Health Care Complaints Commission v Meneghetti

Making findings of fact

1. Although Dr Meneghetti admitted the allegations in the complaint, she gave evidence which, if proven, would put her conduct in a more favourable light. That evidence is relevant to the seriousness of her conduct and the orders that we should make to protect the health and safety of the public.
2. Those matters include: why she first began prescribing the substances; how much she knew about the substances she prescribed; the level of independent judgment she exercised; whether Mr Dank intimidated or threatened her; what clinical records she kept and whether she lost any of those records; and whether she had any concern for the patients' health and welfare. We need to make findings about those matters because they are relevant when determining what orders we should make. We do so later in these reasons.
3. The standard of proof we must apply when making findings about these matters is the civil standard - "on the balance of probabilities". It was said by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 that: The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
4. Section 140 of the Evidence Act 1995 (NSW) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact.
5. However, the Tribunal is not bound by the rules of evidence and, strictly speaking, "neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT": Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, Leeming JA with whom Gleeson JA agreed. While we are not bound to adopt the approach set out in Briginshaw or in s 140 of the Evidence Act, that general approach may be justified. When deciding whether the evidence is sufficient to meet the civil standard of proof, we will be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding.

Unsatisfactory professional conduct and professional misconduct

1. There are thirteen separate complaints. The first twelve complaints allege unsatisfactory professional conduct as defined in s 139B(1)(a) and (l) of the National Law: (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. . . . (l) any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
2. The thirteenth complaint repeats the particulars in complaints one to twelve and alleges that those matters amount to professional misconduct. Professional misconduct is defined in s 139E of the National Law to mean: (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.

Professional relationship with Mr Dank - Complaint One

Summary

1. Complaint One is that Dr Meneghetti is guilty of unsatisfactory professional conduct by maintaining an inappropriate professional relationship with Mr Dank. He introduced eight patients to her medical practice (Patients B to I). She accepted clinical advice from him without exercising any independent judgment. He was not a medical practitioner and Dr Meneghetti should have known that he had been severely sanctioned for conduct relating to prescribing and supplying PIEDs to athletes.

Dr Meneghetti knew or should have known that Mr Dank had been severely sanctioned for conduct relating to the use of PIEDs

1. In 2013, Dr Meneghetti purchased a property in Fairfield, a suburb of Sydney, which contained six consulting rooms. She practiced from one of those rooms and rented others to various clinicians. At the end of 2014, the architect who designed the property told her that Stephen Dank was a friend who needed a place to work. Dr Meneghetti met with Mr Dank and agreed to rent him a room. According to Dr Meneghetti, Mr Dank never paid any rent, but that is not relevant to any issue in dispute. Mr Dank told Dr Meneghetti that he was a chemist and that he treated people with muscle and other injuries. He said he would refer patients to her for their general practice needs. When she first met him, Dr Meneghetti said she took Mr Dank at "face value". She did not know his background and did not make any enquiries about his qualifications or reputation.
2. Dr Meneghetti should have known that Mr Dank had been severely sanctioned for conduct relating to the use of PIEDs in sport.

Dr Meneghetti failed to exercise independent judgment by delegating decisions about what drugs to prescribe and in what quantities

