Health Care Complaints Commission v Lo

ADMISSIONS MADE

1. Complaint 1 alleges unsatisfactory professional conduct in that, as recited in the particulars in respect of Patients A to N, though not all in respect of each, he prescribed Schedule 8 and Schedule 4D drugs: 1. without performing an appropriate medical assessment prior to issuing such prescriptions; 2. without obtaining an authority to prescribe drugs of addiction to a drug dependent person; 3. inappropriately in a quantity and for a purpose that does not accord with recognised therapeutic standards; 4. when such prescription was contraindicated as the respondent knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused; 5. in an inappropriate combination, and 6. without referring to a specialist for treatment review and/or advice. Some particulars of complaint 1 are admitted. Others are not admitted or are denied.
2. Complaint 2 also alleges unsatisfactory professional conduct. The particulars in respect of complaint 2 concern the failure to maintain adequate medical records as required by Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 for each of Patients A to N in that he failed to record: 1. information known to the respondent relevant to his diagnosis and treatment of patients including sufficient detail of: 1. the patient's medical history; 2. the results of any physical examinations of the patient; 3. details of any examination of the patient's mental state; 4. progress of the patient at each visit, and 5. diagnoses of the patient; 1. particulars of any clinical opinion reached by the respondent; 2. plans of treatment of the patient (including recording the reasons for the respondent's decision to prescribe particular medication), and 3. a level of detail appropriate to the patient's case and/or to the medical practice involved. Each particular of this complaint is admitted.
3. Complaint 3 alleges the respondent is guilty of professional misconduct under Section 139E of the Health Practitioner Regulation National Law (NSW) 2009 (No. 86a) (the National Law). Here, it is alleged that the respondent: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration, or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration.
4. As earlier noted, while the particulars of complaint 1 are repeated in the particulars of complaint 3 and most are admitted, it should not be taken that the respondent has admitted those particulars in respect of which he has earlier indicated they are not admitted or are denied.

PRELIMINARY

1. At the outset, it is important to remind ourselves that the jurisdiction we are exercising is protective in nature, not punitive. In exercising this jurisdiction, we must consider the maintenance of standards of the medical profession, the preservation of public confidence in the profession and protection of the community. Issues of public safety and health are paramount. Deterrence to other practitioners from engaging in conduct of a type found to warrant adverse findings is a necessary part of maintaining the standards of the medical profession.
2. We should also remind ourselves that the burden of proof is that required under the Briginshaw test (Briginshaw v Briginshaw (1938) 60 CLR 336 at 360‑363), that is, we must have a reasonable satisfaction on the balance of probabilities, having regard to the gravity and importance of the issues to be determined and the possible consequences of an adverse finding.

DEFINITIONS

1. So far as relevant, Section 139B of the National Law defines unsatisfactory professional conduct to mean conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practise of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
2. Section 139E of the National Law defines professional misconduct to be unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 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.

