Health Care Complaints Commission v Knowles

Solicitors: Health Care Complaints Commission (Applicant) Avant Law Pty Ltd (Respondent) File Number(s): 2018/00246475; 2019/00269860 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting the publication of the names of the patients referred to in the complaints and any other patient identified in the evidentiary material.

Background

1. The Health Care Complaints Commission (HCCC) is the applicant in two complaints filed in the New South Wales Civil and Administrative Tribunal, Occupational Division against Phillip James Knowles (Dr Knowles) the respondent. Both cases were heard together in the same hearing block. Both cases deal with complaints made against Dr Knowles when he was practising in a central NSW town. He left that city in 2019 and commenced to practise as part of a group medical practice on the North Coast of NSW.
2. The first Complaint filed in the Tribunal by the HCCC was filed on 9 August 2018. That Complaint was ascribed suit number 2018/00246475. The second complaint was filed on 29 August 2019 and was ascribed number 2019/00269860. In order to avoid confusion, we propose to address complaint number 2018/00246475 first.
3. The complaint is found in exhibit XA2 in the amended complaint document dated 28 February 2020. The complaint is as follows: Complaint One Dr Knowles "is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/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 medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or (ii) Engaged in improper and/or unethical conduct relating to the practice or purported practice of medicine." Complaint Two Dr Knowles "is guilty of professional misconduct under section 139E(b) of the National Law in that the practitioner has: (i) 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."

The Law

1. We here set out part of submissions provided by the HCCC in this proceeding, which we adopt here, as a non-contentious statement of relevant principle.

Governing Principles

1. The Tribunal's jurisdiction is primarily protective in nature, rather than punitive. [1] In exercising its protective jurisdiction, the Tribunal must have consideration for the maintenance of the standards of the medical profession, preservation of public confidence in the profession and, more broadly, the protection of the community. [2] Significantly, the Tribunal, as set out in Re Dr Parajuli [2010] NSWMT 3 at [31], considers the protection of public safety and health as paramount, now affirmed by s 3A of the Health Practitioner Regulation National Law (NSW) (the National Law).
2. The public protection is achieved by 'ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner' are registered. [3]
3. This obligation is in addition to, and does not limit, the provisions of section 36(5) of the Civil and Administrative Tribunal Act 2013 (NSW) [4] (the CAT Act). In exercising its jurisdiction, the Tribunal is to give primacy to the provisions of the National Law. [5] While s 3A and the aforementioned authorities establish protection of public safety as the chief concern, additional considerations including deterring others from engaging in similar conduct are a necessary part of maintaining the standards of the medical profession and thereby ensuring the continuance of public safety and faith in the profession. [6]
4. Indeed, Basten JA, clarifying the intersection of the aforementioned principles, in NSW Bar Association v Meakes [2006] NSWCA 340 at [114], set out the important, but indirect, effects of a disciplinary order, which must be considered when determining the appropriateness of protective orders: 1. That it reminds other members of the profession of the public interest in the maintenance of high professional standards; 2. That the order may emphasise the unacceptability of the particular conduct involved in the disciplinary offence; and 3. The need for the order to maintain public confidence in the high standards of the medical profession.
5. While the purpose of the Tribunal's orders is not punitive, an unavoidable concomitant is the protective orders may, in some circumstances, possess an incidentally punitive character, but this should not be the purpose of the orders so made. [7]

Legislative Framework

1. Part 8 of the National Law deals with complaints concerning health practitioners.
2. Specifically, s 144 outlines the possible grounds of complaint against a health practitioner. They include: (a) 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. (b) A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. … (e) A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.
3. As referred to above, 'unsatisfactory professional conduct' is defined in s 139B of the National Law to mean conduct that: (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 conduct relating to the practice or purported practice of the practitioner's profession.
4. Conduct relates to either an act or omission, according to s 139 of the National Law.
5. Section 139E of the National Law defines 'professional misconduct' as either: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

Unsatisfactory Professional Conduct

1. Complaint One alleges 'unsatisfactory professional conduct' within the meaning of s 139B of the National Law.
2. Complaint Two alleges 'professional misconduct' by the Respondent pursuant to s 139E of the National Law.
3. Section 139E makes it clear that the conduct alleged in the various particulars of Complaint Two can be accumulated and considered in their totality to reach a finding of professional misconduct. [8]
4. In making findings as to unsatisfactory professional conduct and professional misconduct the Tribunal may take into account the Practitioner's admission and the expert's evidence, and the professional members are entitled to apply their own specialist expertise in forming opinions about whether there has been a departure from the relevant standard of conduct. [9]

Section 139B(1)(a): 'conduct below the standard expected of an equivalent practitioner'

1. Determining whether a practitioner is guilty of unsatisfactory professional conduct, as considered in s 139B(1)(a) of the National Law, involves an objective assessment of the practitioner's conduct against the standards of conduct expected of an equivalent practitioner. As held in Ahmad, Dr Firoz Uddin [2013] NSWMPSC 8 at [171]: '[I]n assessing what constitutes unsatisfactory professional conduct reference is made to the views of professional brethren of good repute and competency.'
2. With respect to unsatisfactory professional conduct pursuant to s 139B(1)(a) of the National Law the Tribunal applies the general principle that 'the use of the term "significant" may in law be taken to mean not trivial, of importance or substantial.' [10]
3. That test may be satisfied by a single act or omission or by a pattern of conduct that demonstrates the Practitioner's lack of skill, judgement or care.

Section 139B(1)(l): 'improper' and 'unethical'

1. Complaint One refers to unsatisfactory professional conduct in relation to 'improper' and/or 'unethical conduct', as referenced in s 139B(1)(l) of the National Law. This requires an examination of the meaning of these words, which are not defined in the National Law. Assistance in determining what is meant by 'improper' can be gained from what the High Court of Australia said of the word 'impropriety' in R v Byrne (1995) 193 CLR 501 at 514-515. [11] If the Respondent's conduct, as found by the Tribunal, was not in conformity with standards of professional conduct and practice it would be appropriately deemed improper. [12]
2. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190 the Tribunal held at [30]-[31]: The words "improper" and "unethical" are not defined in the National Law but have been considered in a number of Tribunal decisions. The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession".
3. The words, 'unethical conduct', bear no special or technical meaning but are to be understood in their ordinary meaning. Although the determination of the ordinary meaning of a word has traditionally been identified as a question of fact, there is no clear distinction between determining the ordinary meaning of a word and the construction of a term whose meaning is established. The construction of a statutory provision will usually involve a consideration of words in their context and the adoption of a construction that promotes the purpose underlying the statute, which usually involves a question of law. Unethical conduct is arguably a more serious matter than improper conduct. Unethical is defined in the Macquarie Dictionary as meaning both, immoral or contrary to moral precepts and secondly, as relating to a contravention of a professional code of conduct. [13] In this instance, the Complainant relies upon this meaning on these bases.
4. The words improper and unethical were considered by this Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2016] NSWCATOD 21. Dr Renwick, after quoting from R v Byrne (1995) 193 CLR 501, noted: Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. In Dallas Buyers Club LLC v iiNet Limited (No 3) [2015] FCA 422 at [5], Perram J said, aptly for present purposes: The difficulty in locating where a line is to be drawn is a well-known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on. In my opinion the conduct I have found and which the Respondent has not contested clearly falls on the wrong side of the line. It reduces public confidence in the institution of local government. It amounts to improper and unethical.
5. The above test was adopted in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [56].
6. With respect to unsatisfactory professional conduct pursuant to s 139B(1)(l), in Health Care Complaints Commission v Little [2016] NSWCATOD 146 the Tribunal also found that conduct can simultaneously be unsatisfactory professional conduct pursuant to s 139B(1)(a) and s 139B(1)(l) (at [57]-[61]).
7. Conduct not in conformity with professional standards is improper conduct. [14] Unethical conduct is asserted to refer to both immoral conduct and conduct contravening a Professional Code of Conduct.

Complaint Number 2018/00246475

1. At the commencement of the hearing the parties provided the following agreed facts. NCAT case number: 2018/00246475 Complaint against Dr Phillip James Knowles statement of agreed facts As At 28 February 2020 The respondent 1. Dr Phillip James Knowles ("the practitioner") obtained a Bachelor of Medicine/Bachelor of Surgery in 1971. 2. The practitioner was first registered as a medical practitioner on 29 December 1971. 3. The practitioner was admitted as a Fellow of the Royal Australian College of General Practitioners in 1989. 4. Between 2003 and 2011, the practitioner worked as a General Practitioner at two medical centres in [a large regional city in NSW]. 5. Between 2011 and 2013, the practitioner worked as a General Practitioner at [Medical Practice A] in [the NSW regional city]. 6. From May 2013 till March 2018, the practitioner worked as a General Practitioner at [Medical Practice B] in [the NSW regional city]. Patient A 7. In about March 2013, the practitioner employed Patient A … at his medical practice [Medical Practice A]. 8. In about May 2013, the practitioner employed Patient A [in a different role] at his medical practice [Medical Practice B]. 9. In about June 2015, the practitioner terminated Patient A's employment. Patient B 10. In about 2011-2013, the practitioner was a regular customer at Patient B's restaurant. 11. In about 2011-2013, the practitioner administered Botox treatments to Patient B. 12. In about 2011-2013, the practitioner accepted payment from Patient B for her Botox treatments including by way of meals at her restaurant. Complaint One 13. On about 29 June 2011, (Complaint One, particular 1) the practitioner prepared a "Better Access Mental Health Care Plan" dated 29 June 2011 for Patient B. 14. The practitioner prepared the mental health care plan on a date unknown to the Applicant but presumed by the Applicant to be on or about 29 June 2011, in the absence of Patient B. 15. On about 29 June 2012, (Complaint One, particular 2) the practitioner made a claim for a Medicare rebate for Patient A by billing Medicare item number 2717 (preparation of a GP Mental Health Treatment Plan by a medical practitioner). 16. The practitioner did not write any consultation notes regarding the alleged consultation with Patient A on 28 June 2012. 17. On about 28 June 2012, (Complaint One, particular 3) the practitioner prepared a "GP Mental Health Care Plan" dated 28 June 2012 for Patient A. 18. The practitioner prepared the mental health care plan on a date unknown to the Applicant but presumed by the Applicant to be on or about 28 June 2012, based on the date shown on the document, in the absence of Patient A. 19. On 19 April 2013, (Complaint One, particular 4) the practitioner made a claim for a Medicare rebate for Patient A by billing Medicare item number 721 (attendance by a medical practitioner for the preparation of a GP Management Plan for a chronic or terminal medical condition) and billing Medicare item number 723 (attendance by a medical practitioner to coordinate the development of Team Care Arrangements with at least three healthcare providers for a chronic or terminal medical condition) for services which were not provided during a consultation with Patient A at [ Medical Practice A] on 19 April 2013. 20. Patient A attended a consultation with the practitioner on 19 April 2013 for and received a "Fluvax" injection as she was travelling overseas under Medicare item number 23 (consultation at consulting rooms - level 'B') 21. Patient A did not seek a GP management plan from the practitioner on 19 April 2013 nor was it clinically indicated. 22. Patient A did not seek care from at least three healthcare providers for a chronic or terminal medical condition on 19 April 2013 nor was it clinically indicated. 23. Medicare item numbers 721 and 723 attract a higher fee than Medicare item 23. 24. On 3 September 2013, (Complaint One, particular 5) the practitioner made a claim for a Medicare rebate for Patient B by billing Medicare item number 23 (consultation at consulting rooms - level 'B'). 25. The practitioner did not write any consultation notes regarding the alleged consultation with Patient B on 3 September 2013. 26. On about 26 March 2014, (Complaint One, particular 6) the practitioner made a claim for a Medicare rebate for Patient B by billing Medicare item number 44 (consultation at consulting rooms - level 'D'). 27. The practitioner did not write any consultation notes regarding the alleged consultation with Patient B on 25 March 2014. 28. On about 1 October 2014, (Complaint One, particular 7) the practitioner made a claim for a Medicare rebate for Patient B by billing Medicare item number 721 (attendance by a medical practitioner for the preparation of a GP Management Plan for a chronic or terminal medical condition), Medicare item number 723 (attendance by a medical practitioner to coordinate the development of Team Care Arrangements with at least three healthcare providers for a chronic or terminal medical condition) and Medicare item number 2713 (GP Mental Health Treatment Consultation). 29. The practitioner did not write any consultation notes regarding the alleged consultation with Patient B on 1 October 2014. 30. On about 1 October 2014, (Complaint One, particular 8) the practitioner prepared a "GP Management Plan and Team Care Arrangement" dated 1 October 2014 for Patient B. 31. On about 18 February 2015, (Complaint One, particular 9) the practitioner made a claim for a Medicare rebate for Patient B by billing Medicare item number 44 (consultation at consulting rooms - level 'D'). 32. The practitioner did not write any consultation notes regarding the alleged consultation with Patient B on 17 February 2015.
2. The hearing commenced with the HCCC seeking to rely upon an amended Complaint document dated 28 February 2020. No objection was taken to that amendment and the Tribunal granted the applicant leave to rely upon the amended Complaint.
3. In support of its case the HCCC relied upon the following documents which were admitted to evidence without objection:

• Bundle of documents filed by the HCCC on 14 February 2019 (exhibit XA1).
• A Joint statement of Agreed Facts (exhibit Y1)
• Amended Complaint (exhibit XA2)
• Copy letter from the Medical Council of NSW to Dr Knowles dated 24 April 2019 (exhibit XA3)

1. Dr Knowles relied upon documents marked as exhibit XR1. These documents included an Amended Reply to the Complaint filed by the HCCC together with a statement signed by Dr Knowles. The HCCC informed the Tribunal it would be submitting the Tribunal give no weight to paragraphs 12, 16, 35(b) and 35(j) of that statement document. The paragraphs contained hearsay evidence.
2. During the hearing, the evidence suggested, that a former employee of Dr Knowles (Employee A) had discussed with Patient A, a fact which was contentious in this hearing and that former employee was not proposed by the HCCC to be called as a witness if the hearing proceeded on the date allocated. A resolution to this problem was achieved by the following joint statement read onto the record: "The HCCC will not call [Employee A], or provide a written statement by her, to give evidence in the case, and the respondent will not submit that any adverse inference should be drawn as a result of same."
3. Pursuant to directions made following the hearing in this matter and on 5 March 2020, the HCCC provided a minute of the protective order it seeks the Tribunal impose in the event that the Tribunal finds the complaint established. In summary, the HCCC seeks cancellation of Dr Knowles' registration with a period of 12 months to elapse before he can re-apply for registration. A cost order is also sought.
4. Dr Knowles also provided a minute of the Protective Order he submitted would be appropriate, should the applicant's case be established. In summary, the protective order sought is that Dr Knowles be reprimanded and that conditions be imposed as detailed in the document provided.
5. The Amended Complaint, filed 28 February 2020 seeks a finding for "Complaint One" that the respondent is guilty of unsatisfactory professional conduct under section 139B(a) and/or (l) of the National Law. It is alleged the respondent has practised below the standard reasonably expected and that he engaged in improper or unethical conduct in his practice of medicine.
6. Particular 1, supporting the Complaint One, provides details of medical services provided by the respondent to Patient B where it is alleged, she did not seek those services. The relevant date is 29 June 2011.
7. Particular 2, alleges the respondent made a false claim on 29 June 2012 for a Medicare rebate in relation to a service for a GP Mental Health Treatment Plan, which service is said not to have been provided. That service was claimed to have been provided to Patient A.
8. Particular 3 again relates to Patient A and alleges the respondent prepared a false "GP Mental Health Care Plan" dated 28 June 2012.
9. Particular 4 alleges the respondent made a false claim for a Medicare rebate by billing item number 721 and 723 for services not provided for Patient A in respect of whom the claim was made.
10. In the amended Complaint Particular 5 was omitted.
11. Particular 6 is an allegation of a false claim to Medicare for a consultation in his consulting rooms when Patient B was not in attendance on 25 March 2014 the date of the alleged service.

• She was sexually abused by her cousin (apparently as an early adult).
• Her first marriage was abusive.
• One or both of her parents were alive but frail.
• That she had been tertiary educated.
• That she had never smoked.
• That she had recently separated from her husband.
• That she had been given patient education.