1. Dr Meneghetti said that in 2014, Mr Dank gave her a standard protocol document and that it was 'in the computer' but she did not know how it got there. Dr Meneghetti said that document set out the various cycles for taking the substances listed, over a period of six months. Each patient took the substances according to the protocol document, except for women, who were not prescribed testosterone. Each patient told Dr Meneghetti what stage they were at in the cycle and she prescribed the substances based on that information. Although this document was not in the materials, we accept Dr Meneghetti's evidence about it. She described it in detail and spoke as if she could picture it in her mind.
2. In oral evidence, Dr Meneghetti made general statements about how she knew that prescribing these substances did not comply with Australian legislation and that there had not been enough studies or research to justify prescribing them. She knew the word 'peptide' and knew that she should not have prescribed them because of legislative requirements. She said she knew it was wrong to prescribe them right from the start. She said she feels really bad about what she has done.
3. At the hearing, Dr Meneghetti admitted that the reason she prescribed these substances to Mr Dank and the other patients was that Mr Dank recommended that she do so. She did not exercise any independent judgment that those substances were suitable for treating weight loss or muscle injury. Dr Meneghetti accepted, without question, Mr Dank's instructions that she prescribe the substances to treat obesity and muscle injuries. She did not conduct any independent research into the legality or clinical necessity for prescribing those substances. She effectively delegated her role as a doctor to Mr Dank.
4. A partially completed "Peptide Consent Agreement of Understanding" for Patient F was in evidence. Mr Dank prepared that document. Dr Meneghetti does not know when she first saw this document. She gave evidence that she did not always receive copies of the signed agreements but if she did, she would put it in the records. The Consent Agreement referred to Mr Dank and Dr Meneghetti as 'the Medical team'. Dr Meneghetti said she did not regard herself as a member of a team but when pressed she agreed that she collaborated with Mr Dank.
5. The Consent Agreement included an acknowledgement that the peptides being prescribed were a 'prohibited substance' and were not to be used by any professional athlete. Dr Meneghetti did not question the accuracy of this statement. In fact, these substances are banned for all athletes competing in any sport covered by the WADA code, not just professional athletes.
6. Despite those admissions, Dr Meneghetti had previously suggested that she exercised her own judgment, that she had some knowledge of the substances and that she had continued prescribing because of threats or intimidation. For the reasons we give below, these assertions are either not true, or they do not justify her behaviour.
7. A panel of the Medical Council interviewed Dr Meneghetti on 23 August 2017 during proceedings under s 150 of the National Law. She told the panel that she would look at the cycle of treatment document (the protocol document) recommended by Mr Dank and decide whether she agreed with it or not. She said she did that by reading books but she could not name them. In oral evidence, Dr Meneghetti admitted that she did not do any research or educate herself about the substances when she first began to prescribe them. It follows that the evidence she gave to the Medical Council was not correct. Dr Meneghetti did not appear to appreciate that she attempted to mislead the Medical Council into believing that she had undertaken her own independent research.
8. In her statement Dr Meneghetti said, Mr Dank "suggested that he may be able to refer clients to me for their general practice needs." She stated that, "...at around the same time, I started prescribing peptides and anabolic steroids to assist people with weight loss and other hormonal imbalances." She added that she "became involved in the treatment of some clients who initially came to the Clinic to see Mr Dank."
9. One reason she gives in her statement for prescribing these substances is that she was, "drawn to the potential for people to lose weight using these drugs". She said in oral evidence that the first person to whom she prescribed these substances was an existing patient who was morbidly obese (160 kg) with severe knee osteoarthritis and impaired mobility. Mr Dank told her that if she prescribed peptides and injections, the patient would lose weight. He told her what to prescribe to this patient and she made a note of it. Dr Meneghetti said that the patient lost 30 kg and was very happy with that level of weight loss and the resulting increase in mobility. That outcome made her feel comfortable about following Mr Dank's advice in future. The level of her understanding was that there was no problem prescribing these substances if the patient lost weight and it did not cause any harm.
10. In evidence to the HCCC on 17 January 2017 Dr Meneghetti said that she prescribed anabolic steroids, peptides and testosterone because "if it was taken seriously by the patient, it would be really good to repair muscles, to lose weight ..." She added that the patients do not take responsibility - "they don't do what you tell them to do." At the Tribunal hearing, Dr Meneghetti said she did not believe that to be the case at the time. She does not know why she said it.