EVIDENCE

1. The applicant obtained and put into evidence a lengthy expert report from Dr Harry Nespolon and called him to give evidence. In his report, Dr Nespolon considered the prescription of drugs to each of Patients A to N and expressed his view as to the appropriateness or otherwise of such prescriptions.
2. In significant and in a number of areas, there is a difference of opinion between the evidence of Dr Nespolon and the evidence of the respondent. In those areas where there is agreement, it is not necessary to consider in detail the consequences of the concessions made by the respondent. Where, however, there are differences of opinion between Dr Nespolon and the respondent, it is appropriate to consider which evidence should be accepted.
3. We are of the view that the respondent was an unreliable witness. His evidence was marked by inconsistencies, frequent contradictions and unsatisfactory answers, both internally and in comparison with his statement, RX 1. In expressing this view, we are conscious of the fact that English is not the respondent's mother tongue and we have considered also the possibility that he may not have understood completely every question that was put to him by his own counsel, by counsel for the applicant in cross-examination or by members of the Tribunal. Notwithstanding that, we maintain our view that the respondent was an unreliable witness.
4. It is appropriate to refer to some of the inconsistencies, contradictions and unsatisfactory answers in the respondent's evidence which lead us to this view.
5. The reasons he advanced for not obtaining an authority to prescribe drugs as required by s 28(1) of the Poisons and Therapeutic Goods Act 1966 (the PTG Act) were contradictory. He did say he believed that obtaining authority from Medicare Australia to prescribe PSB drugs also gave him authority to provide Schedule 8 and Schedule 4D drugs and that further application under the PTG Act was unnecessary. However, on 20 March 1998 he applied for authority under the Act to prescribe Oxycodone to Patient F; such authority was given by letter of 9 April 1998. On 29 June 2004 he applied for authority under the Act to prescribe Methadone tablets to Patient F; such authority was given by letter of 16 July 2004.
6. These applications tend to negate his evidence concerning authority to prescribe PSB drugs of addiction.
7. It was said in a letter from his solicitors to an officer of the applicant (AX 3 p4) that the respondent understood the PTG Act to require "that any ongoing prescription required a review by a different medical practitioner" and that every 12 months the respondent and "Dr Nighjoy would review the prescribing together …". In evidence, he said both that such reviews did take place and that they did not take place. His understanding of the PTG Act was incorrect.
8. In cross-examination he said he was unclear how to define a drug dependent patient, but he conceded that he had been to many seminars when such was discussed. He also conceded that he had given seminars on drug dependency. There was further contradiction concerning his desire to prescribe Schedule 8 drugs in the future.
9. The respondent conceded in general terms that he did not check the notes of another practitioner in the practice if he knew the patient well and was their primary general practitioner; he later said that he did check notes generally.
10. In cross-examination he said that he did not think Patients A to N were abusing drugs; later he conceded he had drug dependent patients.
11. His evidence concerning his current hours of work was contradictory.
12. In cross-examination the respondent said that he did not prescribe Schedule 8 drugs to a patient he had not previously seen, but when his attention was drawn to a prescription for Pethidine to Patient A on 13 November 2012, he conceded that that was the first occasion he had seen Patient A.
13. In respect of Patient A's drug dependence, some of his evidence seemed to us to be fanciful. He said Patient A's Pethidine use was roughly ten injections per week. It was put to him that the patient was using a greater quantity, as he had previously indicated she was having two injections per day. He said that he did not believe it was more than ten per week because Patient A was less dependent on the weekends and usually didn't need injections on a Sunday. He also said that he would sometimes give Patient A some ampoules to take home if she required them over the weekend and that he kept the ampoules that Patient A obtained from the chemist in his bag, in respect of which he kept no record. This evidence was unsatisfactory.
14. The respondent conceded that he had no explanation why, in his notes of 9 February 2010 in respect of Patient H, he wrote that he had stopped prescribing Valium and started to prescribe Xanax, yet he wrote a script for Valium on the same day.
15. Initially, the respondent denied that he inappropriately prescribed to Patient M because that patient was predominantly being managed by Dr Dalton (a specialist). He said he had regular telephone conversations with Dr Dalton, but later conceded that those telephone calls occurred in the early 2000s, even though he started prescribing Diazepam in May 2012. Later, he conceded that he could not recall if he'd had a telephone conversation with Dr Dalton in 2010 when he prescribed Temazepam to Patient M for insomnia. He also said that he had no positive memory of speaking with Dr Dalton prior to prescribing Temazepam in 2010 and Diazepam in 2012.
16. In evidence, the respondent said that his experience was that specialists never wrote scripts. Later he said that Patient H was being prescribed by a specialist, Dr Halliday. He did, however, say he thought Patient H was a "special circumstance".
17. There was a contradiction on his obtaining his Fellowship of the College of General Practitioners, that is to say, whether by examination or by course work.
18. There were contradictions and inconsistencies in relation to the appropriateness and quantity and drugs prescribed to various patients.
19. There were further contradictions. The respondent said he was trying to wean Patient A off pethidine by prescribing Oxycodone and later conceded he continued prescribing Pethidine and Oxycodone to Patient A and delayed referring her to a specialist.
20. He was unable to explain why he wrote private prescriptions for Kalma for Patient H when it was available at a cheaper price under the PBS, nor was he able to explain why, on 28 February 2014, he prescribed approximately 150 tablets and one month later 50 tablets, when the dose was said to be one tablet per day. On that basis, he had prescribed medication for something in the order of six months within one month and in a manner which would have given opportunity for sale on the streets.
21. He was unable to explain why a psychiatrist was said to be managing Patient M's chronic back pain and conceded with hindsight that the patient should have been referred to an orthopaedic surgeon.
22. Patient N had been referred to Dr Ho at the Sydney Pain Management Centre. Dr Ho recommended on two occasions that the patient should have an opioid contract. The respondent was unable satisfactorily to explain why, despite Dr Ho's two recommendations, an opioid contract was not provided. His response in cross-examination was to say that that was not needed because Patient N was taken off Fentanyl in August 2014, yet the fact is the respondent was still prescribing that drug one month later in September 2014.
23. Frequently, there were long pauses between question and answer and sometimes in the course of giving an answer.
24. Individually, these inconsistencies and contradictions may have been overlooked, but taken together they do affect his credibility and reliability.
25. Making due allowances for the fact that these proceedings would cause some emotional strain, we remain firm in the view that much of his evidence cannot be accepted.
26. Accordingly, where there is a conflict between the evidence of Dr Nespolon and the evidence of the respondent, we prefer the evidence of Dr Nespolon.

PURPOSE OF PARTICULAR DRUGS

1. Before considering the particulars of complaint, it is appropriate to record the indications and contraindications, precautions and where appropriate, adverse effects, of particular drugs prescribed to various of the Patients A to N. These observations come from the expert report of Dr Nespolon, which became AX1.

Schedule 8 Drugs

• Oxycodone - is used for the relief of moderate to severe chronic pain. Oxycodone can produce drug dependence and has the potential of being abused. Psychological dependence, physical dependence and tolerance may develop upon repeated administration. Slow release Oxycodone is used for the management of moderate to severe chronic pain which has been unresponsive to non-narcotic analgesia. In the absence of a clear indication for a strong opioid analgesic, drug seeking behaviour must be suspected and resisted, particularly in individuals with a history of, or propensity for, drug abuse. There is a potential for abuse of the drug and for development of strong psychological dependence.
• Morphine - is used for chronic severe pain. Tolerance and physical dependence tend to develop upon repeated administration of Morphine and there is potential for abuse of the drug and for the development of strong psychological dependence.
• Pethedine - is used for the relief of moderate to severe pain which does not respond to non-opioid analgesic. Serious and life threatening reactions have been associated with the use of Pethidine. These include respiratory depression, coma, convulsions and hypotension. It has an abuse potential. Psychological and physical dependence may occur with repeated dosing. Except in patients with terminal conditions, Pethidine should be restricted to short term administration for relief of severe pain not responding to non-opioid analgesics.
• Methadone - is a suitable analgesic in conditions where Morphine would make a reasonable alternative, particularly for the relief of pain of visceral origin. It is not recommended for use in ambulant patients. Deaths due to cardiac arrhythmia and respiratory depression may occur, particularly in patients receiving Methadone for analgesia during treatment initiation or conversion from other opioids. It has the potential to produce dependence. The possibility of addiction cannot be excluded and patients should be reminded of the necessity of adhering to the prescribed dosage.
• Fentanyl - is an opioid analgesic, interacting predominantly with mu‑opioid receptors. Its use is indicated in the management of chronic pain requiring opioid analgesia. Abuse or intentional misuse may result in overdose and death.