1. We note the form, which has been provided in evidence by the HCCC at Tab 15 page 7 has not been signed by either the patient or Dr Knowles.
2. Patient A also wrote to the HCCC on 1 November 2015 and made a statement on 5 October 2018. Both those documents are contained in exhibit XA1 at Tabs 3 and 3A. In her statement dated 5 October 2018 Patient A attaches some of her records to support her assertions about happenings on certain dates.
3. Patient B made a statement on 24 May 2016. In relation to this patient the agreed facts are as follows: Patient B 10. In about 2011-2013, the practitioner was a regular customer at Patient B's restaurant. 11. In about 2011-2013, the practitioner administered Botox treatments to Patient B. 12. In about 2011-2013, the practitioner accepted payment from Patient B for her Botox treatments including by way of meals at her restaurant. Complaint One 13. On about 29 June 2011, (Complaint One, particular 1) the practitioner prepared a "Better Access Mental Health Care Plan" dated 29 June 2011 for Patient B. 14. The practitioner prepared the mental health care plan on a date unknown to the Applicant but presumed by the Applicant to be on or about 29 June 2011, in the absence of Patient B. 24. On 3 September 2013, (Complaint One, particular 5) the practitioner made a claim for a Medicare rebate for Patient B by billing Medicare item number 23 (consultation at consulting rooms - level 'B'). 25. The practitioner did not write any consultation notes regarding the alleged consultation with Patient B on 3 September 2013. 26. On about 26 March 2014, (Complaint One, particular 6) the practitioner made a claim for a Medicare rebate for Patient B by billing Medicare item number 44 (consultation at consulting rooms - level 'D'). 27. The practitioner did not write any consultation notes regarding the alleged consultation with Patient B on 25 March 2014. 28. On about 1 October 2014, (Complaint One, particular 7) the practitioner made a claim for a Medicare rebate for Patient B by billing Medicare item number 721 (attendance by a medical practitioner for the preparation of a GP Management Plan for a chronic or terminal medical condition), Medicare item number 723 (attendance by a medical practitioner to coordinate the development of Team Care Arrangements with at least three healthcare providers for a chronic or terminal medical condition) and Medicare item number 2713 (GP Mental Health Treatment Consultation). 29. The practitioner did not write any consultation notes regarding the alleged consultation with Patient B on 1 October 2014. 30. On about 1 October 2014, (Complaint One, particular 8) the practitioner prepared a "GP Management Plan and Team Care Arrangement" dated 1 October 2014 for Patient B. 31. On about 18 February 2015, (Complaint One, particular 9) the practitioner made a claim for a Medicare rebate for Patient B by billing Medicare item number 44 (consultation at consulting rooms - level 'D'). 32. The practitioner did not write any consultation notes regarding the alleged consultation with Patient B on 17 February 2015.
4. Patient B was a patient of Dr Knowles. She also knew him as a customer at the restaurant business she conducted in the same NSW regional city where Dr Knowles practised. She knows Patient A who informed her of her complaint against Dr Knowles. Patient B thereafter sought a copy of her own Medicare records. As a consequence of viewing those records, she made a complaint to the HCCC.

• In relation of paragraph 52, no mental illness was diagnosed. The plan was written to record supportive counselling which was provided on many occasions.
• In relation to paragraph 64 Dr Knowles denies saying the words "it could jeopardise an insurance claim" and "Open it and you'll see there are no notes in there…I never put notes".
• In relation to paragraph 65 Dr Knowles denies that he admitted committing fraud. He also denied the conversation set out in paragraph 66 ("Well you had your breakup with your husband").
• In relation to paragraph 73 Dr Knowles attributed the breakdown in the "cordial relationship" between himself and Patient A to his having to terminate her employment and also reneging on an agreement that she could take a weighing machine, in leu of wages he owed her, once he was aware of the cost of the machine.
• In relation to paragraph 79 Dr Knowles stated Patient A had told him (perhaps in the company of his wife) that her first marriage was abusive.
• In relation to paragraph 90 he denied saying words such as "I have been flying under the radar for years". He denied ever saying words to the effect that he had deliberately mislead Medicare.

1. We now turn to consider the oral evidence of Patient A, Patient B and Dr Knowles.

Oral Evidence of Patient A

1. This witness presented as an honest witness, careful in the answers she gave. She was, at times, seemingly attempting to anticipate where questions were going, with respect to her credit or issues of fact in the case. She showed minimal signs of defensiveness. She presented as shocked and concerned about the inclusion in her medical records of a suggestion that she was in need of a Mental Health Plan. She rejected suggestions she was making the complaint in retaliation for having been dismissed by Dr Knowles from her employment with him. She did not present as holding Dr Knowles and his wife responsible for the breakdown of her marriage. She did not say why the marriage broke down, however, she did say that Dr Knowles and his wife told her where her husband was and why he was at that place, at the point where she regarded her marriage as terminated. She had been introduced to her husband by Dr Knowles and his wife.
2. All in all, our summary of Patient A, as a witness, was that her evidence was credible, given with conviction and given honestly.
3. In her oral evidence, given as evidence in chief, Patient A corrected paragraph 31 of her 12 April 2016 statement, saying the paragraph should have referred to the address of Medical Practice B.
4. Patient A said, that when she worked for Dr Knowles she had access to the PracSoft software, however, that did not give her access to any patients medical records.
5. Shown page 4 Tab 15 in exhibit XA1, Patient A said that on the date listed for 19 April 2013 she did not have a consultation with Dr Knowles. She said "I did not meet with him in his office I asked him in the hallway."
6. In relation to the 4 page document titled Mental Health Plan dated 28 June 2012 (Tab 15 page 7 and following), this document purported to be created for Patient A. She was asked: "Did you have any knowledge of this being done?" She replied: "No.". She said she had seen the item number for the Mental Health Plan when she saw her record on the practice software. She stated she had not asked Dr Knowles to prepare the plan.
7. Asked if she discussed with Dr Knowles on 19 April 2013 a GP Management Plan she replied "No I did not discuss anything with him."
8. In relation to the conversation she had set out in her statement at paragraphs 62 to 66, which she said occurred on 8 May 2015, she said she: "wrote it down straight away because I could not believe he had just admitted he made the claims, but, he said he had not made my medical notes on me which could affect my insurance."
9. Patient A was asked if she knew Patient B. She said she did. She had worked with her after her employment with Dr Knowles was terminated in May 2015. She commenced her employment with Patient B in November 2015. She worked with Patient B for about 8 months.
10. Patient A was cross-examined by counsel for Dr Knowles.
11. Patient A accepted she was a patient of Dr Knowles' practice. She had met Dr Knowles' wife in about November 2006. Dr Knowles and his wife had introduced Patient A to her husband who she married in 2008. She had socialised with Dr Knowles and his wife. Between 2006 and 2012 she socialised with them at their holiday home in Katoomba. She and Mrs Knowles had travelled to Italy together.
12. Patient A said her marriage broke down in June 2011 when Dr Knowles and his wife told her that her husband had travelled overseas.
13. By the end of 2011 Patient A had stored some clothing stock at the residence of Dr Knowles.
14. Patient A denied she told Dr Knowles in 2012 that she found, her then work place, depressing. She said "It is not a word I used. I may have said 'toxic'."
15. It was put she told Dr Knowles that she had a problem with one of the managers at that work place. She denied that and said, "I probably told Jenny (his wife)". She said she had brought a problem to the management and it was not resolved, so she left the employment.
16. It was put that the conversation set out in paragraph 23 of her statement (TAB 4 exhibit XA1) did not occur. (The asserted fact was that Dr Knowles' wife had told Patient A in December 2012 the Australian Tax Office had garnisheed her bank account and they were under threat of bankruptcy). She said the conversation did take place.
17. Patient A agreed she had hired the employee, known as Employee A, after Dr Knowles had moved his practice to Medical Practice B. She agreed she had told Dr Knowles Employee A was an enrolled nurse. She denied she told Dr Knowles that Employee A could attend to "practice nursing". She agreed she had dismissed a staff member after she found that staff member had signed Dr Knowles' signature on a prescription.
18. Patient A was taken to TAB 15 exhibit XA1 page 4. She agreed 19 April 2013 was the first consultation after commencing to work for Dr Knowles. She denied she ever had an injection administered by Dr Knowles in his consultation room.
19. Patient A agreed that in June 2015 her employment was terminated with Dr Knowles. It was put she was unhappy that Dr Knowles had decided not to allow her to take the weighing machine in lieu of a final wage payment. She denied that. She denied she was unhappy to leave her employment with Dr Knowles.
20. Asked about her complaint to the HCCC, Patient A said that she had contacted Medicare in May 2015 and that organisation had referred her to the HCCC. She was unsure about the date she first made contact with the HCCC.
21. Patient A agreed she had engaged solicitors in the NSW regional city to act for her in relation to alleged defamation emanating from Dr Knowles and his wife. She agreed she made her first statement for this proceeding in April 2016. She was disappointed with the way she had been treated by Dr Knowles and his wife at that time.
22. She agreed she had said in her oral evidence that she had asked Dr Knowles to correct the Medicare records in relation to "mental illness". She said "and also terminal illness". She agreed she had not referred to terminal illness in her statements however she said "I know I asked him to have it reversed because I knew it would affect my insurance."
23. It was put that Dr Knowles did not say "yes" to her statement to him "so you are openly admitting fraud". She said "he did". She denied she had fabricated that evidence or any other of her evidence.
24. In relation to the GP Mental Health Plan for Patient A, prepared by Dr Knowles, it was put that "the information Dr Knowles used, was provided by you, over the course of a significant number of informal counselling sessions or discussions". She responded "I do not agree." She denied she had conversations with Dr Knowles, in the presence of his wife, about aspects of her life which were troubling her.
25. We pause here to note that Dr Knowles' wife was not called as a witness in his case.
26. In re-examination, she was asked whether she had asked Dr Knowles to contact Medicare about the charge for the GP Mental Health Plan. She said she knew he had contacted Medicare in relation to another patient (to have a claim for a Medicare item number changed).
27. Patient A was asked questions by members of the Tribunal.
28. She was asked if she discussed with Mrs Knowles any of the material in the GP Mental Health Care Plan. She said she had not.

Oral Evidence of Patient B

1. Patient B presented as a confident witness. She appeared careful not to assert as a fact, something about which she did not have a clear recollection. She was very fair to the respondent, in the giving of her evidence. She readily conceded facts where she was unclear on her recollection. She presented as honest. She did not present as being antagonistic towards the respondent nor looking for some kind of revenge, or punishment for him, should her evidence be accepted. This was the case even though she believed she was still owed about half of the food bill the respondent had incurred in her restaurant, during the period in which the "contra deal" was in place.
2. Patient B's statement was made 24 May 2016. It is contained in exhibit XA1 at Tab 5.
3. Patient B was 60 years of age at the time of her statement. She is a business proprietor. She conducted a restaurant business in the same rural locality in NSW where Dr Knowles conducted his medical practice, during the period she was treated by him as a patient.
4. Patient B employed Patient A, sometime after Patient A ceased to work for Dr Knowles. During the time she was employed by Patient B, Patient A told her of her experience with Dr Knowles charging Medicare for a service which Patient A said had not been provided to her. Patient B thereafter made enquiries about her own Medicare record at that time.
5. Patient B had been shown a copy of her medical records provided to the HCCC by Dr Knowles. She noted her record showed she "had never smoked". She said that was not correct. She said she was a smoker for 20 years and had stopped smoking 15 years earlier.
6. Having seen the Medicare records for claims made by Dr Knowles against her name, Patient B identified the dates 3 September 2013, 25 March 2014, 1 October 2014 and 17 February 2015, as dates she was "fairly certain" she did not attend upon Dr Knowles.
7. In relation to the entry on 1 October 2014, the medical records provided by Dr Knowles for Patient B, show a "GP Management Plan and Team Care Arrangement (Items 721 & 723)" document was created with that date attached (exhibit XA1 Tab 16 page 9). Patient B stated she did not ask Dr Knowles to create such a plan. She stated that she had attended upon another medical practitioner, who she described as her "regular GP", for treatment in relation to seasonal asthma and hypertension.
8. Patient B said she did not request Dr Knowles to complete a Mental Health Treatment plan for her on 1 October 2014 or at any time.
9. On 31 August 2016, Patient B completed a further statement, which forms part of exhibit XA1. In that statement she said she had been shown a document titled "Better Access Mental Health Care Plan- Item No. 2710" which had her name appended thereto. She said the hand writing on the document was not hers and she had not signed the document.
10. Patient B further states, in relation to the abovementioned Better Access Mental Health Care Plan, she did not seek from Dr Knowles "any assistance with depressed mood or low energy."
11. In her statement Patient B said: "Dr Knowles had been a regular guest at my restaurant. I got to know him quite well. One day in 2013 we discussed a type of contra deal where in exchange for meals I would obtain Botox treatment from Dr Knowles." She was unable to recall who had suggested the "contra deal" and she conceded it may well have been her suggestion.
12. Patient B said she had not told her husband about the "contra deal". She said she "mentioned to Dr Knowles", words to the effect of ''I haven't mentioned it to [my husband] so that Dr Knowles would not bring it up when he next visited the restaurant."
13. Patient B said she did not tell Dr Knowles that she was concerned about Patient A seeing her medical notes as she had already spoken to her about "it". She said Patient A had been a friend of hers since 2011.
14. Between 20 February 2013 and 16 August 2013 Patient B provided meals to Dr Knowles to the value of $4,298.50.
15. In 2013 during part of the treatments Patient B received from Dr Knowles, she experienced a reaction to "filler" which had been injected around her eyes. There was swelling which created visible lumps. Dr Knowles referred her to a medical practitioner in Mosman who Patient B saw in about September that year.
16. When shown her medical records from Dr Knowles' practice she stated in relation to the "Better Access Mental Health Care Plan- Item No. 2710", she had never seen Dr Venter who was referred to in the document.
17. Patient B gave oral evidence.
18. In examination in chief, she confirmed the content of her statements were true and correct. She said she had seen Dr Knowles for "injectables" (Botox) on separate occasions (courses). She otherwise had a GP who she attended upon for all other health issues. She may have seen Dr Knowles for a sore throat. She denied she had attended upon Dr Knowles for mental health issues. She said "I was always tired but not depressed". She denied she had experienced anxiety although she said she was an anxious person. She said she could have mentioned anxiety to Dr Knowles. She saw her usual GP for hypertension treatment. She also saw that GP for seasonal asthma she suffered. She may have seen Dr Knowles about asthma if she had seen him about a sore throat she was experiencing because she said one accompanies the other.
19. Patient B denied she had been referred to a specialist by Dr Knowles in relation to either hypertension or asthma.
20. In relation to matters of privacy concerned with her treatment with Botox, Patient B said she had told Dr Knowles not to mention the treatment she was receiving to her husband. She denied she was concerned about seeing Dr Knowles while her friend Patient A worked there.
21. Asked to look at the medical record created for her by Dr Knowles (Tab 16 exhibit XA1) Patient B confirmed that the medications listed on page 1 of the record contained a complete list of the medications she was taking at the time she saw Dr Knowles. She agreed she attended 11 times in 2011 for treatment to her eyes.
22. Patient B was taken to the GP Management Plan and Team Care Arrangement form, which had been created by Dr Knowles for her. (Tab 16 exhibit XA1). She had no recollection of discussing the medical matters referred to in the document with Dr Knowles. She had Botox injections administered in his rooms and otherwise only discussed Botox treatment with him at her restaurant.
23. Patient B was asked to look at Tab 30 page 3 of exhibit XA1, where a document titled "Better Access Mental Health Care Plan Item No 2710" was set out. It contained her name. It was dated 29 June 2011. She had no memory of ever discussing the plan with Dr Knowles.
24. Patient B was taken to page 7 of Tab 16 where she identified her record created for Botox treatment she received from Dr Knowles. She agreed she had received a treatment for Botox which was also dated 29 June 2011. She had no recollection of discussing with Dr Knowles anxiety or mental health issues on that occasion.
25. Patient B was cross-examined by counsel for Dr Knowles.
26. She agreed she had first met Dr Knowles in about 2009 or 2010 when he attended her restaurant. She also met his wife at about that time. She developed a friendly relationship with them as customers of her business.
27. It was put that while Patient B attended upon Dr Knowles for Botox treatment in 2011, she discussed with him: (a) Concerns she had about her appearance. (Patient B said: "only to look fresh"); (b) Feelings of tiredness by working seven days a week? (Patient B said: "I discussed that with everyone.") and; (c) That her husband not find out about her treatment of Botox? (Patient B said: "In the restaurant I said that.")
28. It was put that Dr Knowles had provided a referral letter to the practitioner, Patient B was referred to, in relation to the swelling which had occurred around her eyes following the injection of "filler" by Dr Knowles. Patient B did not recall any letter however, she recalled that the practitioner had telephoned Dr Knowles from his rooms while she was present.
29. It was put that Patient B had specifically asked Dr Knowles not to make any medical notes about her referral to the Sydney practitioner for the treatment to the area of her eyes, which had reacted badly to the "filler" injections. She denied that was the case.
30. Patient B denied she had asked Dr Knowles not to make any notes about the Botox treatment he administered to her. She said there had only been one conversation about privacy which took place at her restaurant. It related only to Dr Knowles not "mentioning anything" to her husband about Botox treatment she was receiving.
31. It was put that Dr Knowles had provided, to Patient B, on 1 October 2014, a referral letter to a specialist for Patient B to see in relation to seasonal asthma. (We note in his oral evidence Dr Knowles said he was only considering referring Patient B not that he had done so). She denied that and stated she had never attended upon that specialist.
32. In relation to the health concerns set out on page 10 of the GP Management Plan (Tab 16 of exhibit XA1), Patient B was asked to look at page 10 where, there is set out, details of her health, including concerns. She was asked to agree that as at 1 October 2014 those were her health concerns. She said: "They have been concerns all my life." She did not recall discussing any "goals" with Dr Knowles. She did recall having her weight and height taken.
33. Patient B was questioned about her statement, she did not recall attending upon Dr Knowles on 17 February 2015. It was put she attended at 5.45 pm on that day. She said "It surprises me because it was a long time after the Voluma treatment had finished." It was put that on that day she had complained of low mood and self-esteem. She denied that. It was put she had asked Dr Knowles about further cosmetic treatment to be performed by either Dr Knowles or the Sydney practitioner she had seen earlier. She denied that. It was put that she had told Dr Knowles not to record the consultation because she was concerned about Patient A being at the surgery. She denied that and said "I am now more confident that what I have said about this was true."
34. Members of the Tribunal asked Patient B questions. She was asked about the calculation of the amount she said Dr Knowles owed her for meals. She said she had kept a record of the meals received free by Dr Knowles. At the end of the Botox treatment, it totalled $4,298.50. She said she had calculated Dr Knowles owed her $2,000. She had sought payment from him. He had offered her $500 cash to settle the account, however, she had told him she wanted the total outstanding paid. She had not been paid.
35. Patient B was asked again about the attendance, said to have occurred, on 17 February 2015 with Dr Knowles. Patient B said "after the Voluma treatment (in respect of which she had an adverse outcome) I had no interest in going back to Dr Knowles."

