCV [routine]." We accept Dr Grech's assertion that it is clear from the notes that routine blood tests were required for Relative A to participate in contact and combat sports. Dr Mullins may not have known that "mma" stands for "mixed martial artist", but she could have made some further enquiries as to the meaning of that abbreviation.
2. The progress notes also record a consultation with "Dr Mark Lenthen" at the Broadway practice on 19 July 2013. Dr Lenthen records "results - neg", "aware window period", "was not expecting a positive result". Dr Mullins expressed the view in her report that "there is no notation of any advice to seek alternative medical opinion offered to (Relative A) except where specialist referral is required. She considered "the departure from the standard was significantly below the standard, and invites (her) strong criticism." She did not modify that opinion in her supplementary report even though Dr Grech had clarified in his statement at [76] that the blood tests were a standard requirement for competition and that the results were discussed with another GP in the practice, Dr Lenthen.
3. It was put to Dr Mullins in cross examination that Dr Grech had referred Relative A to Dr Lenthen to communicate the results of the blood tests and in other respects he had provided adequate care. Dr Mullins moderated her criticism saying that she was critical but not strongly critical of Dr Grech treating Relative A. However, in re-examination, she said that the view she expressed in cross-examination did not affect the comment in her report that the conduct invited her strong criticism.
4. The second consultation of concern to Dr Mullins took place on 2 November 2017. Dr Grech's notes record "prostatitis" which is inflammation of the prostate. There is no record of any sexual history and the only testing is an MSU (mid-stream urine) test. The notes do not suggest that Relative A should seek an alternative opinion. In Dr Mullins' view, Dr Grech did not provide adequate care to Relative A in this instance because he would have felt uncomfortable about disclosing sensitive personal information about his sexual health. In addition, Dr Grech's objectivity may be compromised. She maintained that view despite conceding that Dr Grech provided appropriate care from time to time.

Conclusion

1. The guidelines warn doctors against treating family members because of the risk that the relationship will affect the quality of the care that is provided. Dr Grech was mindful of some of these risks when treating Relative A. He asked another GP in the practice to communicate the results of routine HIV and hepatitis tests. He referred Relative A to specialists when required.
2. While there are risks in treating family members, there is no evidence that the quality of the care was compromised in this case. His record keeping was adequate. Dr Grech's judgment is below the standard reasonably expected of a practitioner of an equivalent level of training or experience, but it is not significantly below that standard.

Complaint 5.2 - treatment of close family relative B

Unsatisfactory professional conduct

1. It is alleged that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law.

Particulars

1. The particulars are that: On various occasions between 27 May 2013 and 8 August 2017 the practitioner inappropriately provided medical care and treatment to Close Family Relative B in breach of the NSW Medical Council Guidelines for self-treatment and treating family members.
2. Dr Grech admits that he provided medical care and treatment to Relative B, but not that he is guilty of unsatisfactory professional conduct.

Dr Grech's evidence

1. In 2013, Dr Grech recommended to Relative B that she go to St Vincent's Hospital urgently. She had previously been diagnosed with a pulmonary embolism - a blockage in one of the pulmonary arteries in the lungs. Relative B was under the management of a respiratory physician and a vascular surgeon. Dr Grech said he followed her up periodically by monitoring her warfarin levels. Warfarin is a drug used to treat blood clots. He considered the progress notes he made to be adequate.
2. On 4 June 2013, Dr Grech records Relative B's INR. INR (International Normalised Ratio) is a test to ensure a patient is receiving the right dose of warfarin. Dr Grech recorded that Relative B's INR was not in the therapeutic range. He then noted that high alcohol intake over the weekend is probably a factor. There is no record of whether Dr Grech asked Relative B about other substances being taken. Dr Grech admits that he was not aware of relative B's mental health issues at the time.
3. In 2016 Dr Grech treated Relative B for shingles.