Schedule 4D drugs

• Alprazolam - became a Schedule 4D drug from 1 February 2014. It is used for short term symptomatic treatment of anxiety, including treatment of anxious patients with some symptoms of depression. It can also be used for the treatment of panic disorder. It, being a benzodiazepine, should be prescribed for short periods only (2‑4 weeks).
• Diazepam - is used for short term relief of symptoms of anxiety. It also is a benzodiazepine and should be prescribed for short periods only.
• Nitrazepam - is used for the treatment of insomnia, whether organic or inorganic in origin. It is a benzodiazepine and should be prescribed for short periods only.
• Temazepam - Is used as an adjunctive therapy in the short term management of insomnia in adults. Caution must be exercised in administering Temazepam to individuals known to be addiction prone or those whose history suggests they may increase the dosage on their own initiative. It is desirable to limit repeat prescriptions without medical adequate supervision. It may have a potential for abuse, especially in patients with a history of drug abuse. It should be prescribed for short periods only.
• Oxazepam - is used for the management of anxiety disorders or for the short term relief of the symptoms of anxiety. A doctor should periodically reassess the usefulness of the drug for each patient. It should be prescribed for short periods only. It has the potential for abuse.

Patient A

1. In respect of Patient A, it is admitted that the respondent prescribed drugs without first performing an appropriate medical assessment and without obtaining an authority to prescribe drugs of addiction.
2. It is submitted on the respondent's behalf that when Patient A first attended the respondent's practice, she was already dependent on Pethidine and that in continuing to prescribe Pethidine, the respondent wanted to preserve the status quo pending attempts to transition her from Pethidine to more appropriate oral medication.
3. She was said to be a difficult patient to treat, and apart from being drug dependent when first consulting him, she cancelled appointments and had a misbehaving son, as a consequence of which she became anxious. For treatment of her anxiety she was prescribed benzodiazepine medication on a short term basis. It is said on his behalf that the respondent was not feeding a drug dependent patient's habit, but was motivated by a desire to help her.

Patient B

1. Each complaint in respect of Patient B is admitted. Those complaints concern the prescription of Oxycodone to Patient B: 1. without first performing an appropriate medical assessment; 2. prescribing in a quantity and for a purpose that does not accord with recognised therapeutic standards; 3. without obtaining an authority to prescribe drugs of addiction, and 4. when prescribing was contraindicated as the respondent knew or ought to have known that the drugs prescribed were likely to be abused. It was admitted that Patient B was one of three drug seeking patients.
2. On 14 August 2014, the respondent refused to prescribe Oxycontin for Patient B and the police were called. We note that the refusal to prescribe occurred after an investigation into the prescribing practices of the respondent had been initiated and the respondent was interviewed by Paul Smith, a PSU investigator.

Patient C

1. Each particular in respect of Patient C has been admitted. Those particulars relate to the prescription of Alprazolam: 1. without performing an appropriate medical assessment; 2. when such a prescription was contraindicated as the respondent knew or ought to have known that such a drug was, or was likely to be, abused; 3. in a quantity and for a purpose that does not accord with recognised therapeutic standards, and 4. without first obtaining an authority to prescribe. The respondent admitted that Patient C was a drug seeking patient for whom he should not have prescribed. He did say Patient C was able to hoodwink him and his colleagues.

Patient D

1. Patient D suffered osteoarthritis of both knees and had a total replacement of her right knee in June 2001 and of her left knee in August 2001. There was further surgery on her left knee in April 2012. The admitted particulars concerning Patient D relate to prescription of Nitrazepam and Oxycodone without first performing an appropriate medical assessment and prescribing without an authority. The prescription for Nitrazepam was said to be for insomnia consequent upon Patient D's discovering her husband's body following his suicide. Dr Nespolon said that Nitrazepam should be used only for short periods, and in this patient's case was excessive.

Patient E

1. All particulars in respect of Patient E are admitted. Those particulars concern the prescription of drugs: 1. without first performing an appropriate medical assessment; 2. in circumstances when prescription was contraindicated as the respondent knew or ought to have known drugs were being, or were likely to be, abused; 3. that Oxycodone was prescribed inappropriately in quantity and/or for a purpose that does not accord with recognised therapeutic standards; 4. without obtaining an authority, and 5. in an inappropriate combination with a benzodiazepine. Patient E is said to be one who highlights the difficulty of identifying a drug seeking patient. Notwithstanding that, all particulars are admitted, including that the respondent knew or ought to have known that the drugs prescribed were being, or were likely to be, abused.

Patient F

1. In respect of Patient F it is admitted that the respondent prescribed Diazepam without first performing an appropriate medical assessment and prescribing Oxycodone and Methadone without first obtaining an authority. Patient F had had back surgery: a discectomy in 1981 and two laminectomies in 1988. He also had surgery for pancreatitis, following which he developed a ventral hernia which was only partially repaired by further surgery.