11. Dr Meneghetti did not give the impression to the Medical Council during s 150 proceedings that she understood right from the start that she should not have been prescribing these substances. She suggested that she had done her own independent research and that she had satisfied herself that the substances were not harmful. For example, she said that, at some stage, she asked her daughter who worked at Sydney University to download information about research into these substances from the university library. She admitted during oral evidence that she obtained this research literature well after 2014.
12. According to Dr Meneghetti, those studies were not negative and did not focus on adverse side effects. She said she did not think in 2014, that the substances could be harmful. She said she thought peptides were an effective and safe treatment for obesity and muscle repair.
13. The literature Dr Meneghetti referred to was in evidence and Professor Handelsman made some comments about it in his report. Dr Meneghetti also referred to another folder of literature that she had printed out. At the hearing, she acknowledged that she did not read any literature before prescribing the substances. At that time, she relied exclusively on Mr Dank's knowledge. She did not remember when she started researching this topic.
14. These general statements and references to academic literature do not persuade us that Dr Meneghetti understood the nature and effect of the substances or the possibility of unknown short, medium or long-term adverse effects. When explaining her knowledge of these substances, Dr Meneghetti did not mention the risk to the safety and welfare of patients. In our view, she did not appreciate the risks of prescribing these substances, especially in the quantities and for the duration that they were prescribed.
15. Dr Meneghetti did not access the prescribing reference for general practice - MIMS online (Monthly Index of Medical Specialities). That resource would have given her information about whether certain substances were approved for use in Australia, and/or only available to treat certain specific conditions with strict prescribing criteria. The non-ARTG medications would not appear in this document because they have not been registered for use in Australia. These particular substances are not registered for use in humans because trials have not been performed demonstrating that their efficacy outweighs any safety risks.
16. If Dr Meneghetti knew right from the start that what she was doing was wrong, it follows that we do not accept her evidence that she first fully appreciated the seriousness of the situation in March 2016. At that time the Daily Telegraph published an article headed, ''Sport scientist Stephen Dank is still working at a Sydney medical clinic." The article referred to Dr Meneghetti as Mr Dank's "business partner who provides Dank's patients with prescriptions." We do not accept her evidence that this was "the first time [she] had been confronted with the truth about [Mr Dank's] underhanded treatment and prescribing practice." She knew that it was wrong to prescribe these substances right from the start. Dr Meneghetti's credibility on this point is further undermined by the fact that she continued to prescribe the substances to patients after she had read the Daily Telegraph article.
17. Dr Meneghetti described Mr Dank as 'a conman' who made sure she did not stop prescribing. She said she felt threatened when Mr Dank told her, two or three times, that his brother was a 'bikie' and that he and his other bikie friends would do whatever he wanted. She also mentioned that Mr Dank intimidated her daughter who was working at the practice. When he left the practice, Dr Meneghetti said that Mr Dank mentioned that his lawyers would be in touch.
18. This evidence is broadly consistent with evidence that Dr Meneghetti gave to the Medical Council on 23 August 2017. She told the panel that she thought Mr Dank was threatening her. Dr Meneghetti was not clear, in her evidence to the Medical Council or to the Tribunal, about when Mr Dank made these alleged threats or the context. She did not contact police or tell anyone about these incidents.
19. We are satisfied that, at some stage, Mr Dank mentioned his 'bikie' friends in conversations with Dr Meneghetti and suggested that they would do what he asked. We also accept that Dr Meneghetti felt intimidated by those comments. However, without knowing when these comments were made or the exact context, we do not accept that those comments explain, much less justify, Dr Meneghetti's decision to continue prescribing these substances.
20. We accept that Mr Dank is a disreputable character. Professor Handelsman has some knowledge of his activities in relation to the drug scandals in various football codes and described him in derogatory terms in his report. Professor Handelsman acknowledged that Dr Meneghetti was taken in by Mr Dank's unscrupulous behaviour. It is true that but for Mr Dank approaching her; Dr Meneghetti is unlikely to have found herself in this situation. The fact that it was not her idea to prescribe these substances is relevant when determining the seriousness of her conduct.
21. In determining Dr Meneghetti's credibility and level of insight, we take into account the fact that: she initially attempted to persuade the HCCC and the Medical Council delegates that she had done some research, that she had genuine reason for prescribing these substances and that she was being pressured in some way by Mr Dank.
22. We find Complaint One to have been proven.