Evidence of Dr Robert Spark

1. Dr Spark was engaged by the HCCC as an expert in this case. Dr Spark provided his CV and there is no challenge to his expertise.
2. The briefing letter to Dr Spark from the HCCC is dated 24 October 2016 (see Tab 17 exhibit XA1). He was asked a number of specific questions which he addressed in his report dated 4 November 2016 (Tab 17 exhibit XA1).
3. In relation to the questions, posed for his comment with respect to Patient A, Dr Spark noted the following: "In his response of 13 October 2015, Dr Knowles advised the Commission that he provided many hours of counselling to Patient A which was for privacy reasons not recorded in her medical records. Dr Knowles acknowledged that he had not recorded appropriate clinical entries in Patient A's medical records but did so to protect her privacy and not to cause her concern once she had access to her clinical records". In his response of 15 January 2016 Dr Knowles advised that he had recorded the counselling sessions ''elsewhere on paper, but because of moves from one practice location to another, I have as yet been unable to locate these notes."
4. In relation to Patient B, Dr Spark records "In his response of 8 August 2016 Dr Knowles advises that on 3 September 2013 there are no corresponding notes in Patient B's record, as 'the nature of which was too sensitive to record' as it 'was regarding possible referral to Dr (Sydney Practitioner)". Dr Spark also noted Dr Knowles' response of 8 August 2016 stated that "the consultation on 25 March 2014 'was to remain entirely confidential as it also involved discussion regarding depressed mood, anhedonia and anergia'. Dr Knowles advised that Patient B 'expressed a higher level of concern than a patient would normally express as to the confidentiality because her friend Patient A was then (an employee of the practice)."
5. Further Dr Spark noted "Dr Knowles advised that during the consultation on 1 October 2014 the forms for '721' and '723' were not signed 'due to an oversight'. According to Dr Knowles, Patient B chose not to pursue treatment in relation to her seasonal asthma. Dr Knowles also advised that the Mental Health Treatment (2713) was not recorded 'for reasons of confidentiality.'"
6. In his later report Dr Spark addressed the questions which he had been asked to consider.
7. In relation to Patient A Dr Spark opined as follows:
8. In relation to the creating of a false record on 28 June 2012, as alleged by Patient A, he said that "if the evidence of Patient A is correct then Dr Knowles created a false record on 28 June 2012. That was conduct which falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The departure is significantly below the standard but it does not invite my strong criticism. I do not believe this to be an offence of sufficient magnitude to warrant a harsher level of criticism."
9. In relation to a possible false claim by Dr Knowles against Medicare for the preparation of a GP Mental Health Care Plan on 28 June 2012 relating to Patient A, Dr Spark opined "that was conduct which falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The departure is significantly below the standard but it does not invite my strong criticism. I do not believe this to be an offence of sufficient magnitude to warrant a harsher level of criticism."
10. Dr Spark was asked to comment, accepting Patient A's version of events, in relation to the conduct of Dr Knowles in billing Medicare for items "721" and "723" on 19 April 2013, when Patient A received a flu shot.
11. In his answer to that request, Dr Spark noted item 721 is a claim for preparation of a GP Management Plan for a patient who has a chronic health condition. Item 723 is a claim for a coordinating Team Care Arrangement involving at least three healthcare providers for a patient with chronic health condition. Dr Spark noted there was no medical record entries of a service on that date, also no record of a chronic health condition and no record of any other healthcare providers being involved in Patient A's healthcare. In relation to those circumstances Dr Spark opines: the conduct "was conduct which falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The departure is significantly below the standard but it does not invite my strong criticism. The billing of these item numbers without clinical justification is not an offence of sufficient magnitude to warrant my harsher level of criticism."
12. Asked to make comment upon Dr Knowles' assertion that he provided Patient A with many hours of counselling, without recording that, and accepting such a statement to be correct, Dr Spark said that if a patient requests notes not be recorded in the medical records, or if there is particularly sensitive information given by the patient, it is not unreasonable not to record same. However, it is good practice to make notes which would be kept safe, away from the medical records of the patient.
13. In relation to Dr Knowles' assertion that he had kept separate notes of the counselling for Patient A and that the notes had been lost in the move of his practice, Dr Spark opined (on the basis that the assertion was correct) that such an explanation would be regarded as reasonable however the loss of the notes per se would demonstrate conduct which falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The departure is significantly below the standard.
14. In relation to Patient B, Dr Spark opined that "any claim made by Dr Knowles for services not provided, demonstrates conduct which falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The departure is significantly below the standard but it does not invite my strong criticism. The billing of these item numbers without clinical justification is not an offence of sufficient magnitude to warrant my harsher level of criticism."
15. In relation to the preparation of a false Mental Health Treatment Consultation, and a GP Management Plan and Team Care Arrangement on 1 October 2014 in the name of Patient B, Dr Spark opines that "the allegation is that Dr Knowles fabricated three records and that demonstrates conduct which falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The departure is significantly below the standard and does invite my strong criticism. In relation to any claim made to Medicare for attendance upon Patient B, when she did not attend for a consultation, is a fabrication and would amount to a fraudulent claim to Medicare".
16. Dr Spark was asked to opine, in relation to the provision of medical services by Dr Knowles to patient B on a barter arrangement, where Dr Knowles received meals at the restaurant owned by Patient B. Dr Spark opined such an arrangement would be considered unprofessional however, he was not highly critical of Dr Knowles's conduct.
17. If the recording of notes for Patient B was not undertaken by Dr Knowles, because the nature of the treatment and condition of Patient B "was too sensitive to record", Dr Spark said that Dr Knowles should have recorded the referral by him for Patient B to see the Sydney practitioner in relation to the eye area which had reacted poorly to the injection of eye filler. He said the conduct which falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The departure from the standard was not significant.
18. Dr Spark opined that, if it was accepted Dr Knowles had not had Patient B sign the documentation for the 721 and 723 documents on 1 October 2014, that would be a plausible excuse.
19. In relation to Dr Knowles' statement that he had failed to record notes in relation to the 2713 claim for Patient B on 1 October 2014, because of confidentiality issues, Dr Spark said "Whilst plausible, this is not in line with standard practice for maintaining health records."
20. At the conclusion of his report Dr Spark provided a general comment. Amongst the statements made he included the following: "The two complainants were good friends of Dr Knowles and it is clear that he has provided both of them with formal medical consultations and informal medical consultations over several years. It appears he has been creative in formalising the informal consultations into Medicare claims without the knowledge of the patients. In addition, his medical record keeping has been inadequate for these services. From a Medicare perspective, this could be seen as fraudulent claiming. From a professional perspective the behaviour could be seen as unethical, albeit in the lower range if it is limited to these two patients in the above circumstances."
21. Dr Spark answered an email from the HCCC on 30 July 2018. He had been provided with "more recent letters" in the Knowles matter. He said that nothing contained in those letters would cause him to depart from his report of 10 December 2016.
22. Dr Spark provided a further short report on 2 September 2018. In that report he responded to a request for his opinion in relation to Patient B's version of the circumstances surrounding the preparation of a Better Access Mental Health Care Plan, for her, on 29 June 2011, which she did not seek on that date or at all.
23. Dr Spark said the "set out the information" in the medical records for Patient B, kept by Dr Knowles, had listed only the word "Checkup" for that attendance. He had recorded in Patient B's cosmetic treatment record, that Botox and Juvederm injections had been administered. He opined that on Patient B's evidence and the evidence in the clinical notes, there was no clinical justification for a Mental Health Care Plan to be prepared and billed on 29 June 2011. He concluded, "the conduct is such which falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The departure is significantly below the standard but it does not invite my strong criticism".

Oral Evidence of Dr Robert Spark

1. Dr Spark identified all the source documents he had been provided with as the background to the requested report he subsequently provided. He identified his report of 10 December 2016 and his email to the HCCC of 30 July 2018 and 2 September 2018.
2. Dr Spark said that when he used the term "informal consultations" in his report he was describing consultations which took place outside the consultation room. He said the patient would still need to know that he/she was talking to Dr Knowles on the basis that it was a doctor and patient consultation.
3. Dr Spark was asked "Where a patient and the doctor have a pre-existing friendship, how will the doctor tell the patient they are having a consultation?" Dr Spark said "It is difficult. Such conversations should not take place".
4. In relation to the preparation of the GP Management Plan and Team Care Arrangement documents and the Better Access Mental Health Care Plan document, prepared by Dr Knowles for both Patient A and Patient B, Dr Spark opined there was insufficient information in the documents to justify billing Medicare.
5. In relation to the Better Access Mental Health Care Plan, Dr Spark said it would be indicated as appropriate where it appeared the patient could benefit from counselling. He opined that the GP could provide that counselling service.
6. Dr Spark informed the Tribunal about the boundary issues, which are created where a treating GP and his/her patient are in an employer/employee relationship, or have a relationship as friends.
7. When questioned by the Tribunal members, Dr Spark said he did not consider either the GP Management Plan and Team Care Arrangement documents or the Better Access Mental Health Care Plan document for either Patient A or Patient B meet the criteria for a team care arrangement.
8. Dr Spark was asked about his opinion that he was critical, yet not highly critical of the Botox/Meal exchange arrangement between Patient B and Dr Knowles. He was asked why he was critical of that. He said: "The taxation issue. It leaves open that the doctor could take advantage of the situation (charge more than the service was worth). It blurs the boundaries".
9. Dr Spark agreed that Tab 34 paragraph 8.2 in exhibit XA1 set out guidelines for maintaining professional boundaries. Tab 34 contained a document titled "Good Medical Practice: A Code of Conduct for Doctors in Australia" published March 2014 by the Medical Board of Australia.