Patient G

1. Each of the particulars in respect of Patient G are admitted. They relate to issuing prescriptions: 1. without first performing an appropriate medical assessment; 2. when prescribing was contraindicated because the respondent knew or ought to have known that the prescribed drugs were likely to be abused; 3. for an inappropriate purpose; 4. in an inappropriate combination, and 5. without authority.

Patient H

1. In respect of Patient H particulars 21, 22b and 23 are admitted. These particulars concern the failure to perform an appropriate medical assessment, prescribing without authority and in a quantity and for a purpose that does not accord with the recognised therapeutic standard. It was conceded that it is open to the Tribunal to find particular 22a has been established. That particular alleges inappropriate prescribing as to quantity and/or purpose.
2. It was only after the investigation into the respondent's prescribing practices that he sought and obtained an authority to prescribe Oxycodone to this patient.

Patient I

1. Each particular in respect of Patient I is admitted. Those particulars relate to prescribing when: 1. there was a failure to perform an appropriate medical assessment; 2. there was a failure to refer the patient to a specialist; 3. the respondent knew or ought to have known the drugs prescribed were likely to be abused; 4. the prescription was inappropriate as to quantity and/or purpose, and 5. the drugs were prescribed without authority. The respondent accepted that he should not have prescribed the medication referred to in the particulars of the complaint.

Patient J

1. Each particular in respect of Patient J is admitted. Those particulars concern: 1. the failure to perform an appropriate medical assessment before prescribing; 2. the failure to refer the patient to a specialist; 3. prescribing drugs in a quantity and for a purpose that was therapeutically inappropriate; 4. prescribing without authority, and 5. in an inappropriate combination. There was no criticism by Dr Nespolon of prescribing Nitrazepam in combination with Oxycodone, but there was of prescribing Diazepam in combination with Fentanyl.

Patient K

1. Each particular in respect of Patient K is admitted. Those particulars concern the prescription of Oxycodone, Diazepam and Morphine: 1. without first performing an appropriate medical assessment; 2. in a quantity and for a purpose that does not accord with recognised therapeutic standards; 3. without first obtaining an authority to prescribe; 4. in an inappropriate combination, and 5. with respect to those drugs and Temazepam, without referral to a specialist. We were asked to note, however, that while Dr Nespolon was critical of the prescription of Oxycodone, Diazepam and Morphine, he was not critical of the respondent's single prescription of Temazepam.

Patient L

1. The admitted particulars in respect of Patient L concern the prescription of named drugs: 1. without first performing an appropriate medical assessment, and 2. without authority. It is conceded that it is open to the Tribunal to find particular 36a established. This particular relates to prescribing in a quantity and for a purpose that does not accord with a recognised therapeutic purpose. This patient suffered a disc protrusion and following surgery was weaned off Oxycontin.

Patient M

1. In relation to Patient M it is admitted that in prescribing drugs, the respondent: 1. failed to carry out an appropriate medical assessment, and 2. prescribed without authority. After the investigation began, the respondent applied for and was given authority to prescribe Physeptone to this patient.
2. Patient M had been seeing Dr Stella Dalton, a psychiatrist, for years before seeing the respondent. In February 2008, she wrote to the respondent observing that Patient M would need to continue a dose of 700 mgs of Physeptone daily. In evidence, the respondent said he had had telephone conversations with Dr Dalton, but when and how many were and remain unknown. The respondent did concede he had obtained an authority to prescribe Methadone to this patient, but did not apply again after 2005. He was unable to explain why.

Patient N

1. Patient N had been treated by Dr Emery Kertesz before becoming a patient of the respondent. Of the five particulars of complaint, particular 40 is admitted, that is, that the respondent prescribed drugs without first performing appropriate medical assessment.

