Health Care Complaints Commission v Khalighimonfared - [2022] NSWCATOD 78 - NSWCATOD 2022 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Khalighimonfared

[2022] NSWCATOD 78

NCAT Occupational|2022-04-05|Before: Dr J

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Source facts

Court

NCAT Occupational

Decision date

2022-04-05

Before

Dr J

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

Introduction

In these proceedings the applicant Health Care Complaints Commission ('the HCCC') contended that the respondent, Dr Mehdi Khalighimonfared, is guilty of unsatisfactory professional conduct and professional misconduct, as those terms are defined in the Health Practitioner Regulation National Law (NSW) ('the National Law'). Dr Khalighimonfared ('the practitioner') is alleged to be guilty of such conduct in the course of his treatment of six patients in the years 2016, 2017, 2018 and 2019, when he worked as a general medical practitioner.
The Complaints and Particulars thereof are set out in an Amended Complaint dated 5 April 2022. By consent, leave was granted to file this Amended Complaint which removed all references to the drug tramadol. This drug was included in Schedule D to the Poisons and Therapeutic Goods Regulation 2008 [NSW] (Schedule D') only as of 17 April 2020.
The Amended Complaint reads literally as follows, relevantly for present purposes:

[2]

Complaint One The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience: and/or ii. engaged in improper or unethical conduction relating the practice or purported practice of medicine.

[3]

Background To Complaint One This Complaint relates to the practitioner's prescribing to Patients A to F. Annexures A to F to this Complaint identify drugs prescribed by the practitioner to Patients A to G respectively.

Patients A and B saw the practitioner at the Griffith Practice and the Gladesville Practice
Patient C saw the practitioner at the Griffith Practice, the Bondi Practice and the Gladesville Practice
Patient D saw the practitioner at the Griffith Practice, the Bondi Practice and the Gladesville Practice
Patient E saw the practitioner at the Griffith Practice and the Gladesville Practice
Patient F saw the practitioner at the Griffith Practice and the Gladesville Practice The drugs identified in Annexures A to F are: (i) drugs of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966 (NSW) ("PTGA") being drugs contained in Schedule 8 of the Poisons List proclaimed under section 8 of the PTGA ('Schedule 8 drugs'). (ii) Restricted substances within the meaning of the PTGA, being drugs contained in Schedule 4. For the purposes of the particulars set out below, the recognised therapeutic standard of what was appropriate in the circumstances includes: (i) the Full Prescribing information published by MIMS Australia for the relevant drug at the relevant time (ii) the Product and Consumer Medicine Information published by the Therapeutic Goods Association for the relevant drug at the relevant time (iii) The Medical Board of Australia "Good Medical Practice: A code of Conduct for Doctors in Australia" issued March 2014. Particulars 1,2,3,4,5,69,11,12,16,18,20,21,22,25,26,27,30,31,32,33,36 and 37 are relied upon as constituting unsatisfactory professional conduct for the purposes of section 139B(1)(a) individually or in any combination with the other particulars. Particulars 3,4,5,9,11,12,16,18,20,21,22,25,26,27,30,31,32,33,36 and 37 are relied upon in the alternative, individually or in combination with other particulars, as other improper conduct for the purposes of section 139B(1)(l).

[4]