Oral Evidence of Dr Knowles

1. Dr Knowles presented as calm and considered in his response to questions asked of him and propositions put to him. Not infrequently he made concessions against interest.
2. Although he had propositions put to him, which if answered in the affirmative would have potentially been evidence of fraud against Medicare, his counsel did not ask for a certificate under s 128 of the Evidence Act. We have assumed that action was seen as unnecessary on the basis that his lawyers had clear instructions that any such allegation was and would be denied.
3. There was nothing about the manner in which he gave his oral evidence, or content thereof, which suggested Dr Knowles was being untruthful in his answers. We will address later whether we accept all his evidence based upon a weighing of all the evidence we have received and reviewed in the hearing.
4. Dr Knowles identified his statements dated 6/2/2019 and 4/2/2020 and said the contents of each document was true and correct.
5. Dr Knowles informed the Tribunal that in April 2019 he had surrendered his authority to prescribe Schedule 4 and Schedule 8 drugs. He conceded that in this case the evidence discloses severe deficiencies in his medical record keeping. He has since undertaken courses in record keeping with Avant and also training in Best Practice with his supervisors.
6. Dr Knowles agreed that he had meals at the restaurant of Patient B which totalled $4,298 as she asserted. He said the first consultation he had with Patient B was on 7 January 2011. On that day he took photos of Patient B with a view to administering Botox. The first time he provided Botox was on 6 March 2011. He said the "contra deal" commenced in March 2011. Patient B paid the sum of $500 and thereafter Dr Knowles and his wife received free meals. The last occasion he administered any cosmetic treatment for Patient B was June 2013 when he injected Voluma.
7. Dr Knowles was cross-examined by counsel for the HCCC.
8. Dr Knowles advised that the "record keeping course" he had undertaken with Avant was an on-line course. He was asked if he is now satisfied, he can keep proper medical records. He replied that he looks at the requirements in the Medicare description items, which is something he had not done before.
9. Dr Knowles denied the June 2011, Better Access Mental Health Care Plan for Patient B, was falsely created. He denied the GP Management Plan and Team Care Arrangement for Patient B, which was dated 1 October 2014 was not created as a result of a consultation with the patient.
10. It was put he did not create a Better Access Mental Health Care Plan in June 2012 for Patient A as a result of a formal consultation with her. Dr Knowles agreed that was true. He denied he did not have multiple informal consultations with Patient A in order to create the Better Access Mental Health Care Plan for her. He did agree he did not inform her he had created a Better Access Mental Health Care Plan for her.
11. It was put that the Better Access Mental Health Care Plan for Patient A, created by him in 2012, was not prepared from genuine consultations, rather, it was prepared to claim a Medicare payment. Dr Knowles disagreed.
12. In relation to Patient B, it was put that the HCCC had written to Dr Knowles' lawyers seeking records for Patient B. Dr Knowles agreed that was correct. He was asked if the complete record for Patient B up to 4 May 2016 was contained at Tab 16 of exhibit XA1. He agreed that was so and said he had created the record. He agreed that the documents at Tab 30 showed a letter from his lawyers dated 8 August 2016, attaching the records for Patient B. He agreed the records on pages 1 to 5 of Tab 16 exhibit XA1 were copies of electronic records. Pages 6 to 8 consisted of scanned photos of Patient B. He was unsure if pages 9 to 13 (the GP Management Plan and Team Care Arrangement for Patient B) was scanned onto the record. He said it was created using software. He was asked whether he would need to have the document printed to have the patient sign the document. He said it could be.
13. Dr Knowles was asked "Isn't the written consent of the patient required for the document?" He replied "I didn't think, at the time, it required the patient's signature. I understood consent was given by engaging in the consultation". He said he had typed the information which has been added to the form. He did not understand the patient was required to sign the document even though the form specifically required that.
14. It was put that Dr Knowles did not refer Patient B to the asthmatic specialist, named on the form, because there was no consultation which occurred with Patient B in the first place. He denied that. He did agree he had not referred Patient B to that specialist medical practitioner.
15. In relation to the GP Management Plan and Team Care Arrangement document, prepared for Patient B, he was considering her hypertension, her asthma and her chronic anxiety. He also agreed however, that the only baseline examination was to record her blood pressure. He said he had taken Patient B's blood pressure on 1 October 2014, yet the date recorded for her blood pressure reading was 27 August 2013, where it was stated to be 150/111. He agreed that it suggested the reading was taken on 27 August 2013 and not 1 October 2014. He also agreed the reference to a blood pressure reading of 150/110 appeared under a heading "Current health needs/problems". He thought that was a reference to the August 2013 reading. He was asked to look at the record he made for the attendance by Patient B in consultation on 27 August 2013. He agreed the information set out in the GP Management Plan and Team Care Arrangement document for Patient B came from that recording.
16. Dr Knowles was asked to look at page 9 of the document under the heading "Past History". There, the words "None recorded at Patient's request" are inserted. He agreed he has said that she did not want detail recorded because her friend Patient A worked at the practice and might access the records or see them in the ordinary course of her employment. It was put that there is an inconsistency between the personal details on the form and the contention that Patient B did not want her details recorded. Dr Knowles agreed that was true, however, he asserted Patient A did have "access 9" to the records.
17. We note here, that when Patient A gave her evidence it was not suggested to her that she had access to patients' medical records, including her own. There was nothing put to her to establish that she had cause to access patient records of the practice. Nor did Dr Knowles say it was part of her position to access those types of records and that he had given her permission to do so.
18. Dr Knowles was asked about the GP Management Plan document he created for Patient B. He said part of the document was automatically populated with information from the computer. He did, however, complete the detail under the heading "Primary Diagnosis" on page 9 of the document. He said the list of medications automatically populate from the patient's records. He said it was generated on 1 October 2014. He agreed if that was so it would not include a script dated 3 May 2016.
19. It was put that as the "Medication List" on the document included scripts dated 3 May 2016, the document was not created until after that date. Dr Knowles agreed that was correct.
20. Dr Knowles was asked to look at the computer generated medical records for Patient B which are set out on page 2 of Tab 16 of exhibit XA1. He agreed the entry dated 4 May 2016 was created because he opened that record on the computer. He said he did that to print it out. He agreed there was no entry dated 1 October 2014. He agreed that the last consultation date was 25 September 2013.
21. Dr Knowles said the original GP Management Plan was hand written and not placed on the computer file as he did not want Patient A to see the records. He agreed that he had not provided that explanation to the HCCC.
22. Dr Knowles agreed there was no particular reason to create the computer record for the GP Management Plan and Team Care Arrangement for Patient B. He agreed he could have provided the hand written version. He denied he had never created a hand written copy of the plan for Patient B.
23. The Better Access Mental Health Care Plan which is set out at pages 16, 17 & 18 in Tab 16 of exhibit XA1 is filled with hand writing. Dr Knowles said he had printed out the form from the computer and filled it in by hand. He agreed he had printed out the Better Access Mental Health Care Plan form from the computer on that date. It was also the date he administered Botox treatment to Patient B as is shown on page 19 of Tab 16 in exhibit XA1.
24. Dr Knowles agreed he would have expected the form to be populated with the information held on record for Patient B, at the time it was printed. He agreed he had provided the document at a later time than the first group of records he provided to the HCCC, in relation to Patient B. He agreed those documents were provided under cover of letter dated 8 August 2016, from Avant (his lawyers) with the explanation "Dr Knowles has also located further clinical records for 2011, consisting of 5 pages relating to MBS item 2710 and Natural Look treatment plan, copy attached." (see Tab 30 exhibit XA1).
25. Dr Knowles confirmed that the hand written record was not included in the computer records. He said it was stored separately in his consultation room. The Better Access Mental Health Care Plan record was stored in a separate place to where he stored the record of Patient B's Botox treatment.
26. Dr Knowles was asked if he stored Patient B's hand written notes in the same place he stored the records for Patient A. He said he did not have any notes for Patient A. He agreed he had never made any notes about the "informal discussions" he had with Patient A (which was described by him as providing counselling).
27. Dr Knowles agreed the GP Management Plan and Team Care Arrangement for Patient B and the Better Access Mental Health Care Plan for her were stored in the same place by him. He agreed he provided a copy of the GP Management Plan and Team Care Arrangement document in May 2016 to the HCCC and the Better Access Mental Health Care Plan document was not provided until August 2016. He denied that was because the 2nd document did not exist in May 2016.
28. It was put he hadn't kept a copy of the GP Management Plan and Team Care Arrangement for Patient B however, he denied that. He said he could not recall what had happened to the document.
29. Dr Knowles was taken to page 1 of Tab 25 of XA1 where he had supplied an answer to a question posed by the HCCC. There he said he had recorded notes of his counselling sessions with Patient A and kept them separate from the computer-generated medical notes. However, in his oral evidence he said he had not made any notes. He was asked to clarify that conflict. He said "The counselling sessions took place with my wife. Very rarely with myself. At the time Jennifer wrote down notes as she was the counsellor. The notes were made in the absence of Patient A."
30. He was reminded his answer to the HCCC question about notes taken for the counselling of Patient A stated "I did record". It was put nothing was said about his wife making the notes or that she had provided the counselling. He agreed that was correct.
31. We note our concern about the above evidence from Dr Knowles stating that the counselling took place with his wife, rarely with him. She was the one who held the counselling notes. Again, nothing of this allegation was put to Patient A when she gave her oral evidence. Further, we note Dr Knowles' denial in cross-examination that he had created the Better Access Mental Health Care Plan after "multiple informal consultations" with Patient A.
32. Dr Knowles was taken to the evidence of Patient B where she said the medical records kept by Dr Knowles did not match the dates upon which claims were made for payment, to Medicare, in relation to Patient B. He agreed that was true. He agreed it was unlikely he made any notes in relation to Patient B. He denied he had not provided the services charged for.
33. Asked about the lack of signature by Patient A on either the GP Management Plan and Team Care Arrangement or the Better Access Mental Health Care Plan, Dr Knowles said he only had the patients sign the forms if he was referring them onto other practitioners.
34. In relation to Patient A, Dr Knowles agreed he billed Medicare for a GP Mental Health Care Plan (Item No 2710) on 28 June 2012. He agreed there was no entry in the medical records for Patient A for that day.
35. Dr Knowles agreed it was not good practice to prepare a Mental Health Plan without the subject patient's knowledge. In response to the question "Is it helpful to do that?" he said: "It is helpful to the practitioner to bring together the times of informal counselling." It was put: "Nothing happened in counselling after the creation of the plan". Dr Knowles responded "No but the plan was created to reflect what had happened before that date."
36. Dr Knowles agreed that the Mental Health Plan did not have detail of the "anxiety" or how long she had suffered from it and there was nothing on the document which would assist in drawing together what was said to be "many hours of counselling". He agreed he had not referred her for counselling. He denied that was because she did not have any presentation of mental health symptoms. He denied she had not spoken about her marriage breakup in a context of counselling. He denied he created the document to support inappropriate billing.
37. In relation to his statement that he had prepared a Mental Health Plan to assist himself, Dr Knowles agreed he could have instead "just made a note".
38. Dr Knowles was shown a document titled "Medical Benefits Schedule Book." That document is published by "Australian Government Department of Health and Aging". (see Tab 41 exhibit XA1). He was shown a sentence on page 8 of the document which appears under the heading "Billing Practices Contrary to the Act". The sentence is: "Medicare benefits are limited to services which the medical practitioner provides at the time of the consultation - any other services must be separately listed on the account and must not be billed to Medicare." He agreed that what he was doing, in this particular instance, was crystallising earlier consultations but not a consultation on the day of the charge. He agreed that the way he charged for the Mental Health Plan for Patient A did not comply with that portion of the Medicare billing practices document (set out above).
39. Dr Knowles was asked about when the GP Mental Health Care Plan for Patient A was created as a record on the computer. He looked at the document which is set out at page 7 of Tab 15 in exhibit XA1 and said 28 June 2012 (the date affixed to the document). He was then taken to his answer to question 1 posed by the HCCC to him and answered by him on 15 January 2016 (page 1 Tab 25 exhibit XA1) where in answer to the question: "Why was the document not signed by Patient A?" Dr Knowles said: "Because the template was filled out after work & then filed. I took some time to find the file, as it was on paper & stored in a box on transfer from one surgery to another in 2013."
40. Dr Knowles was asked again to look at the copy of the GP Mental Health Care Plan he created for Patient A. (see Tab 15 page 7 exhibit XA1). He agreed the date 28 June 2012 appeared on the front page of the document and on the last page and at the foot of the third page. His attention was then drawn to the date appearing at the top of page three in the box which contained the name of Patient A. He agreed the date 12 October 2015 was affixed at that point indicating the information was inserted/recorded on that date. He agree if the document had been created in 2012 there would be no reason for it to have a 2015 date contained therein, including if it was printed out and stored on paper. He agreed the 2015 date was very close to the date he actually provided the document to the HCCC, which was 13 October 2015. It was put that the only reasonable conclusion is that it was created on 12 October 2015. Dr Knowles agreed that was so. He thought the only explanation can be that he had the document in written form and then typed it out for the HCCC. He didn't agree that as he was asked to produce his records, he would have produced the hand written copy of the document.
41. It was put that he had produced a hand written copy of the Better Access Mental Health Care Plan he had prepared for Patient B. He agreed that was so however, he had no explanation as to why he had not produced the hand written copy of Patient A's Mental Health Plan document. He denied the reason was that he only created the document on 12 October 2015.
42. It was put that the document for Patient A was created "with whatever information you had in October 2015." Dr Knowles denied that assertion. It was put that Patient A had not told him she was the subject of sexual abuse by a cousin or that she had never smoked. He denied that.
43. Dr Knowles denied the assertion he had created the Better Access Mental Health Care Plan for Patient B to justify billing Medicare for same. He denied that. He had said in his statement (paragraph 29A in exhibit XR1) that the billing for items 721 and 723 for Patient B on 19 April 2013 was an error. He agreed he had not said that when he provided answers to questions asked of him by the HCCC (question 5 Tab 25, exhibit XA1, letter of 25 January 2016). He denied Patient B had not asked him to keep her records private from Patient A.
44. It was put that Patient B had told Dr Knowles that she was tired and suffered from seasonal asthma outside of any consultation. He replied that was so, however, she also told him that information in consultation.
45. Dr Knowles was asked questions by members of the Tribunal. He agreed the plan was not completed for Patient B as he had not included his diagnosis of her after completing the K10 exercise (a list of questions the patient is required to complete themselves). When asked what was the service he supplied to Patient B he said "Counselling by myself without referral to anyone." He agreed he did not need to create a Mental Health Plan to provide counselling to Patient B.
46. Dr Knowles was asked how he reached a result of 18 for the K10 exercise. He said he counted dots ticked by Patient A. He agreed that would suggest there was a consultation. He did not have the K10 questionnaire form in his records. We note, at this point, that it had not been put to Patient A that she had completed a K10 questionnaire in consultation with Dr Knowles.
47. In relation to the K10 questionnaire, Dr Knowles agreed the questions relate to a fixed time period being "the last four weeks". He agreed there is no record of any consultation for Patient A in 2012. He agreed he had said it was prepared in June 2012 or shortly before. He agreed that prior to being asked a question during the hearing, by a member of the Tribunal, he had never suggested there had been a formal consultation with Patient A for the preparation of the Mental Health Plan he had created. He said that the K10 forms are kept in his consultation room. He did not have an independent memory of the consultation. He denied the evidence he has given about administering the K10 test to Patient A, was invented. He did agree that a patient undertaking the K10 questionnaire would understand they were undertaking a mental health assessment for a Mental Health Plan.
48. Dr Knowles was asked whether he saw an inconsistency between Patient A expressing concern/shock in finding a Mental Health Plan had been charged to Medicare, in relation to herself and at the same time apparently participating in a K10 questionnaire exercise. He did not respond to the question.
49. At the conclusion of his oral evidence, the Tribunal members offered Dr Knowles an opportunity to speak to the Tribunal as he wished. He informed the Tribunal he is 70 years of age. He works with his two supervisors. He would like to continue to work as a medical practitioner. If he didn't practise medicine, there is no other occupation he could undertake for reward. He works in the same surgery, in a North Coast of NSW town, with one of his supervisors. There are other medical practitioners working in the practice, during the hours he works. He is never there alone. He is paid a percentage of his billings as his remuneration.

Determination of the Complaint One

1. The HCCC provided its submission on 24 March 2020. Having outlined the nature of the complaints brought in suit 2018/00246475 (the 2018 Complaint) and suit 2019/00269860 (the 2019 Complaint), the submission addressed "The Law" relied upon by the HCCC in relation to both the 2018 complaint and the 2019 complaint.
2. Given that the two complaints were heard together we propose, to address the 2018 complaint firstly and reach our conclusions in relation to whether the complaint is proved. We will then consider the 2019 complaint and determine if that complaint is proved. We will then consider what protective order will be required to address the established complaints, should that be the outcome of our findings.
3. As set out at the commencement of these reasons the 2018 complaint contains 2 complaints. The first complaint alleges unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law. Ten particulars are set out. The second complaint alleges the respondent is guilty of misconduct under s 139E(b) of the National Law. Particulars 1 to 9 set out under Complaint One are relied upon. We note Particular 5 in Complaint One is not relied upon (for either Complaint One or Complaint Two), in the amended Complaint document, moved on by the HCCC in this hearing.
4. Turning then to consider the evidence in complaint One, we firstly note the terms of s 139B(1)(a) and/or (l) of the National Law. 139B (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following- (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