Patient A

1. Particulars 1(b) and (c), 2(a) and (c) and 3 are denied.
2. Relevantly, particular 1 alleges the respondent prescribed the drugs Diazepam, Morphine, Oxycodone, Pethidine and Temazepam to Patient A: (b) without referring Patient A to a specialist for treatment, review and/or advice, and (c) when such prescribing was contraindicated as the respondent knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused.
3. Particular 1(b) - The respondent's colleague in the practice, Dr Chen, was also involved in treating Patient A. Within one week of her attending the practice, Patient A was referred by Dr Chen to Dr Watson, a neurologist. The referral made by the respondent's partner was appropriate and timely. However, the patient failed to keep some of the appointments with the specialist and the need for her to have treatment for bowel cancer also resulted in the cancellation of appointments.
4. Dr Nespolon's report criticised the respondent for not referring Patient A for specialist opinion earlier and observed the respondent "wrote one referral to Dr Crawford that the patient did not attend. He should have referred the patient to a neurologist earlier". It is the fact that Patient A had been referred by another doctor in the practice in a timely manner and the respondent said that he was involved in that decision.
5. It has not been established that the respondent failed to encourage his patient to attend.
6. We are not satisfied that particular 1(b) has been made out.
7. Particular 1(c) alleges that the prescribing of the named drugs was contraindicated as the respondent knew or ought to have known that the drugs were being, or were likely to be, abused. This particular is denied.
8. Dr Nespolon recorded that this patient had an addictive personality and should not have been prescribed benzodiazepines. He expressed the view that it was clear to any reasonable observer that this patient was, and was likely to be, obtaining narcotics and possibly benzodiazepines from other medical practitioners. He observed that the patient displayed a number of drug seeking behaviours, namely loss of prescriptions, seeing multiple practitioners and changing practitioners when one doctor refused her request for opiates and then lying about whether she was able to have Pethidine after her time in hospital. The evidence does not establish that this patient was obtaining narcotics and possibly benzodiazepines from other medical practitioners, but it was Dr Nespolon's view that the prescription was contraindicated and the respondent's conduct invited strong criticism and was significantly below that which is reasonably expected of a practitioner with the same training or experience.
9. We find particular 1(c) established.
10. Particulars 2(a) and (c) are denied.
11. Particular 2 relevantly alleges the respondent prescribed the drugs Morphine, Oxycodone and Pethidine to Patient A: (a) inappropriately in a quantity and/or for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances . . . (c) in an inappropriate combination with benzodiazepines, namely Diazepam and Temazepam.
12. Particular 2(a) - Dr Nespolon was highly critical of the prescription of excessive amounts of Pethidine which was not prescribed for a recognised therapeutic purpose. Dr Nespolon believed that Pethidine was prescribed at an excessive rate, but that the rate of other medication was low. We find this particular established insofar as Pethidine is concerned.
13. Particular 2(c) - Dr Nespolon was highly critical of the prescription of Morphine, Oxycodone and Pethidine in combination with benzodiazepines, namely Diazepam and Temazepam. In oral evidence, Dr Nespolon outlined a significant risk of death from the combination of opiates and benzodiazepines.
14. Dr Nespolon's report indicates that benzodiazepines are not safe drugs when taken in conjunction with opioids. He referred to cases of fatal opioid overdose when there was a concomitant use of benzodiazepines. It was submitted on behalf of the respondent that Dr Nespolon's views appeared to be conditioned by strict compliance with MIMS guidelines. In questioning, he conceded that in practice something in the order of 50% to 75% of patients who are prescribed Methadone are also prescribed benzodiazepines. On that basis, it was submitted that the practice of concurrent prescribing of opiates and benzodiazepines is widespread throughout the profession. Dr Nespolon did say benzodiazepines should be prescribed only for a short period, that is, two to four weeks.
15. Dr Nespolon was highly critical of the prescription of Morphine, Oxycodone and Pethidine in combination with benzodiazapines on the basis that Patient A was likely to have an addictive personality and was likely to be obtaining narcotics and probably benzodiazapines from another medical source. We agree that the respondent should not have prescribed benzodiazapines for Patient A.
16. The fact that Pethidine vials were given to Patient A without adequate accounting and without controlled administration, heightened the risk to Patient A. There was a risk also that Patient A might obtain prescriptions for drugs from other sources.
17. We are satisfied that particular 2(c) has been made out.
18. Particular 3 alleges the respondent prescribed the drugs Diazepam and Temazapam to Patient A inappropriately and in a quantity and/or for a purpose that does not accord with recognised therapeutic standards of what is appropriate in the circumstances. Counsel for the respondent reminds us that Dr Nespolon noted that the benzodiazepines were prescribed in low quantities. While that may be the case, because Dr Nespolon was of the view they should be prescribed for short term use, we are satisfied that the prescription was inappropriate as to purpose rather than as to quantity.
19. We find this particular proved in part.

Patient D

1. Particular 9(a) alleges the respondent prescribed the drug Oxycodone to Patient D inappropriately and for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances.
2. Patient D had been a patient of the practice since 2001. She had bilateral knee surgery in 2001 and a repeat of the left knee surgery in April 2012. This patient had discovered her husband's body after he had committed suicide. The respondent predominantly prescribed Nitrazepam for insomnia related to the discovery.
3. In evidence, the respondent said that in an ideal world patients would not be so treated. However, he prescribed the medication because without it he felt the patient would experience considerable suffering. Having considered the respondent's conduct, Dr Nespolon expressed the view that the events the subject of the complaint did not invite strong criticism.
4. Dr Nespolon was not strongly critical of the prescription of Oxycodone for Patient D. It is his view that a longer acting opiate would have been appropriate for chronic pain. The respondent in his statement indicated that he prescribed 400 Oxycodone tablets to Patient D over a period of 411 days. He did not regard this as excessive or inappropriate in a patient with severe osteoarthritis of the knees. Such criticism as Dr Nespolon made was of using short acting medication rather than long acting.
5. We are not satisfied this particular has been made out.
6. Particular 10 alleges the respondent prescribed the drug Nitrazepam to Patient D inappropriately in a quantity and/or for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances.
7. As earlier noted, the respondent conceded it was open to us to find that this particular had been proved.
8. In the period 24 February 2001 to 16 September 2014, 2,375 tablets of Nitrazepam were prescribed for this patient. In cross-examination the respondent agreed that Nitrazepam should be used for the short term management of insomnia, that is, for a period of two to four weeks. He admitted that he had prescribed Nitrazepam to Patient D for a considerable period of time, indeed for years.
9. In view of Dr Nespolon's criticism of the long term prescription of Nitrazepam for Patient D, we find this particular established.