Particulars of Complaint One Patient A 1. Between 26 October 2017 to 13 September 2019, in the course of treating Patient A, the practitioner failed to properly assess Patient A prior to prescribing her with the Schedule 8 drugs Oxycontin and Fentanyl failing to: 1. take an appropriate history and perform an appropriate examination 2. ensure the practitioner had an appropriate clinical indication to prescribe a potential drug of dependence 3. explore Patient A's potential misuse of opioids having regard to the quantities of Oxycontin and Fentanyl prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner 4. consider urinary drug screening to assess disclosed or undisclosed drug use 5. offer alternative approaches to pain management such as the use of SSRs (selective serotonin reuptake inhibitors) 1. Between January 2019 to 13 September 2019 the practitioner failed to make timely referrals for specialist assistance when prescribing the Schedule 8 drug Oxycontin and Fentanyl. 2. Between 26 October 2017 to 13 September 2019 the practitioner's prescribing for Patient A of the Schedule 8 drugs Oxycontin and Fentanyl (as set out in Annexure A) 1. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008 ('the PTGR') 2. otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of Oxycontin and Fentanyl prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner. 1. Between 26 October 2017 to 13 September 2019, the practitioner prescribed for Patient A the Schedule 8 drugs Oxycontin and Fentanyl as set out in Annexure A in circumstances which: 1. Oxycontin and Fentanyl were type C drugs of addiction within the meaning of section 28(6) of the PTGA 2. the practitioner should have known that Patient A was a drug seeking person 3. the practitioner did not obtain the proper authority from the Secretary of NSW Health. 4. on 13 September 2019 the practitioner prescribed the Schedule 8 drug Oxycontin when he was still waiting on an authority to be issued contrary to section 28(3) of the PTGA. 1. Between 26 October 2017 to 13 September 2019, in the course of treating Patient A, the practitioner failed to recognise and respond appropriately to Patient A's drug seeking behaviour. Patient B 1. Between 12 April 2017 to 15 April 2019, in the course of treating Patient B, the practitioner failed to properly assess Patient B prior to prescribing him with the Schedule 8 drugs Oxycontin and Fentanyl by failing to: 1. take an appropriate history and perform an appropriate examination 2. ensure the practitioner had an appropriate clinical indication to prescribe a potential drug of dependence 3. explore Patient B's use or potential misuse of opioids when providing the initial script 4. telephone and consult the Prescription Shopping Program 5. telephone and consult with the Drug and Alcohol Specialist Advisory Service (DASAS) 6. offer alternative approaches to pain management such as the use of SSRIs (selective serotonin reuptake inhibitors) until May 2019 7. consider alternatives such as physical therapies prior to issuing scripts 8. consider urinary drug screening to assess disclosed or undisclosed drug use. 1. Between 12 April 2017 to 15 April 2019 while treating Patient B the practitioner failed to make timely referrals for pain specialist assistance when prescribing the Schedule 8 drug Oxycontin and Fentanyl. 2. Between 12 April 2017 to 15 April 2019, the practitioner's prescribing for Patient B of the Schedule 8 drugs Oxycontin and Fentanyl as set out in Annexure B: 1. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; 2. otherwise was not clinically appropriate in the patient's circumstances; having regard to the quantities of Oxycontin and Fentanyl the dosages prescribed and the frequency and duration of prescribing by the practitioner. 1. Between 12 April 2017 to 15 April 2019, the practitioner prescribed for Patient B the Schedule 8 drugs Oxycontin and Fentanyl as set out in Annexure B in circumstances which 1. Oxycontin and Fentanyl were type C drugs of addiction within the meaning of section 28(6) of the PTGA; 2. the practitioner should have known that Patient B was a drug seeking person; 3. the practitioner did not obtain the proper authority from the Secretary of NSW Health; contrary to section 28(3) of the PTGA. 1. Between 12 April 2017 to 15 April 2019, in the course of treating Patient B, the practitioner failed to recognise and respond appropriately to Patient B's drug seeking behaviour. Patient C 1. Between 11 January 2017 to 21 March 2019, in the course of treating Patient C, the practitioner failed to properly assess Patient C prior to prescribing him with the Schedule 8 drugs Fentanyl and Targin by failing to: 1. take an appropriate history and perform an appropriate examination 2. ensure the practitioner had an appropriate clinical indication to prescribe a potential drug of dependence 3. explore Patient C's use and potential misuse of opioids through targeted questioning of Patient C 4. telephone and consult the Prescription Shopping Program 5. telephone and consult with the Drug and Alcohol Specialist Advisory Service (DASAS) 6. consider alternatives such as physical therapies or psychological therapies prior to issuing scripts 7. failed to consider urinary drug screening to assess disclosed or undisclosed drug use. Between 11 January 2017 to 21 March 2019 while treating Patient C the practitioner failed to make timely referrals for specialist assistance when prescribing the Schedule 8 drugs Targin and Fentanyl. 1. Between 11 January 2017 to 21 March 2019 the practitioner's prescribing for Patient C of the Schedule 8 drug Fentanyl as set out in Annexure C: 1. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; 2. otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of Fentanyl prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner. 1. Between 11 January 2017 to 21 March 2019, the practitioner prescribed for Patient C the Schedule 8 drugs Targin and Fentanyl as set out in Annexure C in circumstances which: (d) Targin and Fentanyl were type C drugs of addiction within the meaning of section 28(6) of the PTGA (e) the practitioner should have known that Patient C was a drug seeking person (f) the practitioner did not obtain the proper authority from the Secretary of NSW Health contrary to section 28(3) of the PTGA. 1. From 23 March 2018, the practitioner inappropriately continued to prescribe the Schedule 8 drug Fentanyl to Patient C after he received a warning from the Pharmaceutical Regulatory Unit not to prescribe. 