Particular 1

1. The allegation is that Dr Knowles, on or about 29 June 2011 prepared a Better Access Mental Health Care Plan in relation to Patient B which was false because Patient B did not seek it and a Better Access Mental Health Care Plan was not clinically indicated.
2. We are satisfied, on the evidence we have set out in these reasons, that Dr Knowles did on about 29 June 2011 prepare a Better Access Mental Health Care Plan, which he dated 29 June 2011, in respect to Patient B. It is an agreed fact that the document was prepared in the absence of Patient B. We are satisfied Patient B did not seek a mental health care plan from Dr Knowles on 29 June 2011 or at any other time. We are further satisfied that Dr Knowles did not provide any mental health therapy for Patient B, in the nature of counselling. We are satisfied that any conversations they may have had in passing, at the restaurant of Patient B, while Dr Knowles, with or without his wife being present, could not properly constitute a medical consultation. Nor could a general conversation, which took place between the two while Dr Knowles was injecting substances (Botox) into her face, constitute a consultation for the provision of a service in relation to Patient B's mental health. We are satisfied that nothing which passed between Patient B and Dr Knowles between 2011 and 2015 was intended, or understood by Patient B, to be a request for medical assistance with anxiety or tiredness, be it chronic or otherwise, or for any other aspect of mental health.
3. To reach the above finding we have accepted the evidence of Patient B. We also note that in the evidence of Dr Knowles he has not asserted that Patient B ever sought his medical services for either anxiety, tiredness or seasonal asthma.
4. The particular Better Access Mental Health Care Plan for Patient B, which we have identified and referred to earlier, was devoid of any detail which would indicate it was clinically indicated. The form has the hand writing of Dr Knowles only, has no other information entered by computer and has not been signed by Patient B. The form had been printed out by Dr Knowles from his computer and filled in by hand. The form is clear in its requirement for the signature of the patient to be attended to same. In the last box on the form the words "Record of Patient Consent" are set out in bold. Dr Knowles has filled in all the detail in that box which is required to be completed other than obtaining the signature of Patient B. We do not accept that Dr Knowles could have concluded that the signature of Patient B was not required in order to implement the plan. It follows that if the patient did not provide her consent then the Better Access Mental Health Care Plan could not be implemented and a charge could not be made on Medicare for the creation of the plan. The records produced by Medicare, for charges made by Dr Knowles in the name of Patient B, include the 2011 year. Dr Knowles made a claim for item 2710 (the item number listed on the top of the Better Access Mental Health Care Plan form) on 29 June 2011. He also made a Medicare claim for item 2713 for Patient B for a service provided on 1 October 2014. He has also asserted he did provide many hours of formal and informal counselling for Patient B.
5. We understand Dr Knowles to use the term "formal counselling" to apply to a circumstance where he provided clinical counselling in the confine of his consultation rooms. We understand Dr Knowles to refer to clinical counselling conducted outside his consultation rooms to be "informal counselling". Clearly a general conversation conducted between a medical practitioner and a patient, in the general community, cannot be clinical counselling, for which the medical practitioner is entitled to charge Medicare. Thus conversations, Dr Knowles may have had with Patient B, in the confines of her restaurant, as she provided him with meals, are not, in our view, clinical counselling for which Dr Knowles can properly charge Medicare nor do such conversations require notes to be recorded in a patient's medical file.
6. There is no note in the medical record kept by Dr Knowles for Patient B, to support his assertion that the plan was discussed with Patient B, was sought by her, or that it was, in deed necessary, to attend to her medical condition, disclosed to him during the course of a clinical consultation.
7. Dr Knowles' evidence, as set out in his statement forming part of XR1, suggests the claim for Medicare item 2713 followed his asserted consultation with her on or about 1 October 2014. The Medicare record, for Patient B and relative to Dr Knowles, is contained at Tab 10 of exhibit XA1. The record shows item number 02713 is "Attendance for GP Mental Health Treatment". The record shows Dr Knowles made the claim on Medicare on 2 October 2014 for a service provided on 1 October 2014. In the same day (2 October 2014) Dr Knowles made a claim on Medicare in relation to Patient B for items 721 and 723. The record from Medicare shows item 721 to be "attendance by a medical practitioner for the preparation of a GPMANAG". Item 723 is "Attendance by a medical practitioner to coordinate the development of a Team". Item 721 was charged at $144.25; Item 723 was charged at $114.30 and item 2713 was charged at $71.70. Dr Knowles said the item 2713 claim "concerned my counselling the patient for her chronic anxiety about her appearance and working seven days a week." We note at this point that we accept Patient B was not aware she was in a formal counselling session with Dr Knowles on that occasion. There is no evidence she sought any medical service from Dr Knowles for anxiety, be it chronic or otherwise. The claim for item 721 is said by Dr Knowles to relate to Patient B's asthma. Item 723 was also said to be in relation to Patient B's asthma.
8. Notwithstanding the claims for treatment in relation to asthma, nowhere in the medical record kept by Dr Knowles for attendance upon Patient B, is there any reference to asthma. The only reference is found in the GP Management Plan and Team Care Arrangement prepared by Dr Knowles and dated 1 October 2014. There in one of the boxes, appearing under the heading "Multidisciplinary Patient Needs and Planned Actions" are the words "Asthma is in Spring & occas. in Autumn." The form also asserts Dr Knowles is the "service provider responsible" for control of that condition. The medication list on the plan document does not suggest any prescribed medicine for asthma. It refers to Nasonex Nasal spray for "Rhinitis-Perennial". The form requires the patient to sign. It has not been signed. That part of the form is very clearly set out. We cannot accept that the set out of the form could reasonably lead any medical practitioner to conclude it was not necessary to have the patient sign the form, if it was prepared during a consultation. Dr Knowles has claimed he did not have the form signed by Patient B because it was created during consultation with Patient B.
9. There is a portion of the form which sets out "Referrals Made". It suggests a referral was made to a specialist practising in the same rural city as Dr Knowles. In his oral evidence Dr Knowles said he was intending to refer Patient B to a specialist who could treat her asthma, however, he said he did not make the referral. Patient B confirms she did not attend upon that specialist.
10. As seen earlier, Dr Knowles and Patient B had a relationship outside of that described as doctor/patient. They had the relationship of Restaurant owner/customer. In the context of that relationship we accept they exchanged pleasantries and "small talk". We do not accept that any of their interaction outside of Dr Knowles' consultation room was intended by either, or understood by either, to be in the nature of a medical consultation. Yet, we are satisfied, Dr Knowles has drawn upon that exchange of information to now justify, as clinically indicated, the creation of a Better Access Mental Health Care Plan for Patient B dated 29 June 2011.
11. It is common fact that Patient B sought from Dr Knowles, that he administered Botox to her face. She sought that treatment from him in early 2011 and again in 2013. We do not accept that Patient B requested that Dr Knowles keep his medical records of her attendance upon him, away from the possibility of either Patient A or her husband, inspecting same. The evidence establishes to our satisfaction that the only request made by Patient B of that nature was made on the premises where she conducted her restaurant business, and was a request that Dr Knowles not speak to her husband so as to disclose that he was treating her by application of Botox. There was nothing said by Dr Knowles to Patient B, on her evidence, that for Dr Knowles to have had any discussion with Patient B's husband about his administering Botox to her face, without the specific knowledge and prior consent of Patient B would be a betrayal of patient confidentiality, an action which good practice would not allow.
12. In the Amended Reply to Complaint document filed on behalf of the respondent, he sets out his reply to Complaint One, Particular one as follows: "The respondent denies he falsely created a Better Access Mental Health Care Plan on 29 June 2011 in relation to Patient B. (a) The respondent denies the allegation. (b) The Better Access Mental Health Care Plan as at 29 June 2011 was clinically indicated following counselling Patient B over many hours both informally and formally."
13. In his written submission Dr Knowles outlined the evidence which supported the particular, as provided by Patient B and also set out the evidence Dr Knowles had given. The thrust of the summation of that evidence is that Dr Knowles submits the evidence did not reach the requisite standard to establish that Dr Knowles had seriously departed from the requisite standard of conduct necessary for a medical practitioner, by creating a false Better Access Mental Health Care Plan for Patient B.
14. Dr Knowles' case is that the plan was "clinically indicated following counselling (of) Patient B over many hours both informally and formally." Yet the records he did keep, in a separate place to where he kept his records for all other patients, did not indicate any counselling or any mental health illness which required counselling. He kept records of the Botox attendances in 2011 and 2012 and he has produced those. He kept records on his computer system commencing January 2011. The entries for 2011 and 2012 on his computer provide no detail of the reason for any consultation. However, the dates do match the hand written record he kept. There was no reason for him not to have included, on the record he did keep of the Botox treatment, a record of any formal counselling he provided and detail of any other sensitive information which Patient B had, allegedly, asked him to keep confidential.
15. The records produced by Medicare in relation to claims made by Dr Knowles for services provided to Patient B indicate that Dr Knowles made a claim for item 2710 on 29 June 2011.
16. We are satisfied, on the requisite standard, that Patient B did not seek a mental health care plan from Dr Knowles on or about 29 June 2011. We are further satisfied that a mental health care plan was not clinically indicated on or about 29 June 2011 for Patient B.
17. In so determining, we conclude in the circumstance of this case, that if Patient B was unaware she was being clinically counselled during the occasions Dr Knowles said he was providing such counselling, and/or, she had not sought treatment from Dr Knowles for any anxiety she was suffering, or any other mental health issue she may have had, then there was no basis for Dr Knowles to prepare a mental health care plan for her, no proper basis upon which to levy any fee for same (if that be what he did) and no basis to be providing any medical service in the nature of clinical counselling to Patient B. We are satisfied therefore that Particular 1 is established.

Particular 2 and Particular 3

1. Both these particulars relate to Patient A and address an alleged consultation said by Dr Knowles to have taken place on 28 June 2012.
2. Particular 2 alleges that on 29 June 2012 Dr Knowles made a false claim for a Medicare rebate by billing item number 2717 for a service which was not provided on a specified date of 28 June 2012. The claim was made in relation to Patient A. It is alleged Patient A did not attend a consultation with Dr Knowles on 28 June 2012 AND did not seek a Mental Health Care Plan on that day.
3. Particular 3 alleges that Dr Knowles did on 28 June 2012 prepare a false GP Mental Health Care Plan for Patient A dating it 28 June 2012, in circumstances where:

• There was no consultation on that day;
• Patient A did not seek the plan;
• The plan was not prepared in consultation with Patient A; and,
• The plan does not accurately reflect Patient A's relevant history, does not accurately reflect her current mental health and where there was no provision of patient education as asserted by the form.

1. We note the summation of the evidence of Patient A on the subject of the alleged medical treatment she received from Dr Knowles, is that, at no time did she seek a medical service from Dr Knowles in relation to any aspect of her mental health.
2. In the Reply document filed by Dr Knowles he addressed the claim in Particular 2 by denying he made a false claim as alleged. He asserted he created the plan for Patient A on 28 June 2012 and stated it was clinically indicated on 28 June 2012.
3. In relation to Particular 3 Dr Knowles denied the GP Mental Health Care Plan dated 28 June 2012 was false. He denied Patient A did not attend a consultation with him on 28 June 2012. He did not answer the allegation that Patient A did not seek a mental health care plan from Dr Knowles rather he said: The plan was prepared "for Patient A following counselling on many previous occasions." He denied the GP Mental Health Care Plan dated 28 June 2012 was not prepared in consultation with Patient A on that day. He denied the plan did not accurately reflect Patient A's history, her mental health, or the provision of patient education.
4. In his submission, provided post hearing, Dr Knowles submitted the following:

• The plan was prepared after counselling Patient A.
• The plan contained information which she told him (we note it is not alleged the information was imparted during a counselling session on 28 June 2012).
• The counselling sessions were of an informal nature and his wife was also usually present. He made notes but had not been able to find them.
• He conceded he "had not strictly complied with the Medicare Benefits Schedule Book requirements for billing item 2717".
• He agreed the document was created on 12 October 2015 which was more than 3 years after the item 2717 claim was made. He had typed it from the hand written version he had made on 28 June 2012. (We note that the "Statement of Agreed Facts" document (exhibit Y1) says at paragraph 16, in relation to Particular 2 of Complaint One "The Practitioner did not write any consultation notes regarding the alleged consultation with Patient A on 28 June 2012.)

1. We pause here to note the statement by Dr Knowles above, that his wife was also usually present during informal counselling sessions. The fact she was present is, to us, a greater indication that the context was a social occasion given the parties were all friends, outside of a work relationship.
2. We accept the evidence of Patient A, that she did not seek Dr Knowles to prepare a GP Mental Health Plan on 28 June 2012 or at any other time. We find the evidence of Patient A as compelling given her reaction to discovering on her Medicare records that she had the plan shown in her medical history. She was very concerned about the impact upon her life insurance policy (including a critical illness provision). (i.e. that if she was to die the insurance company would deny her children's claim on the policy for her non-disclosure of a history of mental ill health). We also accept her version of the conversation which she says took place with Dr Knowles when she confronted him with her discovery.
3. We accept the evidence of Patient A that some of the information on the GP Mental Health Plan document prepared by Dr Knowles was incorrect. That information included that she had "never smoked" and that she had a "complex history of early adult sexual abuse by her cousin". She also denied she was abused in her first marriage. (We note the term abuse is a broad descriptor and that Patient A in her evidence understood it to mean physical abuse). We accept Patient A's evidence that she did not discuss the information set out in the GP Mental Health Plan document with Dr Knowles' wife.
4. We do not accept that the complaint made by Patient A was a form of retribution for her having her employment with Dr Knowles terminated.
5. Dr Knowles could produce no clinical notes about the mental health of Patient A, or that he had counselled her or his diagnosis of her mental health. He claimed to have made hand written notes which he kept separately. In the circumstance of Patient A, we can see no acceptable explanation for Dr Knowles keeping any medical records separately for Patient A. We accept the assertion to Patient A, made in the conversation related by her, that there were no medical records in the "Medical Director Programme" which might jeopardise her life insurance.
6. On 13 October 2015, Dr Knowles, through his lawyers, wrote to the HCCC attaching a copy of the GP Mental Health Plan for Patient A, which document appears on page 7 of Tab 15 of exhibit XA1. The letter of 13 October 2015 contains the following statements: "As to the background of the matter, Dr Knowles and his wife have known the complainant for a number of years. They assisted the complainant in her personal life, as well as providing employment from 4 March 2013 until August 2015. Dr Knowles provided many hours of counselling to (Patient A) which was, for privacy reasons, not recorded in her medical records…. Dr Knowles acknowledges that he failed to make appropriate clinical entries in the patients' record but did so to protect her privacy and not to cause her concern once she had access to her clinical records."

Particular 4

1. This particular alleges Dr Knowles made a false claim for a Medicare rebate by billing Medicare for item 721 and item 723 in relation to a service provided to Patient A on 19 April 2013 where those services were not provided.
2. This Particular is admitted by Dr Knowles to the extent that the claim was made on Medicare as alleged however, Dr Knowles says the rebate claim "was made in error and not falsely made to obtain a financial benefit."
3. The Statement of Agreed Facts (exhibit Y1) between paragraph 19 and 23, (see earlier) notes the concession made that the charges were claimed by Dr Knowles, there was no clinical indication which warranted the preparation of GP Management Plan and Team Care Arrangement for a chronic or terminal medical condition. The consultation was in fact for a Fluvax injection. The Medicare rebate available was item number 23 (consultation at consulting rooms - Level "B"). Medicare item numbers 721 and 723 attract a higher fee than Medicare item 23.
4. Dr Knowles made no submission in relation to this Particular.
5. The records for Dr Knowles claims on Medicare in relation to Patient A show that on 19 April 2013 he claimed for items 23, 721 and 723.
6. Dr Knowles provided no explanation, to which the Tribunal's attention has been drawn as to how the mistake occurred. We note that Patient A's evidence is that it was on 29 April 2015 that she discovered Dr Knowles had charged Medicare for item numbers 721 and 723, as against her name as a patient some two years before. On 8 May 2015 Patient A spoke to Dr Knowles about those charges. The conversation took place on the same day she had discussions with him about the less than he expected payment from Medicare to Dr Knowles at that particular time. On 25 June 2015 Patient A was dismissed by Dr Knowles, from his employment. On that day we accept Patient A's evidence that Dr Knowles told her, in the presence of his accountant, that he was trading insolvent.
7. We are satisfied that prima facie, a claim for the services with item numbers 721 and 723 by Dr Knowles, in relation to Patient A, made 19 April 2013 was false, in the sense that it is common fact that those services were not provided to her. Dr Knowles was at the time using an electronic means of recording and making claims on Medicare. He said the making of the claim for 721 and 723 was a mistake. There is no suggestion Medicare saw it as a mistake or that Medicare did not pay Dr Knowles for the claim. There is no evidence Dr Knowles repaid the mistaken claim. There is no explanation provided by Dr Knowles as to how the mistake occurred. Whilst there is a numerical similarity between the numbers 723 and 23 (the claim made which was the correct one) there is no similarity between number 23 and 721. Again where we may understand an explanation such as: "I thought I typed 23 into the system whereas I had accidently typed in 723", even that explanation would not explain how there was processed by Medicare claims for both items 23 and 723 and 721 all on the same day.
8. We find Particular 4 proved. We cannot, on the evidence before us, accept that the billing was a mistake, as contended by Dr Knowles.

Particular 6

1. This particular alleges Dr Knowles made a false claim for a consultation with Patient B on 26 March 2014. It alleges that Patient B did not attend on Dr Knowles on 25 March 2014, as alleged by Dr Knowles, who said he made the claim on Medicare the following day.
2. It is an agreed fact that Dr Knowles did not write any consultation notes for Patient B for an attendance on 25 March 2014. Dr Knowles denies it was a false claim. He states, in his written submission, that he did not make any clinical or other notes as the patient requested he "does not make notes". We note here that was not precisely his oral evidence about any such request from Patient B. The summation of his oral evidence on this issue was that Patient B was concerned her friend Patient A, who worked at Dr Knowles' practice, not be informed about the treatment she was undertaking (i.e. cosmetic injection of Botox and like substances). Otherwise Dr Knowles alleged Patient B had expressed to him a desire that Dr Knowles not inform her husband of the services which Dr Knowles was providing in the nature of cosmetic procedures.
3. In the submission from the HCCC it is conceded that Patient B's evidence was that "she could not recall" attending upon Dr Knowles on the date charged for the service as item 44. Dr Knowles provided a copy of his appointment book for the 25th March 2014 which showed an appointment for Patient B scheduled at 6pm.
4. We find in relation to this Particular, that the evidence does not establish, on the balance of probabilities, that the claim by Dr Knowles on Medicare, for an attendance by Patient B on 25 March 2014, was false. We so find principally because Patient B was not sufficiently confident about her assertion that she did not attend upon Dr Knowles on that date.

Particular 7

1. This particular alleges Dr Knowles made a false claim for a Medicare rebate for Patient B by claiming items 721, 723 and 2713 on 1 October 2014. The item numbers are for the preparation of a GP Management Plan and Team Care Arrangement and a GP Mental Health Treatment Consultation. It is alleged Patient B did not attend upon Dr Knowles on 1 October 2014; Patient B did not seek a GP Management Plan and Team Care Arrangement; Patient B did not require care from at least three healthcare providers for chronic or terminal medical conditions on that date; AND Patient B did not seek a Mental Health treatment on that date.
2. The allegations are denied by Dr Knowles who says Patient B had a double appointment with him at 11.15 am on 1 October 2014.
3. It is an agreed fact that on 1 October 2014 Dr Knowles did make a Medicare rebate claim in relation to services item numbers 721, 723 and 2713 for Patient B. It is further agreed that item 721 is for an attendance by a medical practitioner for the preparation of a GP Management Plan for a chronic or terminal medical condition AND item 723 is for an attendance by a medical practitioner to coordinate the development of Team Care Arrangements with at least three healthcare providers for a chronic or terminal medical condition. Item number 2713 is agreed to be for a GP mental health treatment consultation. It is further agreed Dr Knowles did not write any consultation notes for the attendance by Patient B on 1 October 2014.
4. In his written submission Dr Knowles relied upon the fact that Patient B's evidence, about the date of this consultation, was that she could not recall attending on that date. Dr Knowles produced a copy of his appointment book for the date which shows a double appointment booked for Patient B at 11.15am.
5. Dr Knowles submits it was not necessary for Patient B to request he prepare the documents referred to in item numbers 721 and 723. He submits the documents could be prepared with a view to finalising at a future date. We do not accept that it was the thrust of his evidence, that he was acting on that basis. However, assuming that was correct, he does concede he should not have billed Medicare at that time. He submits the consequence of that, is not, that there was no basis for preparing the documents.
6. Dr Knowles conceded that, the document claimed to be prepared on 1 October 2014, was in fact created by him on 3 May 2016. The GP Management Plan and Team Care Arrangement document at page 9 of Tab 16 exhibit XA1, purports to be created 1 October 2014, yet it has reference to medications prescribed on 3 May 2016 on the first page of the document. Dr Knowles explanation is that it was created on 3 May 2016 from a hand written copy which had been created on 1 October 2014.
7. Dr Knowles denied he had fabricated the consultations.
8. The GP Management Plan and Team Care Arrangement document, said to be created on 1 October 2014, incorrectly (according to the evidence of Patient B) records she had "never smoked". Further the document records the Primary Diagnosis/Main Issue to be "Seasonal asthma : hypertension" yet there is no prescription for any medication which would address either of those diagnosed conditions. Patient B was in fact attending another medical practitioner in relation to those conditions. Dr Knowles says he was unaware of that.
9. Dr Knowles evidence includes, that he did not refer Patient B to the specialist medical practitioner (respiratory Physician) referred to in the document.
10. We agree with the submission of the HCCC that the following further deficiencies/criticisms can be made about the GP Management Plan and Team Care Arrangement document which was created by Dr Knowles:

• For the Team Care Arrangement there are not three healthcare providers identified.
• The blood pressure reading recorded as 150/111 is conceded to be that taken on 27 August 2013. That record (as set out on page 3 of Tab 16 of exhibit XA1) states it was taken at a time while Patient B was laughing. When her blood pressure was taken lying down it was 140/78 with a pulse rate of 68. On the subsequent 4 consultations (ending 25 September 2013), recorded in her medical records produced by Dr Knowles, there is no recording of her blood pressure, heart rate, BMI or blood glucose.
• The document says "yes" next to the words "Copy of Management Plan provided to other providers:" That had not occurred.
• The "Consent to Prepare Management Plan" portion of the form has not been signed and dated by Patient B or anybody.
• The document was actually created on 3 May 2016, a few days before it was provided to the HCCC on 10 May 2016.