Expert opinion

1. Dr Mullins is not critical of Dr Grech's treatment of Relative B in May 2016 when she presented with "acute shingles". Dr Mullins considered this to be an emergency situation because the earlier a patient is given anti-viral medication, the better the outcome.
2. Dr Mullins' opinion is that close relatives are reluctant to disclose sensitive information and Dr Grech's professional objectivity is compromised when treating his relatives. The treatment of a close relative is not recommended unless there is an acute medical need. While Dr Mullins appreciated that Dr Grech had asked Relative B about behaviours that may have caused the INR levels, she was concerned that Relative B may not always be frank. However, when questioned about this opinion, she acknowledged that INR levels can be life threatening and that it was appropriate for Dr Grech to monitor Relative B's INR levels.

Conclusion

1. The guidelines warn doctors against treating family members because of the risk that the relationship will affect the quality of the care that is provided. Dr Grech provided care to Relative B in two emergency situations - one when she had shingles and the other when she was visiting Sydney following a pulmonary embolism and needed her INR to be monitored. There can be no criticism of him doing so in either of those contexts.
2. By monitoring her warfarin levels, without questioning Relative A about her intake of alcohol or other drugs, Dr Grech was not providing optimum care. While Dr Grech has breached the guidelines, his judgment is not significantly below the relevant standard.

Complaint 5.3 - treatment of close family Relative C

Unsatisfactory professional conduct

1. It is alleged that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (l) of the National Law.

Particulars

1. The particulars are that: On various occasions between 18 June 2013 and 30 April 2018 the practitioner inappropriately provided medical care and treatment to Close Family Relative C in breach of the NSW Medical Council Guidelines for self-treatment and treating family members.
2. Dr Grech admits that, on various occasions between 18 June 2013 and 30 April 2018, he inappropriately provided medical care and treatment to Close Family Relative C in breach of the NSW Medical Council Guidelines for self-treatment and treating family members. He acknowledged that that conduct was below the relevant standard in some respects but did not display a lack of judgment, nor was the conduct improper or unethical.

Background

1. On 8 March 2018, Dr Grech recorded that Relative C was "under considerable stress, anxiety++, may be subject to panic episodes, rest/fluids/reassure". On 26 March 2018, Dr Grech recorded "domestic dispute with flatmate, alleged bizarre behaviour - threatening etc, was required by police to attend svh a and e, presented to a and e myself and ascertained normal in every way - no disturbance of behaviour, lucid, orientated, communicative, calm, no evidence of being under the influence of substances . . ." (svh = St Vincent's Hospital; a and e = accident and emergency)

Dr Grech's evidence

1. Dr Grech accepted Dr Mullins' criticism that he should have referred Relative C to another practitioner about his mental health issues. He conceded that this conduct would be considered below standard by some members of the profession.

Expert evidence

1. Dr Mullins regarded the consultations relating to Relative C's mental health in 2018 as the most concerning. When he presented as being under considerable stress, Dr Grech reassured him and recommended rest and fluids. Dr Mullins is critical of the fact that Dr Grech did not refer Relative C to any other services. Two weeks later, following an incident where Relative C had allegedly threatened a flatmate and engaged in bizarre behaviour, Police required him to attend the Accident and Emergency Department at St Vincent's Hospital. When he attended the hospital, Dr Grech recorded that there was no evidence of Relative C being under the influence of any substances.
2. Dr Mullins is critical of Dr Grech for not noting any information about mental state, mood, drug or alcohol use, history of mental illness or family history. She is also critical of the fact that Dr Grech did not refer Relative C to any alternative services.

Conclusion

1. Dr Grech's decision to "treat" Relative C's mental health issues himself, rather than refer him to another GP or specialist, was in breach of the guidelines. While Relative C did disclose some sensitive information including the level of his anxiety, Dr Grech's objectivity was compromised by the fact of the relationship. In his favour, Dr Grech did keep adequate clinical notes. Overall, his judgment in this instance was below the relevant standard, but not significantly below.

Complaint 6 - inadequate medical records for Patients A - D and close Relatives A - C

Unsatisfactory professional conduct

1. Complaint Six is that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that he has contravened a provision of the Health Practitioner Regulation (New South Wales) Regulation 2016.

Requirements/standards

1. The HCCC alleges that by failing to maintain adequate medical records for four patients and three close relatives, Dr Grech has breached clause 1 of Schedule 4 to that Regulation. 1 INFORMATION TO BE INCLUDED IN RECORD (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following-- (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment or other medical service proposed by the medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment or other medical service that is given to or performed on the patient by the medical practitioner who is treating the patient-- (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to a medical treatment or other medical service proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient.