2. Between 31 October 2018 to 21 March 2019, the practitioner inappropriately continued to prescribe the Schedule 8 drug Fentanyl to Patient C, despite receiving Patient C's medical records from the Griffith practice on 31 October 2018 which recorded that Schedule 8 drugs should not be prescribed to Patient C. 3. Between 11 January 2017 to 21 March 2019, in the course of treating Patient C, the practitioner failed to recognise and respond appropriately to Patient C's drug seeking behaviour. Patient D 1. Between 19 August 2016 to 8 December 2017, in the course of treating Patient D, the practitioner failed to properly assess Patient D prior to prescribing him with the Schedule 8 drug Fentanyl by failing to: 1. take an appropriate history and perform an appropriate examination 2. ensure he had an appropriate clinical indication to prescribe a potential drug of dependence 3. explore Patient D's potential misuse of opioids when giving the initial script 4. telephone and consult the Prescription Shopping Program 5. telephone and consult with the Drug and Alcohol Specialist Advisory Service (DASAS) 6. consider alternatives such as physical therapies prior to issuing scripts 7. prepare a chronic pain management plan 8. consider urinary drug screening to assess disclosed or undisclosed drug use. 1. Between 19 August 2016 to 8 December 2017, while treating Patient D the practitioner failed to make timely referrals for specialist assistance focused on comprehensive pain management such as a pain specialist, when prescribing the Schedule 8 drug Fentanyl to Patient D. 2. Between 19 August 2016 to December 2017, the practitioner's prescribing for Patient D of the Schedule 8 drug Fentanyl as set out in Annexure D: 1. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; 2. otherwise was not clinically appropriate in the patient's circumstances having regard to the quantities of Fentanyl prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner. 1. Between 19 August 2016 to 8 December 2017, the practitioner prescribed for Patient B the Schedule 8 drug Fentanyl as set out in Annexure D in circumstances which: 1. Fentanyl is a type C drug of addiction within the meaning of section 28(6) of the PTGA 2. the practitioner should have known that Patient C was a drug seeking person; 3. the practitioner did not obtain the proper authority from the Secretary of NSW Health contrary to section 28(3) of the PTGA. 1. Between 19 August 2016 to 8 December 2017 in the course of treating Patient D, the practitioner failed to recognise and respond appropriately to Patient D's drug seeking behaviour. Patient E 1. Between 7 June 2017 to 7 January 2019, in the course of treating Patient D, the practitioner failed to properly assess Patient E prior to prescribing him with the Schedule 8 drug Fentanyl by failing to: 1. take an appropriate history and perform an appropriate examination. 2. telephone and consult the Prescription Shopping Program. 3. telephone and consult with the Drug and Alcohol Specialist Advisory Service (DASAS). 4. consider alternatives such as physical therapies prior to issuing scripts. 1. Between 7 June 2017 to 7 January 2019, the practitioner's prescribing for Patient E of the Schedule 8 drug Fentanyl as set out in Annexure E: 1. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR: 2. otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of Fentanyl prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner. 1. Between 7 June 2017 to 7 January 2019, the practitioner prescribed for Patient E the Schedule 8 drug Fentanyl as set out in Annexure E in circumstances which: 1. Fentanyl is a type C drug of addiction within the meaning of section 28(6) of the PTGA; 2. The practitioner should have known that Patient E was a drug seeking person; 3. The practitioner did not obtain the proper authority from the Secretary of NSW Health contrary to section 28(3) of the PTGA. 1. Between 7 June 2017 to 7 January 2019 in the course of treating Patient E, the practitioner failed to recognise and respond appropriately to Patient E's drug seeking behaviour. 2. Between 7 June 2018 to 7 January 2019 in the course of treating Patient E the practitioner failed to make enquiries with Victoria Health to determine if Patient E was subject to a Schedule 8 permit before prescribing him schedule 8 drugs. Patient F 1. Between 24 November 2016 to 27 March 2019, in the course of treating Patient F, the practitioner failed to properly assess Patient F prior to prescribing him with the Schedule 8 Fentanyl by failing to: 1. take an appropriate history and perform an appropriate examination. 2. telephone and consult the Prescription Shopping Program. 3. telephone and consult with the Drug and Alcohol Specialist Advisory Service (DASAS). 4. ascertain from the medical records obtained from Matthew Talbot that Patient F was on an opioid replacement program and to take this into account this when prescribing. 1. Between 24 November 2016 to 27 Mach 2019, while treating Patient F, the practitioner failed to make timely referrals with references to the clinical use of opioids when prescribing the Schedule 8 drug Fentanyl to Patient F at the Gladesville practice. 2. Between 24 November 2016 to 27 March 2019, the practitioner's prescribing for Patient F of the Schedule 8 drug Fentanyl as set out in Annexure F: 1. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; 2. otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of Fentanyl prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner. 1. Between 24 November 2016 to 27 March 2019, the practitioner prescribed for Patient F the Schedule 8 drug Fentanyl as set out in Annexure F in circumstances which: 1. Fentanyl is a type C drug of addiction within the meaning of section 28(6) of the PTGA; 2. the practitioner should have known that Patient F was a drug seeking person; 3. the practitioner did not obtain the proper authority from the Secretary of NSW Health contrary to section 28(3) of the PTGA. 1. Between 24 November 2016 to 27 March 2019 in the course of treating Patient F, the practitioner failed to recognise and respond appropriately to Patient F's drug seeking behaviour.