Patient F

1. Particular 14(b) alleges the respondent prescribed the drug Diazepam to Patient F inappropriately in a quantity and/or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances.
2. The respondent's denial of this particular could be regarded as inconsistent with his admitting particular 14(a). Particular 14(a) alleged that the respondent prescribed the drug Diazepam to Patient F without performing an appropriate medical assessment prior to issuing such prescription.
3. Dr Nespolon, both in his report and in oral evidence, was strongly critical of the respondent's ongoing prescription of Diazepam in the absence of any "ongoing assessment" and in inappropriate quantities and in combination with S8 drugs.
4. Dr Nespolon did not say the quantity of Diazepam prescribed was excessive, rather he said it should not have been used at all. It was said on his behalf that the respondent and the doctors at Westmead Hospital took a different view. It is not the fact that the doctors at Westmead Hospital took a different view. The fact is they recited the fact rather than agreed with it.
5. Once again, we prefer the evidence of Dr Nespolon and as a consequence find this particular proved.
6. Particular 16 alleges that the respondent prescribed the drugs Oxycodone, Morphine and Methadone to Patient F in an inappropriate combination with benzodiazepines, namely Diazepam and Oxazepam. It was submitted once again, that because Dr Nespolon indicated that some 50% to 75% of medical practitioners do not regard it as inappropriate to prescribe Methadone in combination with benzodiazepines, this particular has not been established. Whilst that may be the case, it nevertheless was the view of Dr Nespolon that all drugs other than Diazepam were prescribed for an inappropriate therapeutic purpose.
7. As with 14(b), and for the same reasons, we find this particular established.

Patient H

1. Particular 22(a) alleges the respondent prescribed the drug Alprazolam to Patient H inappropriately and in a quantity/and for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances.
2. The evidence disclosed that on 28 February 2014 the respondent prescribed 50 tablets and two repeats each of 50 tablets of Alprazolam 2 mgs. That quantity should have lasted 150 days at the prescribed dosage of one tablet per day. Subsequently, the respondent prescribed a further 50 tablets on 27 March 2014 (one tablet daily), 14 April 2014 (one tablet daily), 27 May 2014 (two scripts were issued on that date at one tablet three times daily), 17 June 2014 (1 tablet three times daily).
3. It will thus be seen that the respondent issued prescriptions exceeding that required if the medication was to be taken according to the respondent's instructions.
4. The respondent prescribed a high dose of Alprazolam when in the view of Dr Nespolon he should have tried an alternative to a short acting benzodiazepine in view of the patient's history of high benzodiazepine use and the potential for excessive use. It was Dr Nespolon's view that the respondent should have regularly assessed the patient's functional symptoms and should have used Alprazolam only in the very short term.
5. We are satisfied that this particular has been established.

Patient L

1. Particular 35(b) alleges the respondent prescribed the drugs Oxycodone and Temazepam to Patient L without promptly referring Patient L to a specialist for treatment, review and/or advice. It is important to note that the allegation here is one of failing to refer promptly. On the question of promptness, Dr Nespolon's report is silent.
2. Accordingly, we find this particular has not been established.
3. Particular 36(a) alleges the respondent prescribed the drug Oxycodone to Patient L inappropriately in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances.
4. It is conceded by the respondent that it is open to us to find this particular proved. There is no evidence of an appropriate assessment in the context of on‑going prescription of excessive levels of Oxycodone and, as conceded we might, we find this particular proven as to both quantity and purpose.

Patient M

1. Particular 37(b) alleges the respondent prescribed Diazepam, Methadone and Temazepam to Patient M without promptly referring Patient M to a specialist for treatment, review and/or advice.
2. Both in his statement, RX1, and in the course of oral evidence, the respondent maintained that Patient M was "really Dr Dalton's patient". Dr Dalton was an addiction specialist who had cared for Patient M's drug addiction for six years by the time the respondent first saw him.
3. The denial of particular 37(b) is based upon the respondent's belief that the patient was under the care of Dr Dalton and that "the dose was supported by Dr Dalton".
4. Here, it is relevant to note that particular 37(a), which related to the failure to perform an appropriate medical assessment prior to issuing prescriptions, was made upon an assessment of the patient's appearance and the on‑going prescription of Diazepam was based upon an inadequate assessment.
5. The respondent did acknowledge that his reliance on an addiction specialist to manage acute and chronic back pain was not appropriate. We are mindful of the strong criticisms made by Dr Nespolon that the respondent's prescription of Methadone in combination with S4D medications fell short of conduct expected of a practitioner of similar training and experience.
6. We were aware of only one letter from Dr Stella Dalton over the 14 years in which the respondent said he was merely supporting Dr Dalton in the management of Patient M. There is only one written note of Dr Dalton in Patient M's medical records. There is no other reference or record of any contact with Dr Dalton supporting the dosage of Methadone.
7. Dr Dalton wrote to the respondent by letter of 5 February 2008, in which she briefly confirmed the continued dose of Physeptone 10 mgs tablets at a dose of 70 mgs daily. Despite that, in answer to a question in cross-examination, the respondent said that Patient M was on 80 mgs per day, obviously a higher dose than referred to in the letter from Dr Dalton.
8. We are satisfied by the opinion of Dr Nespolon that particular 37(b) is established.
9. Particular 38 alleges that the respondent prescribed Methadone to Patient M: (a) inappropriately in a quantity that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances ; . . (c) in an inappropriate combination with benzodiazepines, namely Temazepam and Diazepam.
10. In respect of particular 38(a), the respondent answered that the patient was under the care of Dr Dalton and that the dose was supported by Dr Dalton.
11. For the reasons given in respect of particular 37(b) we are of the view that particular 38(a) has been established.
12. Insofar as particular 38(c) is concerned, it was Dr Nespolon's view that the prescription of benzodiazepines for this patient, in combination with a S8 drug, whilst not ideal, and the indications recorded were scant, was intermittent. The conduct of the respondent did not invite the strong criticism of Dr Nespolon.
13. We are of the view that particular 38(c) has not been proved.
14. Particular 39 alleges the respondent prescribed the drugs Temazepam and Diazepam to Patient M inappropriately for a purpose that does not accord with the recognised therapeutic standard.
15. Particular 38(a) alleged a breach of clause 79 of the PTG Regulation. Particular 39 alleges a breach of clause 34 of the PTG Regulation. For the reasons given in respect of particular 38(a) we express the same view in respect of particular 39 and find it established.