Particulars

1. The particulars are: The practitioner failed to maintain adequate medical records in accordance with Schedule 2 to the Health Practitioner Regulation (NSW) Regulation 2016 for each of Patients A, B, C and D and Close Family Relatives A, B and C in that the practitioner failed to adequately record: a. information known to the practitioner relevant to his diagnosis and treatment of patients including sufficient detail of: i. medical history; ii the findings of any physical examinations; iii medication instructions; and iv diagnosis. b. particulars of any clinical opinion reached by the practitioner; c. plans or goals of treatment; and d management decisions to allow another doctor to manage the patient's case.
2. We have assumed that the Health Care Complaints Commission intended to refer to clause 1 of Schedule 4 to the Health Practitioner Regulation (New South Wales) Regulation 2016 set out above.
3. Dr Grech admits that, in some cases, the records he wrote do not include sufficient detail in relation to Patients A, B and C. They were long term patients and he did not repeat background information and medical history in the notes. For Patient A, he admits that he did not always document his discussions with him in detail but considers the notes to be sufficient to communicate the basis for his treatment decisions. He accepts that he should have kept a more comprehensive record but not that he has contravened clause 1 of Schedule 4 to the Health Practitioner Regulation (New South Wales) Regulation for Patient A.
4. For Patient B, Dr Grech accepts that he failed to document the rationale for a particular medication over time. Dr Grech does not admit that the records in relation to family members are as deficient as his records for his other patients.

Expert evidence

1. Dr Mullins' opinion is that the medical records do not meet the legislative requirements outlined above. For Patient A, history, examination and treatment are not sufficiently detailed to enable a colleague to take over the medical care of that patient. Prescriptions are not always recorded and, in some instances, only the drug, not the dose or quantity, is recorded.
2. For Patient B, Dr Mullins' view was that Dr Grech's records do not comply with the legislative regulations. "History, examination, therapeutic indications for various medications, particularly drugs of addiction such as analgesics and benzodiazepines are not documented." A colleague would have great difficulty taking over the care of Patient B based on these records.
3. For Patient C, Dr Mullins' view is that the records do not include sufficient information to allow another medical practitioner to continue management of her case. Records relating to medical history are incomplete. No mental state examination or treatment plan is recorded. In particular, there is no documentation of Patient C's attempted suicide on 13 April 2018 or any safety plan following that attempt.
4. For Patient D, Dr Mullins' view is that the documentation does not comply with the regulations because the history is inadequate, especially the lack of information about drug and alcohol consumption. Medical indications for the various prescriptions were not detailed on most occasions. The records do not have sufficient detail to enable another practitioner to continue care.
5. Dr Mullins' assessment is that Dr Grech has documented his consultations with his close relatives but in some cases, there is not enough detail.

Conclusion

1. We find that Dr Grech's notes for Relatives A, B and C do not contravene clause 1 of Schedule 4 to the Regulation. However, for Patients A, B, C and D, there are marked deficiencies. For the reasons Dr Mullins gives, Dr Grech's record keeping for these patients contravenes the standard in clause 1 of Schedule 4 to the Regulation and therefore amounts to unsatisfactory professional conduct.

Complaint 7 - being made the subject of a criminal finding

Grounds for complaint

1. Complaint Seven is that pursuant to section 144(a) of the National Law, Dr Grech has been made the subject of a criminal finding for a criminal offence in NSW. 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.
2. We note that Complaint Seven is not a complaint of unsatisfactory professional conduct or professional misconduct. Rather, we understand the HCCC to be submitting that Dr Grech has been made the subject of a criminal finding for a criminal offence and that "the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession": National Law, 149C (1)(c). We have assumed that Dr Grech does not admit that the circumstances of Complaint Seven render him unfit in the public interest to practise medicine.