[7]

Background

Dr Mehdi Khalighimonfared is a medical practitioner who was first registered to practise in New South Wales in 2008. He graduated from the Shahid Beheshti University of Medical Sciences in Iran in 2004 and worked as a general practitioner in Emergency Medicine in that country until 2007.
The practitioner migrated to Australia in 2007. He held appointments in hospitals in Queensland, South Australia, Tasmania and New South Wales between 2008 and 2016, when he entered the Australian College of Rural and Remote Medicine training program.
In 2017 the practitioner moved to Sydney and has since worked as a general practitioner. He has also undertaken part-time employment in the Emergency Department at Norwest Private Hospital.
From 2016 until the present time the practitioner has held employment at the following practices:

25 July 2016 to 8 December 2016 Griffith Medical Centre ("the Griffith practice")
5 February 2018 to 22 March 2018 Myhealth Zetland ("the Zetland practice")
23 March 2018 to 13 August 2018 GP on Ebley Medical Centre ("the Bondi practice")
August 2018 to 10 March 2020 NewHealth Medical Centre ("the Gladesville practice")
20 February 2020 to date Five Dock Medical Centre Since 4 November 2017 he has also held part-time employment in the Emergency Department at Norwest Private Hospital.

On 22 March 2018 the Pharmaceutical Regulatory Unit ("PRU") was advised of a complaint by a pharmacist in Griffith. This complaint was to the effect that the practitioner prescribed "significant quantities of Schedule 8 opioids". The pharmacist noted that the practitioner appeared to be unaware that he was required to handwrite the name and quantity of medications on a computer-generated Schedule 8 prescription.
An officer of the PRU conducted an investigation and prepared a report dated 16 August 2019. The PRU officer summarised his findings as follows; "As Dr Khalighimonfared has

prescribed drugs of addiction to persons he knew or ought to have known were drug dependent, without obtaining the required authority from the Ministry of Health
prescribed drugs of addiction and restricted substances on occasion not in accordance with the recognised therapeutic standard
and prescribed drugs of addiction without proper authority all of which are in contravention of the Poisons and Therapeutic Goods legislation Dr Khalighimonfared's prescribing was considered inappropriate and poses significant risks to his patients and the public."

The PRU officer recommended that his report be forwarded to the HCCC and the Medical Council. A decision was made by the Medical Council to convene a section 150 hearing to determine what, if any, action should be taken in relation to these concerns.
Following a hearing on 18 September 2019 the Medical Council made the following orders: "Pursuant to section 150(1)b of the National Law (New South Wales) the Council imposed the following conditions on Dr Mehdi Khalighimonfared's registration as of 19 September 2019; 1(a) Not possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (New South Wales). (b) To provide written evidence to the Medical Council of New South Wales that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an order being made under the Poisons and Therapeutic Goods Regulation 2008 to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug by 27 September 2019. (2)(a) Not to possess, supply, administer or prescribe any Schedule 4 drug listed in appendix D to the Poisons and Therapeutic Goods Regulation 2008 (New South Wales). (b) To provide written evidence to the Medical Council of New South Wales that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an order being made under the Poisons and Therapeutic Goods Act 1966 to prohibit him from possessing, supplying, administering or prescribing any Schedule 4 drug list in Appendix D by 27 September 2019. (3) To authorise and consent to any exchange of information between the Medical Council of New South Wales, Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions." The Medical Council referred the matter to the HCCC to be dealt with as a Complaint for investigation.

[8]

The Applicable Law

Section 139B(1) of the National Law prescribes, relevantly for present purposes: 1. Unsatisfactory professional conduct of a registered health practitioner includes each of the following: a) 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 conduction relating to the practice or purported practice of the practitioner's profession.
The National Law contains no definition of the term "improper and unethical" in the context of section 139B. We consider below the meaning which should be attributed to this term for present purposes, having regard to previous decisions of this Tribunal and the High Court of Australia.
Section 3 of the National Law sets out its objectives and guiding principles. This section provides relevantly as follows: 1. The object of this law is to establish a national regulation and accreditation scheme for (a) the regulation of health practitioners…. 2. The objectives of the National Registration and Accreditation Scheme are - (a) to provide for protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; 3. The guiding principles of that National Registration and Accreditation Scheme are as follows - …. c) restrictions of the practice of the health professional are to be imposed only if it is necessary to ensure health services are provide safely and are of an appropriate quality.
Section 3A provides - "Objective and Guiding Principles (New South Wales). "In the exercise of functions under a New South Wales provision, the protection of the health and safety of the public must be the paramount consideration".
The applicant HCCC bears the onus of proof on the balance of probabilities. Having regard to the seriousness of the matters in issue and the proposed order for suspension or cancellation of the registration of the respondent, however, we will apply the well-known standard adopted by the High Court of Australia in Briginshaw v Briginshaw (1938) CLR 336. This standard requires that we be 'comfortably satisfied, on the balance of probabilities', that the applicant has established the Complaints and the particulars thereof. Independently of the admissions made by the respondent, we will consider and determine each Complaint and particular in accordance with this standard.

[10]