1. Dr Knowles' explanation for the disparity in dates entered on the document is that he prepared it by typing onto the computer record, on 3 May 2016. He agreed that the computer automatically populated portions of the form such as the medication history. He asserted he had created the computer version of the form by having regard to a hand written version of the document which had been created in October 2014.
2. Dr Knowles' explanation, as to why he did not have Patient B sign the GP Management Plan, was that he didn't think that was necessary. He understood consent was effectively given by the patient attending upon him in consultation. Given the way in which the form is constructed we cannot see how Dr Knowles could have reasonably reached such a conclusion.
3. It is reasonable to conclude, based upon the concessions made by Dr Knowles in his oral evidence about the consultation on 1 October 2014, that he conducted no examination of Patient B, which was reasonably required, if Dr Knowles was to create a GP Management Plan and Team Care Arrangement. There was no blood pressure recording undertaken, yet hypertension is listed by Dr Knowles as a "Primary Diagnosis/Main Issue." There is no reference to any history of medication use/prescription for asthma.
4. The form, under the heading "Past History (active and non-active):" had inserted the words: "None recorded at patients request." In his oral evidence Dr Knowles conceded there was an inconsistency between the use of those words and the other aspects of Patient B's medical conditions, disclosed in the document.
5. In his oral evidence Dr Knowles agreed there was no requirement for him to have created the computer record of the GP Management Plan and Team Care Arrangement, which he did on 3 or 4 May 2016. He agreed he could have provided the hand written version of the document.
6. Notwithstanding that Dr Knowles was able to produce the hand written copy of the Better Access Mental Health Care Plan, he said he had created on 29 June 2011 for Patient B, he was unable to produce the hand written version of the GP Management Plan and Team Care Arrangement he said was created by him on 1 October 2014. Further, he had not attempted to enter the Better Access Mental Health Care Plan onto the electronic record in the same way as he had for the GP Management Plan and Team Care Arrangement, which had been dated 1 October 2014.
7. In relation to the counselling said by Dr Knowles to have been provided to Patient B on 1 October 2014, Dr Knowles gave no further information than: "it was for her anxiety". Patient B denied she had received any counselling or other treatment by Dr Knowles for anxiety or for any other potential mental health issue she may have been diagnosed to have. We find and accept that:

• if Dr Knowles had provided any form of therapeutic therapy to Patient B she would have been cognisant of that occurring.
• That Dr Knowles would have informed her he was providing counselling to her.
• That he would have discussed with her whether it was appropriate for him to be providing counselling to her for anxiety and other mental health issues or whether she would prefer some other qualified practitioner to undertake that therapy with her.

1. We conclude, the evidence establishes to our satisfaction, that Particular 7 is established. We find that there is a preponderance of evidence supporting the claim that Dr Knowles claim for services listed as Medicare items 721, 723 and 2713 were not made by Dr Knowles for services provided by him. As such we find Dr Knowles knew he was making a claim for Medicare rebates, for the stated services, in circumstances where he knew, or ought to have known he was not entitled to make same. We find that the GP Management Plan and Team Care Arrangement forms were created in an attempt to justify the claims made on Medicare and the remuneration received. As such we find Dr Knowles made a false claim.

Particular 8

1. This particular alleges Dr Knowles prepared a false GP Management Plan and Team Care Arrangement on 1 October 2014 for Patient B. It is alleged it was false because:

• Patient B did not attend upon Dr Knowles on that date.
• It was false because Patient B did not seek a GP Management Plan and Team Care Arrangement on 1 October 2014.
• It was not prepared in consultation with Patient B on 1 October 2014.
• It is false because it does not accurately reflect Patient B's consent for referral to another practitioner.

1. This Particular, to a large extent, duplicates the Particular 7 claim. We have made findings in relation to Particular 7 which reflect our acceptance of the evidence of Patient B that she did not ever ask Dr Knowles to prepare a GP Management Plan and Team Care Arrangement for her. Further, we accept that she was not told by Dr Knowles that he had prepared a GP Management Plan and Team Care Arrangement for her and had made a claim for rebate for same from Medicare.
2. We find the evidence is not clear enough to satisfy us that Patient B did not attend upon a consultation with Dr Knowles on 1 October 2014. We are satisfied though, that if she did attend upon him on that day it was not for the purpose of having a GP Management Plan and Team Care Arrangement created for her.
3. We are satisfied the GP Management Plan and Team Care Arrangement form does not contain the consent of Patient B to be referred to another practitioner.
4. We are satisfied that on a date either on or after 1 October 2014 Dr Knowles prepared a false GP Management Plan and Team Care Arrangement for Patient B in the circumstances set out above.

Particular 9

1. This particular alleges Dr Knowles made a false claim for a Medicare rebate by billing item 44 for a service which was not provided. The item 44 billing was made on 18 February 2015 for the service said to have been delivered on 17 February 2015 to Patient B. It is alleged that Patient B did not attend upon Dr Knowles on that day.
2. The claim relies on two features which need to be established. The first part is that Patient B did not attend upon Dr Knowles on 17 February 2015. The second part is that Dr Knowles did not provide the item 44 service namely; "a consultation at his consulting rooms Level D".
3. In his Statement contained in exhibit XR1 Dr Knowles denies this allegation. He says Patient B did attend on him at 5.45 pm on 17 February 2015.
4. The evidence of Patient B is crucial in order for us to determine her evidence should be preferred to that of Dr Knowles on this allegation.
5. Dr Knowles stated the consultation dealt with her complaint about low mood and self-esteem and to discuss further cosmetic work. Patient B stated that she had no recollection of attending to see Dr Knowles on that date. Having had put to her, Dr Knowles assertion that the consultation consisted of discussing a complaint by her of low mood and self-esteem and to discuss further cosmetic work, Patient B said she was more confident now, that what she had said about the consultation not occurring was correct. The principle reason for that certainty was that, as she stated: "after the Voluma treatment (in respect of which she had an adverse outcome) I had no interest in going back to Dr Knowles." We note the medical records for Patient B show that the treatments to her eyes took place in 2013 and the adverse reaction resulted in her having to have treatment at Dr Knowles' surgery and then to attend upon another cosmetic medical practitioner in Sydney (recommended by Dr Knowles), who was able to repair the adverse reaction in her eye area.
6. Patient B was also confident in her assertion that she had not sought, nor had she received, therapeutic or clinical counselling from Dr Knowles in relation to any aspect of her mental health.
7. It is an agreed fact that Dr Knowles made no clinical record of the consultation in the medical records he kept for Patient B.
8. In a written response to the HCCC, prior to the hearing and provided by his lawyer, Dr Knowles provided his answer to a question asked by the HCCC about the consultation, said to have occurred on 17 February 2015 (see Tab 30 exhibit XA1). He provided the following response. "The consultation was provided to advise (Patient B) regarding a complaint that her face looked tired and to elevate her mood and self-esteem. She wanted to consider further work on her face by either Dr Knowles or" (the Sydney cosmetic practitioner she had attended upon in 2013 to repair the adverse reaction she experienced having had Voluma injected into the area around her eyes). "Again, the patient stressed that the consultation remain entirely confidential. It also involved discussing her low mood, anhedonia and anergia. As her good friend was (an employee of the practice)" (Patient A), "she was concerned about privacy issues."
9. In relation to those assertions by Dr Knowles we prefer the evidence of Patient B in the following facts:

• That she did not seek or receive counselling from Dr Knowles for any aspect of alleged low mood, anhedonia, and/or anergia.
• She did not seek any further facial cosmetic procedure from Dr Knowles after the adverse outcome from the injection of Voluma to her eye area.
• That she was not concerned about her privacy, in connection with facial cosmetic procedures she had undertaken with Dr Knowles, and the prospect of Patient A seeing a record of same in the medical records kept by Dr Knowles in relation to those treatments.
• Implicit in her evidence is that she did not seek, nor did she understand she received, clinical counselling from Dr Knowles.

1. In the hearing of the complaints made about Dr Knowles in relation to the alleged provision by him of counselling for both Patient A and Patient B, we have taken Dr Knowles to be asserting that what he described as "counselling" was in fact a medical treatment. It was not in the nature of a passing discussion which might take place between good friends or acquaintances who had frequent contact as friends or customers, outside of a medical consultation room.
2. We accept the submission of the HCCC that it can reasonably be inferred, if Dr Knowles kept any notes of the consultation of 17 February 2015, he would have kept them in the same secure location (hanging file) he kept the hand written Better Access Mental Health Care Plan he had written for Patient B and dated 29 June 2011, a document he was able to produce to the HCCC under cover of letter from his solicitor dated 8 August 2016.
3. We are satisfied on the balance of probabilities, that Patient B did not either attend upon Dr Knowles on 18 February 2015, as he has claimed, and/or she did not attend upon him for the reason stated by Dr Knowles. We therefore find this Particular established.
4. We now turn to consider the HCCC case that: "(a) The conduct in any of Particulars 1, 2, 4, 6, 7 and/or 9 involving an "inappropriate billing of Medicare item numbers, for services not provided to patients, is repeated and relied upon in combination, amounting to unsatisfactory professional conduct." And; (b) The conduct in any of Particulars 3 and/or 8 involving preparing plans, which were not prepared in consultation with patients, is repeated and relied upon in combination amounting to unsatisfactory professional conduct."
5. Dr Spark opined that if the evidence of Patient A was accepted, in relation to the alleged creation of a false record by Dr Knowles, being a GP Mental Health Care Plan for Patient A dated 28 June 2012, then "such conduct falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The departure is significantly below the standard but it does not invite my strong criticism. I do not believe this to be an offence of sufficient magnitude to warrant a harsher level of criticism."
6. That opinion we found difficult to accept.
7. In his oral evidence Dr Spark was asked why he had reached the conclusion that the behaviour did not invite his strong criticism. Further why he had said: "I do not believe this to be an offence of sufficient magnitude to warrant a harsher level of criticism." His reason for so concluding, was that the conduct was an isolated event. There was not a pattern of continuing preparation of false documents. Effectively he did not consider Dr Knowles was making a habit of creating false documents.
8. In relation to the reason provided by Dr Spark, as noted immediately above, we find firstly, it is an assumption, unwarranted in the circumstance of this case. It is unknown whether there are any other examples of Dr Knowles seeking payment for Medicare item numbers relating to the creation of Better Access Mental Health Care Plans and/or GP Management Plan and Team Care Arrangements for patients, where the patients were unaware of the creation of same, where no written consents were given and they were false in the sense of not being necessary for the treatment of the patient. We find it is unnecessary to establish Dr Knowles had created a habit of conducting his practice in the manner described. In any event how many examples would be required to establish there was a "pattern of continuing" behaviour, to adopt the words of Dr Spark.

Complaint Two

1. This complaint is that Dr Knowles is guilty of professional misconduct under section 139E(b) of the National Law in that he has 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.
2. The facts/particulars to support this complaint are the particulars set out for Complaint One. The background facts set out in Complaint One are also repeated.
3. Our findings in relation to Complaint One illustrate that Dr Knowles has engaged in more than one instance of unsatisfactory professional conduct. We are also satisfied that, when the instances are considered together, they amount to conduct of a sufficiently serious nature as to justify the suspension or cancellation of Dr Knowles' registration.
4. We will consider what Protective Orders need to be made in this matter after determining the second of the Actions brought by the HCCC against Dr Knowles.

The 2019 Complaint in proceeding number 2019/00269860

Complaints One to Nine

1. The HCCC moved on complaints One to Nine inclusive in the Application for disciplinary findings and orders filed on 29 August 2019. The complaint for each of those nine Complaints is identical and is as follows: Dr Knowles "is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/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 medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or (ii) Engaged in improper and/or unethical conduct relating to the practice or purported practice of medicine."
2. The background facts for the complaint recite that Dr Knowles practised as a GP in a large regional city in NSW between 2003 and at least 2018.
3. In each of the nine Complaints, the first Particular set out is that Dr Knowles "did not conduct appropriate assessments" of the patient. That Particular is denied by Dr Knowles who said he did undertake assessments, however, he did not record that in his notes.
4. In respect of each of the complaints One to Nine, the HCCC relies upon the expert report prepared by Dr Harry Nespolon and dated July 2019. Further the HCCC submits there are similar aspects of each of the nine complaints, which it says, leads to the inevitable conclusion that no assessment was made or that no adequate assessment was made. The common indicators are said to be:

• There was either no recording or no adequate recording of an assessment.
• There was no appropriate assessment where there appeared to be any assessment.
• In referrals made by Dr Knowles to specialist medical practitioners there is a dearth of information to support any assumption that an adequate or appropriate assessment had occurred.
• There is little or no supporting evidence to conclude that appropriate assessments have been conducted over the period of time the patient has been under the care of Dr Knowles.

1. In relation to the last dot point above, the HCCC says that the evidence of Dr Nespolon was that "in prescribing opioids and S4 drugs you need to set expectations and time limits, check for improvement, take history, conduct examinations, investigations, look for any contraindicators, and with elderly patients consider things like falls risks." The HCCC says that the notes in large part do not contain such information.
2. In relation to "inappropriate prescribing", the HCCC submit a global submission can be made. It says one of the key issues identified by Dr Nespolon was that narcotic analgesia was prescribed to patients who in his view had a history of drug dependence or abuse.
3. In relation to Complaints One to Nine, Dr Knowles, in his Reply document, has admitted many of the particulars to the complaints. He admits in relation to complaint One:

• Particular 2(e) that he "prescribed OxyContin and codeine phosphate, both Schedule 8 Type C drugs of addiction, to a drug dependent person without the proper authority of the Secretary of the Ministry of Health, contrary to s 28(3) of the Poisons and Therapeutic Goods Act 1966 ("PTGA")."
• Particular 2(f) that he "failed to adequately respond to indications that the patient was drug dependent."

1. Complaint One relates to Patient A who was born 28 July 1980. Patient A attended upon Dr Knowles between 19 December 2013 and 8 October 2018.
2. It is alleged that between those dates Dr Knowles (a) did not conduct appropriate assessments; (b) did not take timely steps to obtain specialist assistance. Further, It is alleged between 1 February 2016 and 31 January 2017, Dr Knowles prescribed the medication in Schedule A for Patient A in circumstances where: (a) it was not appropriate to prescribe diazepam and codeine phosphate in combination; (c) there was insufficient clinical justification to continue to prescribe; (d) the quantity was excessive; (e) the practitioner prescribed oxycontin and codeine phosphate, both Schedule 8 Type C drugs of addiction, to a drug dependent person without the proper authority of the Secretary of the Ministry of Health, contrary to section 28(3) of the "PTGA"; (f) the practitioner failed to adequately respond to indications that the patient was drug dependent.
3. As stated earlier, Dr Knowles admitted particulars 2(e) and 2(f) and denied the balance of the particulars for this complaint.
4. The evidence relied upon by the HCCC to support the Complaint One includes Patient A's Records which appear at Tab 43 exhibit A1 and the evidence of Dr Nespolon at pages 71 to 73 at Tab 20 exhibit A1.
5. There is no issue raised by Dr Knowles about the medical records for Patient A. The records are voluminous.
6. Dr Nespolon stated in his report that Patient A consulted Dr Knowles for 5 years between 2013 and 2018. Between 1 February 2016 and 31 January 2017 she was prescribed Codeine Phosphate 30 mg and Diazepam 5 mg regularly for Anxiety/Depressive syndrome, OCD. Dr Nespolon sets out a detailed description and history of the prescription for this patient over the history of her consulting with Dr Knowles. Throughout the description of relevant events the following are examples of comments Dr Nespolon makes:

• There is no stated reason for the great escalation in the dose. This continues without any clinical review.
• Throughout this time Dr Knowles continues to prescribe high dose diazepam without any medical assessment.
• There is no treatment plan. If there was this might have considered psychological therapy.
• The patient's lack of commitment to treatment should have been a consideration regarding the ongoing supply of medication.
• Dr Knowles, using the template, believes that the patient does meet the definition of a drug dependent patient, acknowledges that he does not have an in-date authority and continued to proceed without an in-date authority.
• The patient then sees another doctor and is diagnosed as "codeine dependence."