Particulars

1. The particulars are that: 1. On 23 April 2018 at around 9.45pm NSW Police conducted a stop and search of the practitioner's vehicle on Morehead Street in Redfern NSW. 2. A search of the practitioner's vehicle revealed a briefcase containing 1.19 grams of methyl amphetamine and an assortment of glass pipes and straws used for smoking prohibited substances. 3. The practitioner was issued with a court attendance notice for offences relating to the possession of prohibited drugs and equipment for the administration of drugs. 4. On 4 February 2019, at the Downing Centre Local Court in Sydney, the practitioner was found guilty in relation to: one offence of Possess Prohibited Drug contrary to section 10(1) of the Drugs Misuse and Trafficking Act 1985 (NSW); and one offence of Possess Equipment to Administer Prohibited Drug contrary to section 11(1) of the Drugs Misuse and Trafficking Act 1985 (NSW). 5. On 4 February 2019 the practitioner was sentenced, without proceeding to conviction, to a Conditional Release Order for a period of 18 months, pursuant to section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
2. The HCCC outlined the circumstances of the offences in a "s 40 letter" to Dr Grech dated 26 September 2019: The circumstances of the offences was that the police conducted a vehicle stop around 9.45 pm on 23 April 2018. Police conducted a search of your vehicle and located a briefcase in the boot of the vehicle. Within the vehicle, Police located a small orange box containing an assortment of glass pipes and a small clear resealable bag of a crystal substance. In relation the glass pipes, when questioned by police you stated, "I take responsibility for it" and "a bong for smoking prohibited substances." When questioned by the police about the small clear resealable bag of a crystal substance you stated, "I take full ownership for it" and "it's crystal meth."
3. This version accords with the Fact Sheet attached to the Court Attendance Notice. The statement of Constable Hohn was not in evidence, but the attached photographs (showing the orange box and its contents) and Constable Hohn's notebook entries were in evidence. Constable Vella's statement was in evidence.
4. Dr Grech admits that this particular is factually correct. He gave evidence about the circumstances of the offences to the Local Court on 4 February 2019. He said that a person who we assume is Patient C was threatening self-harm and refused to leave his apartment. He grabbed the substances, put them in a box and put the box in his brief case. He then drove Patient C home. Dr Grech says he forgot about the box in his brief case and was surprised when the police discovered it after searching his car. The Local Court found that "the drug and the equipment belonged to somebody and that you had taken it from her." The Magistrate expressed the view that Dr Grech should have made arrangements for it to be handed in or disposed of immediately.
5. Dr Mullins was not asked for her opinion about this complaint.

Conclusion

1. Dr Grech has admitted this complaint and we find the subject matter of the complaint to be proven: National Law, s 149. The issue is whether the circumstances of the offences mean that Dr Grech is "unfit in the public interest to practise medicine." If so, we may suspend or cancel his registration, although we are not obliged to do so.
2. The circumstances are that the Court found that the drug and the equipment did not belong to Dr Grech but were in his possession. The finding was that he took them from his then girlfriend, Patient C. If that is correct, he should have disposed of the substances immediately. However, not doing so does not mean that Dr Grech is "unfit in the public interest to practise medicine". This complaint is not made out.

Complaint 8.1 and 8.2 - failed to notify National Board

Unsatisfactory professional conduct

1. It is alleged that Dr Grech is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that he has contravened section 130 of the National Law. Section 139B(1)(b) of the National Law provides that: (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. The contravention is alleged to have been of s 130 of the National Law: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (3) In this section - relevant event means - (a) in relation to a registered health practitioner - (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or (ii) the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment; or (iii) appropriate professional indemnity insurance arrangements are no longer in place in relation to the practitioner's practice of the profession; or (iv) the practitioner's right to practise at a hospital or another facility at which health services are provided is withdrawn or restricted because of the practitioner's conduct, professional performance or health; or (v) the practitioner's billing privileges are withdrawn or restricted under the Medicare Australia Act 1973 of the Commonwealth because of the practitioner's conduct, professional performance or health; or (vi) the practitioner's authority under a law of a State or Territory to administer, obtain, possess, prescribe, sell, supply or use a scheduled medicine or class of scheduled medicines is cancelled or restricted; or (vii) a complaint is made about the practitioner to an entity referred to in section 219(1)(a) to (e); or (viii) the practitioner's registration under the law of another country that provides for the registration of health practitioners is suspended or cancelled or made subject to a condition or another restriction;