Patient A

The practitioner first saw this patient on 26 October 2017 at the Griffith practice, when her usual doctor was on leave. She informed the practitioner that she had been assaulted by Taliban in Afghanistan while in her early twenties and suffered fractures to her skull, neck and back. At this first consultation, he provided a prescription for Oxycontin.
At the second consultation on 8 November 2107 Patient A told the practitioner that she has used two fentanyl patches prescribed for her husband. She requested a prescription for fentanyl, which the practitioner refused after advising her that she must first stop using Oxycontin. The practitioner strongly advised Patient A against using her husband's fentanyl patches in future.
The practitioner next saw Patient A on 22 January 2019 at the Gladesville practice. She informed the practitioner that she was taking Oxycontin and tramadol. She said that she had ceased taking tramadol, due to gastric problems, and that she had again used her husband's fentanyl patches. The practitioner prescribed 75mcg/hr fentanyl patches (being her husband's medication), although he preferred a dosage of 25mcg/hr.
During this consultation the practitioner again advised Patient A against using her husband's medication and recommended that she see a pain specialist. He gave her a prescription for Oxycontin.
On 6 February 2019 the practitioner compiled a management plan for Patient A and referred her to a pain specialist. He helped patient A to complete a 16-page questionnaire, as she was illiterate in both her native Farsi and English. The practitioner telephoned the pain clinic several times, before Patient A ultimately was seen for the first time on 8 August 2019.
When the practitioner contacted the Doctor Shopping Hotline on 15 April 2019, Patient A was not identified as a drug seeker. On 3 July 2019 the practitioner told Patient A that he would provide no further prescriptions for Schedule 8 drugs until she had been reviewed by the pain specialist. He arranged for a scan of her lumbar spine.
On 6 August 2019 the practitioner offered Panadeine Forte, when Patient A requested a repeat prescription for Oxycontin. She was dissatisfied with this suggestion and the practitioner referred her to a pain psychologist.
The practitioner began to reduce the medication for Patient A on 19 August 2019, after he received a management plan from the pain clinic. Again, the practitioner referred Patient A to a pain psychologist.
On 12 September 2019 the practitioner applied for an authority for opioid prescriptions for Patient A. The pain clinic management plan provided that Patient A be weaned off medication over a period of six months. On 13 September 2019 Patient A told the practitioner that she had not had her prescriptions filled while she was out of Sydney. The practitioner told Patient A that he would provide her one week's supply, pending receipt of the opioid authority. He arranged an appointment with the pain clinic on 26 September 2019.
The practitioner informed Patient A on 20 September 2019 that he could no longer prescribe Schedules 8 and 4D medications. He made a further referral to the pain clinic for patient A.
In his statement the practitioner indicated that he considered urinary drug screening for Patient A. She was not covered by Medicare for this procedure and she informed him that she could not meet the cost privately. He indicated also that he considered the addition of selective serotonin re-uptake inhibitors ('SSRI') to her medication regime to be a high risk strategy, as he was attempting to wean her off opioid drugs and she had been referred to a pain clinic.
In his oral evidence, the practitioner described the difficulties which he encountered in interacting with Patient A. He said that "she was more difficult to communicate with due to her culture, for example, no eye contact, she talks to her husband and he talks, consultations with her take twice as long…' He referred also to his treatment of Patient A being "a bit more complicated…with PTSD and depression".

[12]

Patient C

The practitioner saw Patient C at the Griffith practice for the first time on 11 January 2017, when his usual doctor was unavailable. Patient C suffered from chronic lower back pain and had been using Schedules 8 and 4D medication for approximately one year. The practitioner arranged for a scan of Patient C's lumbar spine and referred him to a psychiatrist for pain management. While in Griffith, the practitioner had telephoned the Prescription Shopping Hotline and received no notifications in relation to Patient C.
On 23 March 2018 the practitioner saw Patient C at the Bondi practice. Patient C requested a repeat prescription for tramadol, which was refused by the practitioner. In his statement the practitioner said that he had been informed that morning, in a call from the PRU, that Patient C was a drug seeker.
It should be noted that there was some confusion in the evidence as to whether the PRU telephone notification to the practitioner of drug seeking behaviour related to Patient C or Patient D. In our view, there is no need to pursue or determine this issue for present purposes. The practitioner gave evidence at the section 150 hearing without the benefit of medical notes. Nothing suggested to us that the practitioner had attempted to be evasive or otherwise less than honest in his evidence at the section 150 hearing or in the present proceedings.
Patient C saw the practitioner at the Gladesville practice on 30 October 2018. Patient C provided a letter from his doctor in Griffith which stated that his fentanyl patches had been stopped and that he was using tramadol. The practitioner indicated in his statement that medical records from the Griffith practice stated that patient C should not be prescribed Schedule 8 drugs but he thought, mistakenly, that this reference was to Tagin only.
On 5 November 2018 Patient C asked the practitioner for a fentanyl patch rather than tramadol. The practitioner referred him to a pain specialist and informed him that he would prescribe no more fentanyl patches. On 21 November 2018 the practitioner referred patient C to a psychiatrist.
On 5 December 2018 Patient C advised the practitioner that his prescriptions had been destroyed when his car was damaged in a fire. The practitioner prescribed fentanyl patches and advised him to find a new doctor. In January 2019 the practitioner advised patient C to obtain all of his medications from one doctor.
When Patient C saw the practitioner on 12 February 2019, he stated that he had made no appointment with a pain specialist. On 21 February 2019 Patient C told the practitioner that he had an appointment with a pain specialist on 1 June 2019 and asked for a repeat prescription. The practitioner confirmed during the next consultation that he would not continue to prescribe fentanyl or tramadol unless Patient C first saw a pain specialist.
The practitioner saw Patient C for the last time on 26 April 2019, when he advised that he could no longer prescribe for him. The practitioner offered the services of a rehabilitation or detoxification unit and suggested that Patient C attend an emergency department. On 5 April 2019 the practitioner notified the Chief Pharmacists Unit that he had been told that Patient C sold his fentanyl patches and "abused" tramadol. The practitioner indicated in his statement that Patient C was not covered by Medicare for urinary drug screening and that he told him that he could not meet the cost privately.