Patient N

1. Particular 40 alleges the respondent prescribed the drugs Diazepam, Fentanyl, Tempazepam and Oxycodone to Patient N without referring Patient N to a specialist for treatment, review and/or advice.
2. In his statement, RX 1, at paragraphs 116 and 117, the respondent said he referred Patient N to Dr Gronow at the Sydney Pain Management Centre in September 2012.
3. His understanding of the patient's failure to attend was because of the lengthy waiting time and his inability to afford the costs. In mid 2014 the respondent again referred Patient N to Dr Ho at the same clinic. The patient subsequently attended and correspondence was received from Dr Ho in August 2014, September 2014 and November 2014.
4. The respondent's evidence was that the correspondence made it clear that Patient N was motivated to cease his dependency upon drugs of addiction and was successfully weaned off them in November 2014.
5. It was Dr Nespolon's view that the respondent's conduct was below what was expected of a practitioner of the same training, but it did not invite his strong criticism.
6. The fact is that the respondent did refer Patient N to a specialist and it is our view that it has not been established that the respondent failed to encourage his patient to attend.
7. We are not satisfied that this particular has been established.
8. Particular 41 alleges the respondent prescribed the drugs Oxycodone and Fentanyl to Patient N: (a) inappropriately in a quantity and/or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances . . .; (c) in an inappropriate combination with benzodiazepines, namely Temazepam and Diazepam.
9. Dr Nespolon was of the view that while the patient had back pain, it was rarely assessed and did not warrant the use of opiates. Accordingly, he was strongly critical of the respondent's prescription of both Oxycodone and Fentanyl without any discernible review. Furthermore, he expressed strong criticism of the quantity prescribed.
10. The respondent took over treatment of Patient N from Dr Kertesz, and in his statement, RX 1, asserted that he prescribed precisely what Dr Kertesz had been prescribing.
11. Notwithstanding that, even if that be the case, we are of the view that Dr Nespolon's opinion concerning the prescription should be accepted.
12. We are satisfied that particular 41(a) has been established.
13. As to particular 41(c) the respondent did not accept that his prescribing Temazepam and Diazepam was inappropriate. Initially, Temazepam was prescribed for insomnia and Diazepam for anxiety. The respondent maintained that Patient N did not receive the two benzodiazepine simultaneously.
14. Dr Nespolon was strongly critical of the repondent's prescription of benzodiazepines in combination with opiates. He referred to the high incidence of recorded deaths in literature when patients took a combination of opiates and benzodiazepines. He expressed the view that if opiates and benzodiazepines were to be taken in combination, they should be used at the lowest dose possible for the shortest possible time.
15. We are satisfied that particular 41(c) has been established.
16. Particular 42 alleges the respondent prescribed the drugs Temazepam and Diazepam to Patient N inappropriately in a quantity and/or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances.
17. The respondent's response to this particular reflected that which he had said in respect of particular 41(c). For the reasons expressed in respect of particular 41(c) above, we are satisfied that this particular has been established.

UNSATISFACTORY PROFESSIONAL CONDUCT; PROFESSIONAL MISCONDUCT

1. As earlier noted, Section 139B of the National Law relevantly provides: 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.
2. Section 139 E of the National Law relevantly provides: For the purpose of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
3. The determination of whether a practitioner is guilty of unsatisfactory professional conduct under Section 139B(1)(a) involves an objective assessment of the practitioner's conduct against the standard of conduct reasonably expected of an equivalent practitioner.
4. It is submitted by the applicant that the conduct of the respondent in respect of those matters which have been found or admitted in complaint 1, in the light of the evidence of Dr Nespolon, amount to unsatisfactory professional conduct.

COMPLAINT 1

1. Continuing to prescribe drugs of addiction over long periods for drug dependent patients; the failure to obtain necessary authorities; the failure to conduct appropriate medical assessments; the prescription of drugs in inappropriate combination; the failure to refer patients to specialists for treatment review and/or advice; prescribing drugs when such prescription is contraindicated; when a practitioner knows or ought to know that the drugs so prescribed are being, or are likely to be, abused; the prescription of drugs inappropriately and/or for a purpose that does not accord with recognised therapeutic standards over a long period, in our view, do amount to unsatisfactory professional conduct.

COMPLAINT 2

1. Clause 7 of the Health Practitioner Regulation (New South Wales) Regulation 2010 relevantly provides: 1. A medical practitioner ... must, in accordance with this Part and Schedule 2, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner
2. Schedule 2 clauses 1 and 2 of the same regulation provide: 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following: (a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient. (4) . . . (5) . . . 2 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment.
3. Almost universally, the respondent failed to comply with the regulation concerning the making and keeping of notes of consultations. His failure to do so constitutes unsatisfactory professional conduct. The importance of making and maintaining adequate patient notes is obvious.

COMPLAINTS 1 AND 2: UNSATISFACTORY PROFESSIONAL CONDUCT FOUND

1. We are satisfied that the particulars in complaint 1 which have been admitted and those which have been established constitute unsatisfactory professional conduct.