Particulars

1. The particulars are that: 1. The practitioner failed to notify the National Board within 7 days that he had been charged, on 24 April 2018, with offences punishable by 12 months imprisonment or more. 2. The practitioner failed to notify the National Board within 7 days, that on 4 February 2019 he had been the subject of findings of guilt for offences punishable by imprisonment.
2. Dr Grech admits that he failed to notify the National Board within 7 days that he had been charged with offences punishable by 12 months imprisonment or more. Dr Grech does not admit 8.2. Furthermore, he does not admit that failure to notify under s 130 of the National Law constitutes unsatisfactory professional conduct.

Dr Grech's evidence

1. In his statement at paragraph 92, Dr Grech wrote that: AHPRA was notified of the charges on 25 April 2018 by Constable Hohn. That is within the 7-day time frame of the charge on 24 April, but the notification was not made by me personally on that date. I personally notified AHPRA, but not within 7 days.
2. Dr Grech conceded that Constable Hohn notified AHPRA independently and not as his agent or representative.
3. On 5 February 2019, Dr Grech received an email from his solicitor, Ms Davis, asking him if he would like her to inform AHPRA of the finding of guilt. Dr Grech replied " . . . yes, please inform AHPRA for me." We accept Ms Davis' evidence that she overlooked her agreement to notify AHPRA. Dr Grech said in his statement that he personally emailed the Medical Council of the outcome of the court hearing on 5 February 2019. In cross-examination, he conceded that he was aware that he needed to notify the national body, AHPRA, not the Medical Council of criminal matters, charges and findings of guilt.

Conclusion

1. These particulars are proven and, by definition, constitute unsatisfactory professional conduct: National Law, s 139B(1)(b). Failure to notify the National Board within seven days of the charging and the criminal finding respectively, is a contravention of the National Law and constitutes unsatisfactory professional conduct. Despite Ms Davis' advice that she had overlooked notifying AHPRA on Dr Grech's behalf, the Tribunal has no discretion as to whether a contravention of the kind set out in s 139B(1)(b) of the National Law constitutes unsatisfactory professional conduct: Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [24].

Complaint 9 - individually or collectively, complaints amount to professional misconduct

Professional misconduct

1. Complaint Nine is that Dr Grech is guilty of professional misconduct under s 139E of the National Law in that he has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in 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 the suspension or cancellation of the practitioner's registration

Particulars

1. The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or engaged in 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 the suspension or cancellation of the practitioner's registration Complaint Four of itself establishes a finding of professional misconduct; Complaints One, Two, Three, Four and Seven justify a finding of professional misconduct. When two or more of the Complaints are taken together, a finding of professional misconduct is justified.
2. Complaint Seven is not a complaint of unsatisfactory professional conduct so it cannot be taken into account in the context of s 139E of the National Law.
3. Dr Grech does not admit that he has engaged in professional misconduct.

Legal principles

1. The first issue is whether Complaint Four, by itself, is unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of Dr Grech's registration. If not, do two or more of Complaints One, Two, Three and Four, considered together, constitute unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation.
2. In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20] Basten JA concluded that: 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.
3. In Health Care Complaints Commission v Dr Gow [2008] NSWMT 2, the Medical Tribunal made the following comment in relation to the predecessor to s 139E, s 37 of the Medical Practice Act 1992 (NSW): The Tribunal is satisfied that the determination of whether conduct amounts to professional misconduct has as its starting point, an objective assessment of the practitioner's conduct against the standard. The Tribunal is of the view that in coming to a decision about whether conduct is "sufficiently serious " to justify the sanction of de-registration, circumstances which bear on that objective assessment of that conduct may properly be taken into account.