[13]

Patient D

The practitioner first saw Patient D on 19 August 2019 at the Griffith practice. He suffered from chronic pain, depression and anxiety and had been prescribed Fentanyl patches. The practitioner referred Patient D to a psychiatrist and for an endoscopy.
On 31 August 2016 Patient D told the practitioner that he had not made an appointment with the psychiatrist. He requested another fentanyl prescription as "his patch had fallen off in the bath". He repeated this account of his patch falling off in the bath on 12 September 2019. On 21 October 2016 Patient D requested additional prescriptions, on the basis that he had lost his wallet and medications.
The practitioner acted as a translator for Patient D at a psychiatric consultation on 5 December 2016. Patient D had informed the practitioner on 1 November 2016 that he missed his appointment with the psychiatrist that morning. The practitioner was informed by pain clinic staff on 6 February 2017 that as Patient D had missed his psychiatric appointment he would not be provided with any further service.
On 16 June 2017 Patient D told the practitioner that he intended to travel to Queensland and requested his fentanyl patch in advance of this trip. The practitioner referred Patient D to a psychologist on 1 August 2017 and an appointment was arranged on 18 August 2017. Patient D failed to attend and the appointment was rescheduled for the following week.
Patient D told the practitioner of 24 August 2017 that he 'had lost his prescriptions and had no money'. The practitioner referred him to an online outreach program. On 4 October 2017 the practitioner referred Patient D to a psychologist through a mental health plan.
In subsequent consultations Patient D repeated his account of fentanyl patches falling off on several occasions. He stated also that his roommate had stolen his patches for use by his (the roommate's) overseas relatives. The practitioner warned Patient D against the risk of overuse of these patches.
On 8 December 2017 the practitioner provided five repeat prescriptions for fentanyl patches, with instructions to the pharmacist to fill these prescriptions only every two weeks. The practitioner said in his statement that he attended these arrangements continue only until Patient D found a new doctor, as he was about to leave Griffith permanently.
In his statement, the practitioner indicated that Patients C and D were close friends who sometimes presented together for appointments. Patient D told the practitioner that his prescription was destroyed when Patient C's car caught fire on 5 December 2018. The practitioner checked with the pharmacist and found that he had not fulfilled the prescription.
The practitioner refused to prescribe fentanyl for Patient D on 22 August 2019 and 10 September 2019. He referred Patient D to a pain clinic on 27 August 2019 and for an MRI scan of his cervical spine on 10 September 2019. On the latter date Patient D informed the practitioner that he was purchasing fentanyl on the "black market".

[16]