1. Dr Nespolon concludes the answer to the question: "Did Dr Knowles conduct an appropriate assessment of this patient prior to prescribing Codeine Phosphate, diazepam and oxycontin?" He said: "With regard to prescribing oxycontin, codeine and diazepam the conduct did fall below the standard. The conduct was a departure from the standard that was significantly below that standard and that was a significant departure from the standard and invites strong criticism".
2. Dr Nespolon was asked: "Did Dr Knowles make appropriate (and timely) referrals for specialist assistance when prescribing any of the above drugs to this patient?" Dr Nespolon opined as follows: "Dr Knowles referred the patient in 2016 to a pain specialist. Dr Knowles acknowledged that the patient had her codeine addiction for over 15 years. The referral was not timely, Dr Knowles should have sought assistance given that he demonstrated that he was incapable of providing this service to the patient, years before hand. Management of codeine phosphate dependence should be a skill that general practitioners possess. The conduct did fall below the standard. The conduct was a departure from the standard and was significantly below that standard and was a significant departure from the standard and invites strong criticism".
3. Question three was: "Did Dr Knowles prescribe each of the above drugs to this patient for the appropriate therapeutic purpose?" Dr Nespolon responded as follows: "Given the paucity of medical notes it is difficult to know for what purpose the long-term, high dose, diazepam was being prescribed. The codeine was being prescribed for a codeine addiction. This is not an appropriate purpose. The conduct did fall below the standard. The conduct was a departure from the standard and was significantly below that standard and was a significant departure from the standard and invites strong criticism".
4. Question Four was: "Did Dr Knowles prescribe each of the above drugs to the patient in an appropriate quantity?" Dr Nespolon replied: "The doses and frequency were excessive. The conduct did fall below the standard. The conduct was a departure from the standard and was significantly below that standard and was a significant departure from the standard and invites strong criticism".
5. Question Five was: "Was it appropriate for Dr Knowles to prescribe benzodiazepines to this patient in combination with S8 drugs?" Dr Nespolon responded: "Given the high doses of both opiates and benzodiazepines this put the patient (at risk) of having a significant adverse outcome. The conduct did fall below the standard. The conduct was a departure from the standard and was significantly below that standard and was a significant departure from the standard and invites strong criticism".
6. Question six was: "Was it appropriate for Dr Knowles to prescribe S8 drugs to this patient without an authority under s28 of the PTGA 1966?" Dr Nespolon responded: "Dr Knowles acknowledges that the patient should have had an authority. The conduct did fall below the standard. The conduct was a departure from the standard and was significantly below that standard and was a significant departure from the standard and invites strong criticism".

Oral evidence of Dr Nespolon

1. Dr Nespolon gave oral evidence in the hearing. He presented as a very impressive witness. He was quick to answer any question or proposition put to him. He presented as confident in his knowledge and the opinions he provided. There was no challenge to his expertise or integrity. He provided a very comprehensive report which was admitted to evidence without challenge.
2. Dr Nespolon was cross-examined by counsel for Dr Knowles. The questions were very limited in number. He was asked if he had given evidence in other Tribunal hearings involving GP's prescribing Schedule 8 and Schedule 4 drugs. He confirmed he had. He agreed that some GP's gave up the right to prescribe those drugs.
3. Dr Nespolon was also asked questions by members of the Tribunal.

Oral Evidence of Dr Knowles

1. Dr Knowles gave oral evidence in relation to the 2019 Complaints. He said that in April 2019 he had surrendered his right to prescribe Schedule 8 and Schedule 4 drugs. He said, in this case, (the 2019 Complaints) he conceded severe deficiencies in his record keeping. He said he had undertaken a course in an attempt to improve that aspect of his practice. He has also discussed it with his supervisors.
2. Dr Knowles was cross-examined about the 2019 Complaints. He was taken to some contradictions between his denials in relation to Patient A at page 4 paragraph 2(a), (b) and (c), of his Reply document (exhibit R1) and what he had said in his letter of 29 July 2018 at point 1. He agreed that in that letter he had acknowledged that his prescribing was below standard. He was taken to another document which was set out at Tab 27 of exhibit A1. It was put that he was there saying, in his own document, that all his prescribing was below standard. He replied "It was a general statement only".
3. Dr Knowles said he now accepts it is inappropriate to prescribe opioids and benzodiazepines together. He said he remembered in 2014 being aware that within the profession there was concern about that type of prescribing. He said that in 2016 he held that concern when prescribing. He would not prescribe in that manner today.
4. Dr Knowles said his prescribing changed in 2017. At that time he was involved with a Professional Services Review (PSR).
5. Asked about his work hours when he practised in 2017, Dr Knowles said he worked as a sole practitioner and saw 50 to 60 patients a day. He worked 12 hours without a break. He remembered that in January 2017 he had been the subject of a Medicare review of his billing. There was an allegation that he had seen more than 80 patients a day for more than 20 days in a year. This had been alleged in relation to the 2014 year.
6. In 2017, when asked to produce his medical records, he said he was horrified when he reviewed them and found the records were not adequate. He said he was able to retain detail of patients' medical conditions in his head. He agreed that if his records did not show an assessment of a patient was carried out, then it did not occur.
7. Dr Knowles agreed that in 2017 Professor Quinliven had asked for his medical records. He agreed that when he sent those records, he did not say that some records had been reconstructed. He put many hours into reconstructing the records. He denied he had reconstructed the records in an endeavour to deceive. He was taken to some examples of the reconstructed records. He agreed that he had said to the PSR Board when the question of non-contemporaneous notes being recorded by Dr Knowles in his patients' records was raised with him, that he considered contemporaneous to mean "up to 12 months". He said he did not now adhere to that view.
8. Dr Knowles was asked what training he had undertaken in relation to management of pain in patients since 1990. He said he had done no specific training however he had discussed it with other colleagues at Regional training sessions.
9. Dr Deon Heyns is a supervisor for Dr Knowles. He provided a report dated 26 February 2020. That report forms part of exhibit R2. The report shows very satisfactory performance by Dr Knowles as a GP in a practice in which Dr Heyns is a member. He concluded the report saying: "We are particularly grateful to have him, as there are a huge shortage of GP's in the area." "To get a GP with his level of experience is to the benefit of our whole community."
10. Dr Heyns gave oral evidence. Dr Heyns had not seen the complaints before this Tribunal about Dr Knowles. He had seen a Mental Health Plan which had been prepared by Dr Knowles and he said it was completed and it was done with referrals to specialists. It was adequate.
11. There was nothing about the evidence of Dr Heyns which caused us any concern. He was certainly supportive of Dr Knowles as he had seen his work while he has been supervising him.
12. Dr Knowles also relied upon the evidence of Dr Lenkic. He had also provided a report in relation to Dr Knowles. The report forms part of exhibit R2. He is a supervisor of Dr Knowles. He has supervised him since May 2019. At that time Dr Knowles commenced to work at the practice conducted by Dr Lenkic. The report is very supportive of the way in which Dr Knowles is observed to be practising and of the patient acceptance of his work. He emphasised the great need for GP services in the area where he practises on the mid North Coast of NSW.
13. Dr Lenkic gave oral evidence. He told the Tribunal that in the area where he practises, they turn away up to 30 people a day as they cannot service them. There are several doctors working in the practice at the same time. He said he finds Dr Knowles a very satisfactory GP.
14. Complaints One to Nine inclusive allege Dr Knowles "is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law". We find that in relation to those complaints, in each and every one of same, there is overwhelming evidence that Dr Knowles "engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience."

Complaint Ten

1. Complaint Ten alleges as follows: Dr Knowles "is guilty of unsatisfactory professional conduct under section 139B(1)(b) and/or (l) of the National Law in that the practitioner has: (i) contravened a provision of the Regulations under the National Law and/or; (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine."
2. The complaint addresses inadequacy, on the part of Dr Knowles, in relation to the Patients A to I in Complaints One to Nine and the making of clinical/medical patient records for each on those patients.
3. Dr Knowles admits Complaint Ten.

Complaint Eleven

1. This Complaint alleges Dr Knowles "is guilty of unsatisfactory professional conduct under section 139B(1)(a), (b) and/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 medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or; (ii) Contravened a provision of the Regulations under the National Law and/or (iii) Engaged in improper or unethical conduct relating to the practice or purported practice of medicine."
2. The background to the complaint is stated as follows: "On approximately 8 December 2017, the practitioner received a Notice dated 7 December 2017 issued under sect 89B of the Health Insurance Act 1973 (Cth) to produce documents to the Professional Standards Review ("PSR)("the Notice). The Notice asked the practitioner to produce his complete clinical patient records for 129 patient records for Patient J to Patient R."
3. The Particulars for each of the patient records for Patient J to Patient R are the same and are as follows: "On 25 January 2018 the practitioner produced his medical records for Patient J to Patient R in response to the Notice in circumstances where: (a) The practitioner provided a medical service on the dates set out in column 1 of schedules (J to R); (b) The practitioner received the Notice on about 7 December 2017; (c) The practitioner made entries in the records on the dates set out in column 2 of schedule (J to R); (d) The practitioner contravened clause 8(1) of the Regulation in that the records were not made contemporaneously with the provision of the medical service or as soon as practicable afterwards; (e) The practitioner failed to inform the PSR on 25 January 2018 that the records were not made contemporaneously."
4. The HCCC then provided schedules for each of the nine patient records specified in the Particulars.
5. Dr Knowles, in his Reply to the Complaints said: "I admit particulars 1 to 9 with respect to patients J to R."
6. Dr Knowles, in answer to this Complaint, said in his Statement dated 4 February 2020: "I acknowledge that these records were not contemporaneous; however, as elsewhere stated, this was done for the purpose of self-education and reflection and not in an attempt to mislead or deceive the Director. I gave evidence about my record keeping and failures before the Section 150 hearing convened at the Medical Council of New South Wales in October 2018."
7. Dr Knowles in his Statement of 4 February 2020 document, further provided an explanation for how his record keeping fell to an unacceptable level. Under the heading "Circumstances leading to my Conduct", Dr Knowles said, inter alia, as follows. He explained he had conducted a practice as a sole practitioner. It was a very busy practice with a large cohort of patients. The range of medical conditions with which patients presented was very varied. He said in some ways the practice was not unlike an emergency department at a hospital. He said he did have an appointment system for seeing patients, however it was only a guide for who he saw. Other patients presented themselves as well. He acknowledged that he was not able to complete his medical records. He tried to type the records himself however that was not successful. He found his records for treating patients in an after-hours clinic gave him the ability there, to make better records. He felt in his ordinary surgery work he had spent too much time examining patients rather than making notes.
8. The HCCC submitted that "whether Dr Knowles was attempting to deceive or mislead the PSR is a relevant consideration in terms of also evaluating his claim that he always intended to make better records than he did. It is also relevant, submits the HCCC, to whether the Tribunal is satisfied that in recreating the records the respondent engaged in improper or unethical conduct."
9. The HCCC submits that there are nine aspects of the evidence which point to it being more probable that the action of Dr Knowles, in altering or adding to his patients medical records, was not self-education, rather a state of panic that came upon him when asked to provide his patients medical records in circumstances where he knew the records were inadequate by a significant margin. The HCCC submits the Tribunal would find the action of Dr Knowles, in adding to the records, was to make the record look as though it was created contemporaneously with the notes, he had in fact created. It submits the clear inference is that he was hoping not to be discovered in his actions.
10. The HCCC pointed to the report provided by Professor Quinlivan of 2 July 2018 where she gave examples of non-contemporaneous medical notes for some patients. The HCCC submits that the evidence of Dr Knowles was that he had not really been given an opportunity to explain to her the circumstances in which that occurred. It says that Professor Quinlivan had raised it as a concern in her letter of 12 April 2018, which is in evidence at Tab 14 of exhibit A1. In that letter, addressed to Dr Knowles and his lawyer, Professor Quinlivan clearly and accusingly, said she would like to discuss with him "your explanation as to why many patient records for the sample of services rendered during the review period, appear to have been created non-contemporaneously in January 2018 (after you had received the Notice to Produce, following a request for an extension of time and just prior to you producing the records to PSR)."
11. The HCCC says the above evidence gives rise to an inevitable conclusion that Dr Knowles was provided with clear and ample warning of the accusation being framed about the medical records of patients he had provided to the PSR. The HCCC submits his explanation for not explaining to Professor Quinliven the circumstances in which that occurred because he was not given an opportunity to do so in a timely way strains credulity.
12. Without repeating all the submission of the HCCC we agree that, on the balance of probabilities, it is more probable than not, that Dr Knowles altered the records in a clumsy attempt to cover his failure to make proper and contemporaneous medical records for the patients in relation to whom the PSR had sought his records.

Complaint Twelve

1. The Complaint is that Dr Knowles "is guilty of professional misconduct under section 139E of the National Law in that the practitioner 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."
2. The Particulars relied upon are as follows: 1. Particular 2(b) of Complaint Three and Particular 2(c) of Complaint Six are repeated and relied upon individually. 2. Complaint Eleven is repeated and relied upon individually. 3. The Particulars of Complaints One to Eleven are repeated and relied upon cumulatively.
3. Having reviewed the evidence, which we have set out in these reasons we have reached the conclusion that this complaint is established. The evidence of Dr Nespolon is overwhelming and describes a regime of prescription for a significant number of patients which was deserving of strong criticism.
4. Dr Knowles has acknowledged failure in relation to a number of the Complaints numbered One to Eleven.
5. The conclusion we have reached, in relation to Complaint Eleven, really challenges Dr Knowles' integrity. We have already addressed matters of integrity in the conduct of Dr Knowles when we addressed the 2018 Complaint.
6. We are satisfied Complaint Twelve has been established.

Protective Orders to be made

1. Each of the HCCC and Dr Knowles have provided a minute of the protective order they would seek in the event of the Tribunal concluding it is satisfied the Complaints are established.
2. The HCCC in its minute seeks that Dr Knowles' registration is cancelled. That a minimum review period be set at 12 months. That Dr Knowles pay the HCCC costs of the proceeding.
3. Dr Knowles in his minute seeks that the Tribunal impose a reprimand on Dr Knowles. That conditions on his registration be imposed which are extensive and very restricting on his practice. The proposed conditions include:

• practising for a maximum of 35 hours per week for no more than 5 days in any one week.
• Treating no more than 35 patients in any one day.
• To practise only in a group practice (at least 2 other practitioners).
• To practise where the medical records of patients he sees are shared with the other practitioners in the practice.
• To practise only when there is another practitioner present at the site where Dr Knowles is working.
• Not to prescribe or possess Schedule 8 or Schedule 4 drugs/medications.
• To submit to supervision.