Conclusion

1. We are satisfied that Dr Grech intentionally misled the Medical Council by giving the false evidence set out in Complaint Four. In HCCC v Chowdhury [2015] NSWCATOD 65 at [81], the Tribunal observed that, "it is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities and uphold the highest standards of honesty and integrity in their dealings with those authorities." Being truthful and candid in every interaction with the regulatory authorities helps ensure that the health and safety of the public is protected.
2. Neither the health and safety of Patient C, nor that of any member of the public, was put at risk by Dr Grech giving false evidence. However, if accepted, the false information would have meant that Dr Grech would not have been the subject of Complaint Three. That complaint was that Dr Grech is guilty of unsatisfactory professional conduct by breaching "professional boundaries" when he provided medical care and treatment to Patient C who was his girlfriend at the time. We have found that complaint to constitute unsatisfactory professional conduct. The integrity of the regulatory system relies on practitioners communicating in an open and honest manner. Even though the public's health or safety was not put at risk directly, Dr Grech intentionally misled the Medical Council in a material respect. His reason for doing so was to avoid further scrutiny. We regard this conduct as being sufficiently serious to justify suspension or cancellation of Dr Grech's registration.
3. Even if Complaint 4, by itself, does not constitute professional misconduct, that complaint, when considered together with Complaints 1 and 3 amount to conduct of a sufficiently serious nature to justify suspension or cancellation of Dr Grech's registration.
4. Complaint One relates to inappropriate prescribing of erectile dysfunction drugs to Patient A, benzodiazepines to Patient B, anti-psychotic drugs to Patient C (who was his girlfriend at the time) and Duromine, a weight loss medication, to Patient D. The inappropriate prescribing includes drugs for which dependence may be developed, to patients who Dr Grech knew were illicit drug users, and in the case of Patient D, a drug dependent person. For Patient A, Dr Grech knew that he had lifestyle risks and illicit drug use, including of methylamphetamine. In relation to Patient B, Dr Grech accepted that he had maintained her dependence on benzodiazepines and had no plan to manage or reduce the medication. Patient D was addicted to GHB, had mental health issues and overdosed in April 2018.
5. Complaint Three is also particularly serious. Dr Grech failed to perform an adequate medical assessment on Patient C, who was his girlfriend at the time, before prescribing Abilify. Despite exhibiting significant symptoms of mental illness and engaging in illicit drug use, he failed to refer her to a psychiatrist.

Powers

1. As we have found that Dr Grech is guilty of professional misconduct, we may suspend or cancel his registration. Under s 149C(7) of the National Law, the Tribunal may order the cancellation of the practitioner's registration and impose a period before the practitioner may again apply for registration. Alternatively, as we have found Dr Grech to be guilty of unsatisfactory professional conduct in some respects, we may make any of the protective orders set out in s 149A of the National Law. These include giving a caution or reprimand, and imposing conditions on Dr Grech's registration.

Legal principles

1. One object of the National Law is "to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": National Law, s 3. In exercising a function under the National Law, "the protection of the health and safety of the public must be the paramount consideration": National Law, s 3A. Section 4 requires the Tribunal "to exercise its functions having regard to the objectives and guiding principles" set out in section 3.
2. The Tribunal should focus on the protection of the public and the maintenance of proper professional standards, not on punishment: Lee v Health Care Complaints Commission [2012] NSWCA 80 Barrett JA at [21] - [22]. As Basten JA observed in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognize the importance of complying with professional standards and the risks of failing to do so.
3. The Court of Appeal held in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] that protecting the health and safety of the public "includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession."
4. In summary, in the circumstances of this case, we must take into account any need to protect the public against further misconduct by Dr Grech, as well as the need to protect the public through general deterrence; by reinforcing high professional standards and by maintaining public confidence in the profession.

Submissions

1. The HCCC is calling for Dr Grech's registration to be cancelled with a lengthy non-review period of between 2 and 3 years because of lack of reform and insight and for deterrence: National Law, s 149C(7). Dr Grech opposes cancellation or suspension. He says a reprimand is sufficient because it reflects the seriousness of these matters. He believes that the current conditions imposed by the Medical Council are adequate. Those conditions include that he is "not to possess, supply, administer or prescribe any 'drugs of addiction' (Schedule 8 drugs), any Schedule 4, Appendix D (S4D) drugs or drugs for erectile dysfunction. He is also subject to 'category B' supervision. He does not oppose an audit condition.
2. Dr Grech ceased practising in May 2020 when his employment was terminated. He said he would like to return to general practice as soon as possible. If he returns to practice, Dr Grech agreed that he should join a group practice where he would have the support of other practitioners. He has the offer of becoming a part-owner of a new practice in Woolloomooloo, NSW. If that happens, he anticipates being appointed as the medical director. He would be prepared to practise under the supervision of someone else in the practice if that is what the Tribunal decides.