Findings and Conclusions

The practitioner gave unchallenged evidence that this Complaint has prompted him to take action to enhance his knowledge base and improve his prescribing practices. He has undertaken numerous education modules in relation to pain management and use of opioid medications. He gave unchallenged evidence that he has been successful in treatment of patients with acute or chronic pain, without recourse to Schedule 4D and/or Schedule 8 drugs since restrictions were imposed upon his practice in 2019. He gave unchallenged evidence that he continues to read extensively on the subject of pain management and prescribing practices.
The practitioner gave unchallenged evidence that he has completed a course with the Skin Cancer College of Australasia. He indicated that he currently devotes 20 per cent to 40 per cent of his time to the care of patients with skin cancer issues.
The practitioner gave unchallenged evidence that his reading has prompted him to develop a research proposal, with the tentative topic of "Exploring the understandings and challenges of managing chronic non-cancer pain in primary care settings". He described the object of this proposed research as follows: "this study will aim to explore the Australian general practitioners' understanding of chronic non-cancer pain and identify the issues in managing CNCP in primary care settings. The findings may be useful in order to broaden understanding of practice of those challenges and identify gaps in current management, therefore contributing to the enhancement of patient safety and outcomes more broadly."
In our view, the practitioner fully accepted responsibility for his poor prescribing and pain management practices. During cross-examination he said, for example: "It was not adequate for me to rely on what my supervisor had done previously. It was my responsibility. They were my patients and I let them down." and "They could have died or had nausea and vomiting. I did not explore all of the red flags that they had before I started them on opiates. I feel terrible about it now. I did not display adequate insight into these patients." In our assessment, the practitioner presented as an honest witness who proffered sincere regrets and apologies for the obvious deficiencies in his treatment of these patients.
As noted, we had the assistance of an expert report and oral evidence from Dr Gary Deed. His conclusions were as follows: "Dr Khalighimonfared's conduct .fell below the standard reasonably expected of a practitioner of her (SIC level of training or experience .the conduct that did fall below the standard was 'significantly below' the standard or otherwise .the conduct, that was a significant departure from the standard and invites 'my criticism'." In light of the admissions made by the practitioner, it seems to us to be unnecessary that these reasons recount in detail the expert evidence of Dr Deed.
As noted above it was common ground, following the admissions made by the practitioner, that two issues only remained for our determination. We will now consider and determine these two issues. 1. "Is the practitioner guilty of unsatisfactory professional conduct, in that he engaged in improper or unethical conduct relating to the practice or purported practice of medicine?"
In HCCC v Boulton [2021] NSWCATOD 160 the Tribunal noted that the National Law contains no definition of the terms "unethical" and "improper". The Tribunal referred to the Macquarie Dictionary definition of "improper" as "not in accordance with propriety of behaviour, manners et cetera" or "abnormal or irregular" and "of 'unethical'" as "1. Contrary to moral precepts; immoral" and "2. In contravention of some code of professional conduct." The Tribunal in HCCC v Boulton referred also to the decision of the High Court of Australia in R. v Byrnes & Hopwood [1995] HCA 1.
In HCCC v Nguyen [2018] NSWCATOD 168 the Tribunal considered the application of the term "improper conduct" in section 139B(1)(l) and stated "the High Court has noted that 'improper' is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514 where Brennan, Deane, Toohey and Gaudron JJ said: "impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of ethical conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position or circumstances of the case."
In HCCC v Boulton the Tribunal found that the practitioner had engaged in unethical and improper conduct in that he failed to advise AHPRA, in his registration and renewal applications, of criminal offence and convictions. The Tribunal observed that "it is essential for the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities."
In these proceedings, the practitioner and his legal advisors made repeated reference to his 'knowledge gap'. He explained that he had received no training in Iran in relation to opioid dependency and suggested that he "lacked the experience necessary to look after these patients". Nonetheless, he stated unequivocally that "it was my responsibility to address my knowledge gap". The fact remains, however, that the practitioner's 'knowledge gap' subsisted for several years.
As noted above, we assessed that the practitioner presented as genuinely remorseful for his failings in treatment of the patients and sincere in his stated wish to improve his knowledge and standards of practice. It was our impression that he is strongly committed to the practice of medicine and has a genuine wish to provide proper care and assistance to his patients. We assess that the complaint process has been a significant learning experience for him and are satisfied that he has taken many of the steps necessary to rectify his professional deficiencies.
In evidence were five references for the practitioner from fellow medical practitioners. Three of these referees currently work with him at the Five Dock practice or Norwest Private Hospital. A fifth referee trained with the practitioner in Iran and has observed his work at the Five Dock practice.
These referees all proffered very positive opinions of the practitioner's interaction with his patients and his methods of practice. Dr Adel Atallah has worked with the practitioner at the Five Dock practice for approximately two years. He offered these opinions: "Throughout my interactions with Mehdi, I was consistently impressed by his work ethic, knowledge and commitment to his patients. He is very hardworking and very conscious about his duties and responsibilities. He takes good care of his patients and understands their emotion and is sympathetic to them. He possesses excellent clinical skills and always suggests effective medications for patients."
Another colleague at the Five Dock practice, Dr Richard Sanders, opined as follows: "I have known Dr Khalighimonfared since that time, and have found him to be unfailingly courteous and professional. I have referred many patients to him for treatment of skin lesions over this time with no problems about their care. I have worked closely with him since he joined the practice."
Dr Emma Wakeling, another colleague at the Five Dock practice, expressed these views: "I have known Dr Khalighimonfared since he started work as a contracted GP at Five Dock Medical Centre since 2006. During this time, we have interacted in a professional capacity and I have always found him to be respectful and professional in his conduct. He has displayed a caring nature when dealing with patients. He informed me this week of the HCCC complaint against him and I have read through the document. He expressed genuine remorse at his conduct and indicated that he had undergone significant professional learning in the areas he was deemed to have erred."
Dr Puminda Amaratunga is an emergency medicine specialist at Norwest Private Hospital. Dr Amaratunga offered these opinions: "I hold Dr Mehdi to the utmost professional standard. I see him interact with patients in a friendly and courteous manner, going out of his way to amplify patient care. He is always genuine in his approach to patient's and his appropriate management of a wide array of emergency presentations shows that he is more than capable in this field of practise. I have never known him to have acted in an unprofessional manner or in a manner that could jeopardise patient management or care. From a personal point of view, I see Dr Mehdi as a kind, compassionate human being who is honest, genuine, and truly cares about his patient's as well as other staff members. He always holds himself and his colleagues to the highest of moral standards."
Dr Shiza Nahide trained with the practitioner in Iran and has attended the Five Dock practice as a clinical observer. Dr Nahide opined, inter alia: "I find Dr Khalighimonfared a knowledgeable, diligent, and compassionate doctor who takes the safety of his patients very seriously. He takes the broader context of a patient's life into account whenever he makes a clinical management plan. As far as my observations concerned, he keeps himself updated with current clinical guidelines, and employs the existing body of evidence in his day-to-day practice. His solid knowledge foundations of the Pharmaceutical Benefits Scheme (PBS) prescriptions and the relevant standards and guidelines is commendable. The professional manner he shows in the clinical setting reflects his clinical competence and his advanced interpersonal skills. I have observed him communicating with his patients in a precise, effective and efficient way, trying to address patient's various concerns and inquiries. In terms of the personal characteristics, I find Dr Khalighimonfared a determined person who demonstrates integrity and adherence to his moral codes. I can describe him as a pro-active learner who keeps on challenging himself for improvement and better performance."
There is no doubt that the conduct of the practitioner, in relation to his treatment of the six patients, was significantly lacking and, by his own admission, sufficient to constitute unsatisfactory professional conduct and professional misconduct. We do not consider, however, that his conduct could properly be found to be 'improper or unethical relating to the practice or purposed practice of medicine'. In our view, his deficiencies in knowledge and practice do not include any element of 'unethical or improper conduct' for the purposes of section 139B. He lacked relevant knowledge and experience and acted in a manner which did not meet the best interests of his patients but, in our assessment, there was no 'unethical or improper element' to his conduct.
Accordingly, we find that the practitioner is not guilty of unsatisfactory professional conduct by any other improper or unethical conduct relating to the practice or purported practice of [his] profession. Otherwise, we find that the practitioner is guilty of unsatisfactory professional conduct in terms of the Particulars set out in the Amended Complaint. We find further that the practitioner is guilty of professional misconduct in terms of the Particulars set out in the Amended Complaint.