COMPLAINT 3: PROFESSIONAL MISCONDUCT

1. We have earlier observed that Section 139E of the National Law provides that professional misconduct of a registered health practitioner means either: 1. unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 2. 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.
2. Complaint 3 is admitted in its entirety and in our view, that concession is justified by the evidence and by the admissions made by the respondent and on his behalf.

WHAT ORDERS SHOULD BE MADE

1. As noted earlier, the applicant seeks that the registration of the respondent be cancelled for a period of two years.
2. It is submitted on behalf of the respondent that the appropriate orders should be, first, that the respondent be reprimanded; secondly, that he not be permitted to possess, supply, administer or prescribe any drug of addiction as defined by the PTG Act, that any change to his Schedule 8 authority be made in accordance with the protocol of the Medical Council of NSW and that he not make an application for variation to his Schedule 8 authority prior to the expiration of 18 months from the date of our decision.
3. It is also submitted that it would be appropriate to direct that the respondent complete the Issues in General Practice Prescribing course offered by Monash University within a period of 12 months of the decision and that within 30 days of completing that course, he provide documentary evidence to the Medical Council of NSW that he satisfactorily completed that course.
4. It was also submitted that the respondent would consent to an audit of his practice by random selection of his medical records by nominees of the Medical Council of NSW.
5. It was further submitted that conditions in relation to the audit concerning time compliance and reporting be made. It was submitted that the respondent should be required to authorise and consent to the exchange of information between the Medical Council of NSW, Medicare Australia and the Pharmaceutical Benefits Unit of the New South Wales Ministry of Health for the purpose of monitoring compliance with conditions, and that the Medical Council of NSW be the appropriate review body for the purpose of Division 8 of the National Law.
6. In determining what is an appropriate order, assistance is provided by the decision of the Court of Appeal in Spicer v New South Wales Medical Council (unreported CA No. 3 of 1981, 19 February 1981). Hope JA, with whom Reynolds and Hutley JJA agreed, said: In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. It is quite clear that prescribing medication contrary to law can amount to conduct warranting the removal of the practitioner's name from the Register of practitioners.
7. It is useful also to refer to the decision of the Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]: 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.
8. Authority binds us to consider the protection of the public against conduct of the type engaged in by the respondent.
9. Reference is frequently made to the decision of the High Court of Australia in Ex Parte Lenehan (1948) 77 CLR 403 at 422. That was a case involving a solicitor who had been struck off for dishonesty and was applying for readmission. At 422 Latham CJ, Dixon and Williams JJ said: Where a person applies for reinstatement he is in a more disadvantageous position as to an original applicant because he must displace the decision as to probable permanent unfitness which was the basis of his removal.
10. It is submitted by the applicant that these words do not mean that the Tribunal may order deregistration only if it finds the practitioner is permanently unfit to practise.
11. In Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [91] the Tribunal, under the presidency of Wright J, said of Ex Parte Lenehan: This quotation [quoted in par 157 above] should not, however, be taken to support the proposition that the Tribunal may order deregistration only if it finds that the practitioner is permanently unfit to practice - see Health Care Complaints Commission v King [2013] NSWMT 9 at [25]. The expression used by the High Court in Ex Parte Lenehan was "probable permanent unfitness" and referred to the finding which usually underlies the striking off of a solicitor. It serves to indicate that the striking off of a lawyer or deregistering a medical practitioner will generally only be appropriate if he or she is unfit to practise at the time of making the order and is likely to remain so for a significant period.
12. In considering the fitness of the respondent to practise, we must also have regard to the steps he has taken since the conduct complained of occurred. It is conceded by the applicant that some early steps were taken by the respondent to mitigate future harm, including submitting to restrictions, improving medical record keeping and relinquishing the authority to prescribe drugs of addiction. These steps occurred after the investigation was initiated. We are enjoined by authority to exercise caution when considering claims of reformation where there is a history indicating serious transgressions and deficiencies in conduct or attitude.
13. The respondent's conduct was reckless and showed a blatant disregard of the law. In our view, presently and at the time he issued such prescriptions, he was unfit to be a medical practitioner. Moreover, we were concerned to note during the course of his giving evidence that he failed to demonstrate insight into the gravity of his conduct. In this respect, we do not agree with the submissions by his counsel that he did possess insight.
14. We are concerned by the respondent's failure properly and lawfully to prescribe drugs of addiction. This failure has the potential to allow their entry into the community where they could become available to drug abusers, thus raising a serious issue of protection of public health and safety.
15. Before concluding our reasons we feel obliged to make some observations concerning the role of a doctor on specialist referral. Referral to a specialist goes beyond the administrative task of writing a letter. The appropriate and expected standard involves obtaining the opinion sought, considering the advice and taking appropriate and considered action. In cases of chronic conditions where patients are on medication, constant periodic reassessment of the condition is required. This is to ensure accuracy of diagnoses, status of the condition, including signs and symptoms, and the impact of treatment. Because the personal circumstances of patients may change it is desirable to verify provisional diagnoses, and physical examinations should be undertaken to determine future management strategies.
16. The applicant seeks an order for costs. The respondent concedes that such an order should be made against him.
17. In our view the appropriate order is cancellation of the respondent's registration for a period of two years.

ORDERS The orders are: 1. Pursuant to s149C(1)(b) of the Health Practitioner Regulation National Law (NSW) 2009 (No. 86a), the respondent's registration is cancelled. 2. Pursuant to s149C(7) of the Health Practitioner Regulation National Law (NSW) 2009 (No. 86a), the respondent may not apply for review of Order 1 for a period of 2 years from the date of the decision. 3. The respondent will pay the applicant's costs as agreed or assessed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 September 2016