Seriousness of the conduct

1. We have addressed the seriousness of complaints Four, One and Three above. The professional boundary transgressions in Complaint Two were most acute in relation to Patient C. Dr Grech provided her with medical services for both physical and mental health issues for about 12 months while they were in an intimate relationship. Patient C was in an extremely vulnerable position because of her diagnosis of schizoaffective disorder and her use of methyl amphetamine.
2. Complaint Five relating to inappropriately providing medical care and treatment to three close family members does not amount to unsatisfactory professional conduct. Complaint Six, relating to maintaining adequate medical records, does constitute unsatisfactory professional conduct. While record keeping is not the most significant issue, Dr Grech needs to improve his record keeping skills. Complaint Seven is not made out.
3. Each particular in Complaint Eight is made out and amounts to unsatisfactory professional conduct. However, in circumstances where Dr Grech mistakenly notified the Medical Council and understood that his solicitors would notify the National Board, we do not consider that this conduct warrants any protective orders being made.

Insight

1. Dr Grech said that the s 150 hearing in June 2018 and the subsequent proceedings had a big impact on him. That experience has been "educational and informative". In future, he said he would observe and abide by relevant guidelines. He is confident that he can avoid the situations that led to the complaints. He acknowledged that his relationship with Patient C was problematic on many levels and damaging to him professionally. He would be on guard in future not to form such a relationship.
2. An audit of Dr Grech's note taking was undertaken on 7 December 2018 by Dr Cox. She described the note taking in relation to a patient presenting with mental health issues as 'minimal' and 'inadequate'. Dr Grech prescribed Panadeine Forte tablets on 4 occasions. He did not think he had completed the online prescribing course at that stage. He commented that "old habits die hard" but added that his assessment and note taking had improved.
3. If we allowed him to prescribe Schedule 4D and Schedule 8 drugs, he says he understands that the first line of intervention for chronic pain is to find the cause and then reduce the intensity by physical therapy, exercises, acupuncture and analgesics. He would start with non-opiates and, if that did not work, he would prescribe a drug such as tramadol. When prompted, he also mentioned the benefits of referring patients to a pain clinic.
4. Dr Grech says he will continue to comply with the requirements for continuing education. The Medical Council required him to complete short on-line courses in note taking and the prescription of opiates and benzodiazepines. He has completed those courses. He has not completed any courses relating to boundary issues because the Medical Council did not require him to do so and because he has been out of work for extended periods. He says he has thought about those issues and looked closely at the Code of Conduct. In our view, Dr Grech has merely done what the Medical Council has required of him. He has not sought to embark on a more ambitious process of reform.
5. Dr Grech admits that his judgment was clouded at times, especially in relation to treating his girlfriend, Patient C. Dr Grech also made concessions during the hearing, such as that it would have been beneficial to communicate with Patient C's psychiatrist.
6. He initially lied to the Medical Council by saying that he was not treating Patient C when he had treated her as recently as three weeks before that hearing. In his statement he still did not admit that he was treating Patient C. He only fully admitted this particular at the hearing.

References

1. Dr Grech provided character references from seven individuals including general practitioners and patients. These people hold him in high regard and attest to his good reputation. We accept that these views are genuinely held.

Supervision order

1. One of Dr Grech's practice conditions is that he be supervised under Category B supervision in accordance with the Medical Council's compliance policy. Supervision meetings are for the purpose of reviewing Dr Grech's general practice skills and competencies and to address the issues highlighted in the Medical Council's decision. In support of his case, Dr Grech provided the quarterly reports from his supervisor, Dr Yohendran, to the Medical Council. However, while Dr Yohendran thought he had been given a copy of the Medical Council's decision of 12 July 2018, he was not aware of any of the specific issues raised in that decision. He had not discussed any of those matters with Dr Grech. Dr Yohendran saw his role as ensuring that Dr Grech is diagnosing and prescribing correctly.