[17]

What Orders Should Be Made By Way of Sanction?

In Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA said: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
In Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31, Wright J said: "(1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration s.3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637 (3) The public interests served by protective orders include, indirectly, the stand of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83]."
On 5 April 2022 counsel for the HCCC submitted the following proposed orders: "Please see below, the HCCC's position regarding conditions in the alternative, should the Tribunal not be minded to order cancellation as sought:
The Registration of the Respondent is suspended until XXX (2 years from the date of the decision);
On the expiration of the practitioner's suspension the following conditions are imposed on the practitioner's registration: a. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. b. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 other registered medical practitioners (excluding the subject practitioner) and: i. Where the patients and patient records are shared between the medical practitioners. ii. Where there is always one other registered medical practitioner on site. c. Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). d. Not to possess, supply, administer or prescribe any Schedule 4 drug listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW). e. To practise under Category B supervision in accordance with the Council's Compliance Policy-Supervision (as varied from time to time) and as subsequently determined by the appropriate reviewing body: i. At each supervision meeting the practitioner is to submit to a review and discussions of his practice with his approved supervisor with particular focus on: a. Appropriate prescribing practices; b. Compliance with legislative requirements; c. Medical record keeping and documentation d. Patient management, follow up and clinical outcomes. ii. At each supervision meeting the Council-approved supervisor is to randomly select 5 patient records from the preceding fortnight for review and discussion. a. The details, feedback and discussion are to be recorded and included in supervision reports. iii. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of all conditions on the practitioner's registration and any decision or report as determined by the Council. f. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: i. The audit is to held within six (6) months from the date of the practitioner's recommencement of medical practise and subsequently required by the Council. ii. The auditor is to assess the practitioner's compliance with good medical record keeping standards, legislative requirements and compliance with conditions. iii. To authorise the auditor(s) to provide the Council with a report on their findings. Iv. To meet all costs associated with the audit(s) and any subsequent reports. g. To authorise and consent to any exchange of information between the Medical Council of NSW, Medicare Australia and Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions.
The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).
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."
Counsel for the practitioner submitted that there is no necessity for cancellation or suspension of his registration, as there exists no risk to the protection of the health and safety of the public. It was submitted that restrictions on his prescribing rights and mentoring of the practitioner would be a sufficient and appropriate outcome to the proceedings, in terms of protection of the health and safety of the public.
Counsel for the practitioner accepted that deterrence of other practitioners is a relevant consideration. She submitted that, however, a finding of professional misconduct would achieve that purpose. As such a finding is a matter of great significance, we accept this submission.
Counsel for the practitioner submitted that Category C, rather than Category B, supervision would provide sufficient protection for the health and safety of the public. Essentially, it was submitted that indirect supervision would suffice as the practitioner works in a group practice. We note that three doctors in the Five Dock practice provided the practitioner with very favourable references, with full knowledge of the complaint and its surrounding circumstances. For these reasons, we agree that Category C supervision is adequate for the protection of the health and safety of the public.
Counsel for the practitioner indicated that he consented to orders in terms of paragraphs (2)(e)(i) and (ii) of the Minute. We accept the submission that an order in terms of paragraph (2)(e)(iii) is unnecessary, as there was no complaint as to the practitioner's keeping of medical records.
We accept the submission on behalf of the practitioner to the effect that there is no necessity for suspension or cancellation of his registration. We accept that he has learned a serious lesson from the Complaint proceedings, which have culminated in a finding that he is guilty of professional misconduct. We accept that he is genuinely remorseful for his conduct and that he has been proactive in taking steps to remedy his 'knowledge gap' and to improve his practice methods and standards in a general sense.
Additionally the references submitted make it clear that the practitioner now works in a supportive collegiate environment where he has ongoing peer support. These observations apply both to his work at the Five Dock practice and Norwest Private Hospital.
At the conclusion of the hearing, neither party put any submission as to costs. Accordingly, there will be directions for filing and service of written submissions on the issue of costs, following which a determination will be made on the papers.

Health Care Complaints Commission v Khalighimonfared

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (10)

Cited By (5)