1. Dr Knowles has listed other conditions which he would be prepared to subject himself to in order to continue practising as a medical practitioner.
2. In his oral evidence Dr Knowles told the Tribunal, effectively, that he would like to continue to work, in any capacity which the Tribunal would permit, should the Complaints heard by the Tribunal be established.
3. During the hearing we heard evidence given by a medical practitioner who operates the medical practice in which Dr Knowles currently works as a GP. Dr Knowles does not prescribe Schedule 8 and Schedule 4 drugs or medications. We were told of the demand for medical practitioners in the town where Dr Knowles is working on the mid north coast of NSW. Every day the practice is open, people seeking to see a doctor are turned away because the practice is fully booked for the day. The average number of people seeking a service who are turned away each day is 30.
4. The totality of the evidence presented to us in both the 2018 and 2019 Complaints satisfies us that at the time of the hearing Dr Knowles was practising medicine in an appropriate manner and at an appropriate standard.
5. The tension for the Tribunal in framing appropriate protective orders is, on the one hand the seriousness with which we regard the conduct which we have found Dr Knowles engaged in between 2011 and 2015 when he conducted a practice of his own in a different locality to where he now is employed, and the fact that he is now practising in a manner which is protective of the public in an area of NSW with a great need for medical services.
6. Subdivision 6 of Division 3 of Part 8 of the National Law, encompasses sections 149 to 149E inclusive. Those sections set out the Disciplinary powers of the Tribunals [NSW]. The sections set out the power of the Tribunal to impose protective orders which include the power to impose conditions on the registration of the practitioner. Section 149C provides the power to suspend or cancel the registration of a medical practitioner. The power can be exercised where the Tribunal is satisfied the practitioner is not competent to practise his/her profession or where the practitioner is guilty of professional misconduct.
7. Decisions such as Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82], and Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34] inform the application of the range of possible orders.
8. Section 3A of the National Law prescribes that the paramount consideration, in the exercise of a function under the NSW provisions of the Act is the protection of the health and safety of the public. Section 3(3)(c) states, somewhat axiomatically, that restrictions on the right to practise of a registered practitioner are only to be applied where "necessary to ensure health services are provided safely and are of an appropriate quality."
9. The HCCC submits that Dr Knowles' conduct in billing Medicare for consultations of the nature claimed with Patient A and Patient B,(in the 2018 proceeding), which did not occur, are clear and very concerning examples of improper and unethical conduct. It submits that when that conduct is coupled with poor record keeping for many patients (seen in both the 2018 and the 2019 proceeding), with significant issues with drugs of addiction and in some cases, benzodiazepines, together with the prescribing issues demonstrated in the evidence in support of the 2019 proceeding, the case for cancellation of registration is clearly made out.
10. The HCCC relied upon the statement made by Meagher JA, with whom Basten and Emmett JJA agreed, at paragraph [35] of Health Care Complaints Commission v Do [2014] NSWCA 307. There the following was stated. 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 conduct 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. (Our emphasis) His Honour, in support of the above protective principles, referred to Mahoney JA in Law Society of NSW v Foreman (1994) 34 NSWLR 408, 441 who noted public protection: …extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done.
11. It is no longer a consideration that the Tribunal needs to consider the fitness of the practitioner, as at the time of the hearing, for the purposes of finding professional misconduct established (see Chen v Health Care Complaints Commission [2017] NSWCA 186 at [56], [67] and [74] and the judgment of Basten JA).
12. In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten J held at [18]-[22]: The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration. The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, overservicing and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. The suggestion that there must be a two-stage process in undertaking that function was misguided. [15] (Our emphasis)
13. The HCCC submits "the Tribunal's protective, not punitive, purpose and its concern for both the health and safety of the public and reputation of the profession, the exercise of that purpose is determined by a range of considerations". It is important to consider the conduct of Dr Knowles since the time of the conduct, the subject of the established complaints, occurred. Has his conduct improved? Has he illustrated an understanding of the seriousness of the conduct the subject of the complaints? The HCCC further submit it is important to assess why Dr Knowles found himself in the situation where the complained of conduct occurred. Has he changed any of the circumstances in which it occurred and/or does it expose more underlying issues that go to his ability more generally to safely practise medicine in the immediate future?
14. The HCCC submits that given Dr Knowles denials of the complaints made by Patient A and Patient B (in the 2018 proceeding), there is nothing to indicate insight and/or reform. He has voluntarily removed his ability to prescribe Schedule 8 and Schedule 4 substances. He has changed the geographic area in which he works. He has limited his work hours and he works in a group practice in a country area under supervision. He is working now, as if he was an employed medical practitioner rather than working as a sole medical practitioner trying to run a busy GP practice. The fact that he is remunerated by the receipt of an agreed percentage of the billings he makes, does leave some area for concern, albeit moderate.
15. The HCCC submits that given the denials by Dr Knowles in relation to the 2018 proceeding and the consequent indication of lack of insight into what may have been problematic about his conduct in relation to the complaints in that proceeding, there is no evidence to provide the Tribunal with a prospective view of how he might address ethical issues in the future.
16. Although Dr Knowles made no concession about what may have lay behind the conduct in relation to the facts surrounding the complaints of Patient A and Patient B (in the 2018 proceeding), there is evidence from both Patient A and from Dr Knowles, that in 2015 Dr Knowles experienced financial hardship, to the point where he had to dispense with the services of Patient A, as an employee of the practice. On Patient A's evidence, Dr Knowles told her he was trading insolvent at that time. Given that Dr Knowles has not conceded he made false claims upon Medicare because he was in a perilous financial position, we cannot take that into account when considering what his motivation may have been. Speculation in any case has no relevance to the matters to be decided by the Tribunal.
17. In considering Dr Knowles' likely behaviour in the future, the observations of Mahoney JA in Dawson v Law Society of New South Wales [1989] NSWCA 58, are relevant to the Tribunal's consideration of its orders and their purpose, to protect the community: In judging whether an applicant will, in the future, act differently from the past, the Court is not required to act on psychological theories or analyses...As I have said, it is difficult to decide what a man will do and the decision in a particular case is, to a greater or lesser extent, dependent on the Court's assessment of the applicant. And in making that assessment it may draw inferences from what he has done in the past and, in particular, what led to his being removed from the roll. An understanding of that may assist the court to determine what are his standards and his understanding...[of his]...responsibility and, from this, what he is apt to do in the future. And it is perhaps, on this basis that, where what has been done in the past has been sufficient to indicate his 'probably permanent unfitness': Ex parte Lenehan at 422; the court will require 'solid and substantial grounds' for the conclusion that his standards have changed or that he will act differently.' (Emphasis added)
18. The HCCC submitted that while it is likely Dr Knowles underwent a salutary and stressful experience in having to address these present complaints and while any further restrictions or cancellations will be financially burdensome for him, the Tribunal is primarily concerned with the paramount consideration of the protection of the public.
19. The HCCC concluded its submission with the following: "The applicant submits that only an order for cancellation of registration protects the public through general deterrence of other practitioners; by reinforcing high professional standards and denouncing transgressions and maintaining public confidence in the profession."
20. Dr Knowles made submission addressing the possibility of "protective orders" being imposed.
21. Dr Knowles submits that the draconian action of cancelling his registration is not required to protect the public and/or the reputation of the medical profession. He submits that if the Tribunal concludes that some or all of the particulars have been established "it should reasonably take the view that the relatively small number of inappropriate Medicare billings falls at the low end of the range. We note in relation to the last submission that we did not accept that evidence from Dr Spark.
22. In the submission Dr Knowles acknowledges he was suspended by the Medical Council on 16 October 2018. He successfully appealed that decision to the extent that the Tribunal, on 3 April 2019, cancelled the suspension order and imposed conditions on Dr Knowles' registration. Those conditions included that he only work in a group practice, not prescribe Schedule 8 or Schedule 4D drugs, he limit his daily patients and weekly hours of work and that he undergo category B supervision.
23. In the hearing the Tribunal was advised that Dr Knowles had surrendered his right to prescribe Schedule 8 and Schedule 4D drugs. He said he has no intention of prescribing those drugs in the future.
24. Following the suspension Dr Knowles says he could not work until May 2019. Since then he has concentrated his working to practices on the Mid North Coast of NSW. He currently works at one practice only. He has been working under the supervision of two supervisors. His current supervisor also works in the same practice as Dr Knowles. Both supervisors provided positive reports on Dr Knowles' work as a GP under their supervision.
25. Dr Knowles addressed the evidence given by his supervisor who works in the same practice as Dr Knowles. Dr Lenkic informed the Tribunal that in their practice they turn away up to 30 people seeking the services of a GP. Thus, if Dr Knowles is not available to assist in servicing the patients of the practice that number will be expected to increase.
26. Dr Knowles submits that the current employment is radically different to the very busy practice he conducted, as a sole GP, which he said really overwhelmed him. He has had six months where he was not permitted to practise. That has given him time to reflect upon how he had practised as a sole practitioner, in a large rural centre and to consider how he can practise safely.
27. Dr Knowles referred to the current medical crisis created by Covid-19 and the consequent requirement to have as many medical practitioners as possible available to assist should an outbreak occur on the Mid-North Coast of NSW.
28. Dr Knowles submits that when looked at collectively, even if it be assumed all the Complaints are proved, the nature of the complaints are such as ought not attract a mandatory or otherwise cancellation of his registration.

Determination on Protective orders to be made

1. We have considered the submissions made by the parties as above outlined. We consider the findings made about the conduct of Dr Knowles draws him into a category of "very unacceptable conduct". It would be entirely inappropriate to send a message to all in the community concerned with the practice of medicine by registered practitioners, through the nature of the orders we impose, that we do not consider the conduct a serious breach of the obligations of all who practise medicine in this State or nationally.
2. We wish to record the following in relation to our findings in this matter. It is an essential aspect of the conduct of a doctor and patient relationship, that the patient has knowledge of and consents to, the medical treatment to be provided by the medical practitioner to the patient. A number of documents, which we have reviewed in this hearing, have specific provision for written consent to be given by the patient. That provision presupposes a given understanding that treatment of a patient can only be administered with the knowledge of the patient as to the nature of the medical treatment being provided and the clear consent (not inferred) to that treatment. It is axiomatic, in the good practice of medicine, that the nature of the relationship between doctor and patient is intimate and more often than not requires the medical practitioner to touch various parts of the patient's body. In some circumstances it is necessary to break/cut the skin of a patient as part of a medical procedure. To act in that manner, without the clear and informed consent of the patient, provided to the medical practitioner, can amount to an assault, which is a criminal offence, of serious proportion, in NSW.
3. In this case therefore, the provision of a service of counselling by Dr Knowles to Patient A and to Patient B in circumstances where neither sought counselling from him, where he did not tell them he was performing a medical service upon them, in the nature of counselling, or otherwise, and where they provided him with no written consent or verbal consent to undertake that treatment, there is in our view, a fundamental breach of the doctor and patient relationship such that it amounts to the equivalent of performing an operation without consent or authority.
4. We determine that in order to protect the public, in the broadest meaning of those words, we have to either cancel or suspend the registration of Dr Knowles as a medical practitioner. Each of those orders would mean Dr Knowles could not practise medicine. If there is a cancellation of registration then he will have to apply to the Tribunal to permit him to again be registered as a medical practitioner. That application could not be made until the expiration of the exclusion period set by the Tribunal. Even if the exclusion period, which is imposed with such cancellation, is a mere six months, realistically, due to the delay in the Tribunal being able to hear the application, it will take 12 months before he might again be able to practise, assuming his application was successful.
5. Of great concern to us is the findings we have had to make about Dr Knowles' integrity. We are concerned about whether, if given the opportunity to continue practising medicine, even under strict conditions which include supervision, he can practise in a completely ethical manner.
6. If a suspension is imposed then Dr Knowles can resume practice immediately upon the expiration of that suspension term.
7. Further it is possible to impose conditions upon the registration of Dr Knowles which will operate for a period of time stipulated following the resumption of practice after the suspension period.
8. We accept that Dr Knowles is now practising appropriately and has a number of significant conditions attached to his registration pursuant to orders made by this Tribunal on 3 April 2019.
9. We are entitled, in the exercise of the discretion which attends the imposition of protective orders, to have regard to the need of the public on the Mid North Coast of NSW, for the services of medical practitioners, who practise medicine in an appropriate and ethical manner. We have been provided with evidence which establishes that need.
10. We accept, that if permitted to continue practising as a GP, in the manner he is currently practising, the public are protected sufficiently from the former conduct which we have found Dr Knowles engaged in. We note the current practice of medicine, by Dr Knowles, is heavily supervised by other medical practitioners. However, if no suspension or cancellation period is imposed, the broader protections afforded the public through reinforcing their confidence in the provision of medicine in NSW is not provided. Further the repercussions for the practice of medicine, by doctors in NSW, is evident. The deterrent impact on other medical practitioners is also a consideration in the imposition of protective orders. Those practitioners need to know the consequences that flow, if medicine is not practised as the public requires.
11. If the registration of Dr Knowles is cancelled or suspended, a short period of time should be provided where the order is suspended, in order to allow him to hand over his patients to another practitioner and otherwise conclude his business dealings at the practice in which he is employed.
12. We therefore conclude that the following protective orders should be made: 1. The Registration of Phillip James Knowles is suspended until Friday 16 April 2021. 2. Order 1 of these orders is stayed for 21 days from the publication of these reasons and orders. 3. On the expiration of the practitioner's suspension the following conditions are imposed on the practitioner's registration: 1. to practise only in a group practice, of not less than two other registered medical practitioners AND where (i) the patients and patient records are shared between the medical practitioners. (ii) there is always at least one other registered medical practitioner on site. 2. advise the Medical Council of NSW ("the Council") in writing not less than seven days prior to changing the nature or place of his practice; 3. not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined in the Poisons and Therapeutic Goods Act 1966 (NSW) and any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2009 (NSW); 4. not to make any application to review his prescribing restrictions with the NSW Health Pharmaceutical Regulatory Unit without the approval of the Medical Council of NSW; 5. to submit to the supervision by another medical practitioner as appointed by the Medical Council of NSW. If possible, one of the practitioner's supervisors is to be a medical practitioner who has access to the medical records of the practitioner in the practice in which he is engaged. 6. 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 review body: 1. at each supervision meeting the practitioner is to submit to a review and discussion of his practice with his approved supervisor with particular focus on appropriate prescribing practices and compliance with legislative requirements, as well as record keeping; 2. to authorise the Council to provide proposed and approved supervisor/s with a copy of these reasons for decision. 1. To practise no more than 35 hours a week and no more than 5 days per week. 2. to treat or see in consultation no more than 35 patients in any one day except in the case of emergency; 3. not to prescribe for self-medication. 4. to have all care plans, team care plans, mental health care plans, Level C and Level D billings reviewed each month by his supervisor to assess their compliance with Medicare criteria for these claims. Supervisor reports are to include a comment on this compliance with each report to Council. 5. to submit to a Practice based Performance Assessment of his medical practice by a person or persons nominated by the Council. The Performance Assessment is to be held within six months from the date of expiration of the suspension imposed by Order 1 of these orders; 1. to meet all costs associated with the Performance Assessment and any subsequent reports; 2. to authorise and consent to any exchange of information between the Council, Medicare Australia and the Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions; 3. within seven days of commencing any other employment the practitioner is to forward evidence to the Council that he has provided a copy of these conditions to the principal of that place of practice; and 4. to authorise the Council to exchange information with any future persons or organisations at places where he works as a medical practitioner in Australia, regarding any issues arising in relation to compliance with these conditions. 1. While the practitioner's principal place of practice is New South Wales, the Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW) (the National Law). 2. If the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, ss 125 to 127 of the National Law are to apply, and a review of these conditions can be conducted by the Medical Board of Australia. 3. The Registrar is requested to advise the Medical Council of NSW as soon as practicable of Orders 1, 2 and 3 of these orders. 4. The parties are to confer in relation to the Health Care Complaints Commission's application for costs and if an agreement is reached a minute of an agreed order is to be forwarded to the Registrar for referral to the Tribunal. In the event of no agreement as to costs being reached within 21 days from the date of this order, either party may apply for any cost order sought, provided any such application is made, in writing, to the Registrar and to the other party, on or before 28 August 2020, supported by a written submission. 5. Should a cost application be made pursuant to Order 7 hereof, then any response to same which is sought to be relied upon is to be provided to the Registrar and the other party, within 14 days of receipt of the application.

Endnotes

1. See Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637; HCCC v Gillett [2007] NSWNMT 7 at [13] and HCCC v Rutner [2009] NSWD 2 at [14].
2. See Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] and Health Care Complaints Commission v Howe [2010] NSWMT 12 at [113].
3. National Law s 3(2)(a).
4. See also Clause 9 Schedule 5 of the CAT Act.
5. Section 165A of the National Law.
6. See Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637; Clyne v New South Wales Bar Association (196) 104 CLR 186, 201-202 and New South Wales Bar Association v Evatt (1968) 117 CLR 117, 183-184.
7. See Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31]; Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) NSWLR 523 at [83]; Health Care Complaints Commission v Dr Platt [2013] NSWMT 14 at [55] and [71].
8. See Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3 at [39].
9. Health Care Complaints Commission v Bainbridge [2018] NSWCATOD 169 at [16]; Health Care Complaints Commission v Fraser [2014] NSWCATOD 29 at [238].
10. Re A Medical Practitioner and the Medical Practice Act, Medical Tribunal of New South Wales, 3 September 2007 at [12].
11. See HCCC v Phung (No. 1) [2012] 1 NSWDT at [68] and Health Care Complaints Commission v Elliott [2017] NSWCATOD 20 at [55].
12. See also Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 at [40]-[41].
13. See Slezak, Dr Peter [2011] NSWMPSC 10 at [80].
14. See Health Care Complaints Commission v Vega [2015] NSWCATOD 62 at [135].
15. See also Health Care Complaints Commission v Sultan [2018] NSWCA 303 at [156]. 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 20 July 2020 - Paragraph 427 dot point 1 - typographical error: per day changed to per week 23 July 2020 - Typographical changes to remove any information which may tend to identify the patients referred to in the complaints 29 July 2020 - Typographical changes made to paragraphs 256, 267 and 268, with the consent of the parties, clarifying that the respondent made a Medicare claim for item 2710 on 29 June 2011 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: 29 July 2020