Conclusion

1. Taking into account the seriousness of Dr Grech's conduct, the level of insight and the character references he provided, we consider the appropriate order to be that Dr Grech be reprimanded and that his registration be suspended for 6 months. During that time, if Dr Grech wishes to resume practice, he must satisfactorily complete a tailored education program. As there are no generic educational programs available that would address all Dr Grech's needs, a tailored program should be developed by a private provider. Dr Grech must meet the costs of complying with that order.
2. On resuming practice, Dr Grech's registration will be subject to the conditions identified below. He must practise under what is known as category C supervision. He must practise only in a group practice where there are at least two other registered medical practitioners. Such a condition helps ensure that Dr Grech will receive support from professional colleagues. He will not receive that support if he engages in home visits or visits to aged care facilities, so he is prohibited from consulting in those environments. Although Dr Grech's inappropriate prescribing related to Schedule 4D drugs, he should also be prohibited from dealing with Schedule 8 drugs. Both Schedules comprise drugs of dependence and Dr Grech has not demonstrated that he can appropriately prescribe such drugs. In addition, we strongly recommend that Dr Grech be subject to a Performance Assessment.

Orders 1. Leave is granted for the HCCC to file an Amended complaint. 2. Dr Grech is reprimanded. 3. Dr Grech's registration is suspended for a period of six months from the date of this decision. 4. Dr Grech must, within 6 months of 4 February 2021, complete a tailored education program designed by a private consulting body that has been approved by the Council. 1. With reference to Good medical practice: a code of conduct for doctors in Australia, the education program must cover: ­ professional values ­ professional boundaries ­ conflicts of interest ­ complying with regulatory processes 1. The program must be of at least 24 hours total duration. 2. The program must include an assessment component. 3. Within one month of 4 February 2021 Dr Grech must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned program. 4. Within one month of completing the abovementioned program, Dr Grech is to provide the written report from the private consulting body as evidence to the Council that he has satisfactorily completed the program. 5. Dr Grech authorises the Council to provide the private consulting body with a copy of the reasons for decision which imposed this order. 6. Dr Grech is to pay for any costs incurred in complying with this order. 1. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 2. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. 3. The following conditions are imposed on Dr Grech's registration when the suspension period expires: 1. To advise the Medical Council of NSW in writing at least seven days prior to changing the nature or place of his practice. 2. To practise only in a group practice approved by the Medical Council of NSW where there are at least two registered medical practitioners (excluding the practitioner). 3. Not to conduct home visits or visits to aged care facilities. 4. Not to possess, supply, administer or prescribe any drug of addiction (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). 5. Not to possess, supply, administer or prescribe any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). 6. To practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. The Policy is varied to require three-monthly reporting to the Medical Council of NSW. 1. At each supervision meeting the practitioner is to review and discuss his practice with the approved supervisor with particular focus on: 1. patient assessment and management 2. patient follow-up 3. appropriate prescribing practices 4. management of patients with erectile dysfunction, including prescribing of: ­ sildenafil ­ alprostradil ­ tadalafil ­ verdenafil 1. v. management of drug dependent patients 2. vi. pain management 3. vii. medical record reviews 1. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the reasons for decision which imposed this condition. 1. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions. 2. Dr Grech is to pay the Health Care Complaints Commission's costs as agreed. If agreement is not reached, costs are to be assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

Costs

1. The HCCC seeks an order that Dr Grech pay its costs. The Tribunal has power to order that one party should pay another party's costs: National Law, Sch 5D, cl 13. That provision states that: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
2. The general rule is that the unsuccessful party should be ordered to pay the successful party's costs. In legal terms, that principle is expressed as costs following the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 per Meagher JA, Emmett JA and Beech-Jones J at [42].
3. The presumption that a successful party is entitled to costs is generally only displaced where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]. The Health Care Complaints Commission was largely successful in these proceedings and there was no disentitling conduct.
4. Dr Grech is to pay the Health Care Complaints Commission's costs as agreed. If agreement is not reached, costs are to be assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

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

Amendments 04 February 2021 - Amended formatting in Coversheet. 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: 04 February 2021