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[2022] NSWCATOD 78
NCAT Occupational
2022-04-05
Dr J
Original judgment source is linked above.
Introduction
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.
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.
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.
Complaint Two (32) The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or 2. 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 of Complaint Two The particulars of Complaint One are repeated and relied upon individually and cumulatively.
Background
The Applicable Law
The Evidence
Patient A
Patient B
Patient C
Patient D
Patient E
Patient F
Findings and Conclusions
What Orders Should Be Made By Way of Sanction?
Orders 1. The complaint of unsatisfactory professional conduct is established. 2. The complaint of professional misconduct is established. 3. Pursuant to section 149A(1) of the Health Practitioner Regulation National Law (NSW), the practitioner is reprimanded. 4. The following conditions are imposed on the registration of the practitioner: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. To practice only in a group practice approved by the Medical Council of NSW where there are at least two other registered medical practitioners. 3. Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW). 4. To practice under Category C supervision in accordance with the Compliance Policy of the Medical Council of NSW. 1. It is directed that the name and address of the witnesses listed in the Schedule to the Complaint not be disclosed under Clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) to any person other than the parties to the proceedings. 2. 1. The applicant is directed to file and serve written submissions as to costs within 7 days 2. The respondent is directed to file and serve written submissions as to costs within a further period of 7 days 3. The applicant may file and serve written Submissions in reply within 7 days thereafter. 1. The Medical Council of New South Wales is the appropriate review body to review the conditions imposed on the practitioner 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. 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 11 July 2022 - Order 7 added. Paragraph 16 amended to correct s 139B (1) (e) to s 139B (1) (l). 01 December 2022 - Order 8 added. Order 4 amended to include part (e) Order 4 (d) amended to include part (i) & (ii) 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: 01 December 2022
Health Care Complaints Commission
Khalighimonfared
Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) CLR 336 HCCC v Boulton [2021] NSWCATOD 160 HCCC v Nguyen [2018] NSWCATOD 168 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 R v Byrnes & Hopwood [1995] HCA 1; (1995) 183 CLR 501 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mehdi Khalighimonfared (Respondent) Representation: Counsel: M McCarthy (Applicant) R Rodger (Respondent)
(1995) 183 CLR 501
(1997) 41 NSWLR 630
(2009) 74 NSWLR 523