Treatment of Stephen Dank - Complaint Two

1. Complaint Two is that Dr Meneghetti failed to provide appropriate care and treatment to Mr Dank when she inappropriately prescribed both non-ARTG drugs and ARTG drugs. Dr Meneghetti treated Mr Dank between January 2015 and November 2016 for what she described as "attention deficit hyperactivity disorder and pale skin." She prescribed dexamphetamine, anabolic steroids, peptides and hormones. She also prescribed Melanotan for skin tanning and Bremelanotide for a "sexual arousal disorder".
2. Dr Meneghetti first prescribed dexamphetamine on 13 January 2015 for ADHD (Attention Deficit Hyperactivity Disorder). Initially she said she did not know that she required an authority to prescribe dexamphetamine but Mr Dank had shown her a prescription for that substance from a psychiatrist, which suggested he was already taking this medication. In November 2016, she referred Mr Dank to Dr Selwyn Smith, a psychiatrist who had previously prescribed the dexamphetamine. Dr Meneghetti later admitted that she knew she could not prescribe dexamphetamine without an authority and acknowledged that she should have referred Mr Dank to Dr Smith at the outset.
3. Dr Meneghetti wrote 48 prescriptions for 100 tablets of dexamphetamine from 13 January 2015 to 2 November 2016. Dr Meneghetti said that Mr Dank had not received that number of scripts because she had lost one and the pharmacy had not dispensed all of those scripts. When asked why she did not give one script at a time instead of repeats, Dr Meneghetti said it was Mr Dank's idea to issue multiple scripts and she just went along with it.
4. Dr Meneghetti also prescribed Mr Dank LGD-4033 - a selective androgen receptor modulator (SARM). She wrote prescriptions for 100 tablets on 12 separate occasions. Dr Meneghetti said she used to know what this substance was, but has forgotten. LGD-4033 is being investigated as a treatment for muscle wasting and weakness associated with ageing, but is known to have health risks, particularly for the heart and liver.
5. When Mr Dank stopped seeing patients at the clinic in May 2016, Dr Meneghetti continued to prescribe him the doses of the substances set out in the protocol document. She continued to do so for about six months.
6. Professor Handelsman expressed the view that Dr Meneghetti did not conduct an appropriate assessment of the patient before prescribing these substances. She did not take a history or conduct a physical examination. There was no valid medical indication for the prescriptions and the substances were not prescribed for an appropriate therapeutic purpose. For the androgens, hCG (human chorionic gonadotropin) and human Growth Hormone, the amounts prescribed were far above recommended doses. Professor Handelsman concluded that prescribing these compounded, non-approved drugs without any medical indication was significantly below the standard required and deserving of his strong criticism.
7. We find Complaint Two to have been proved

Patient B - Complaint Three

1. Patient G, Patient I and the patient with initials AK all had significantly high Testosterone. Similarly there were other examples of her inappropriate management where patients were demonstrated to have dangerously high Insulin levels (Patients I, G, F), concerningly high cholesterol (Patient G) amongst a myriad of other abnormal blood results. It seems she ignored these.
2. Complaint Three is that Dr Meneghetti failed to provide appropriate care and treatment of Patient B by prescribing non-ARTG drugs when there were no valid medical indications for their use and where there was no reliable evidence of the quality, safety or efficacy of those drugs. For example, she prescribed CJC-1295 and SARM-S22 on 9 December 2014. Professor Handelsman concluded that there were no valid medical indications for prescribing either of these substances. Prescribing them discloses a poor knowledge of endocrinology.
3. Each complaint, including the complaint about Patient B, alleges that Dr Meneghetti prescribed ARTG and non-ARTG substances without conducting an appropriate assessment of the patient, including physical examination and medical history. Rather than conducting appropriate assessments of each patient and examining them, Dr Meneghetti prescribed the substances Mr Dank told her to prescribe. Dr Meneghetti should have done her own assessments and diagnostic tests and then formulated an individual management plan for each patient.
4. We also find each of the other particulars in Complaint Three to have been proved.

Patient C - Complaint Four

1. Complaint Four is in similar terms to Complaint Three. Dr Meneghetti prescribed Patient C, with various peptides 9CJC-1295, IGF1LR3 and SARM-S22 on 11 December 2014 and 17 December 2014. According to Professor Handelsman, there are no valid medical indications for prescribing these substances. SARM-S22 is a synthetic androgen and prescribing any androgen to women is contraindicated. In addition, she should have referred Patient C to an endocrinologist.
2. We find Complaint Four to have been proved.

Patient D - Complaint Five

1. Complaint Five is that Dr Meneghetti prescribed both non-ARTG drugs and ARTG drugs to Patient D in the circumstances listed under that particular. Dr Meneghetti recorded that she was treating this patient for depression, stress, low libido, insomnia and lack of energy. He was 15 to 20 kg overweight. Dr Meneghetti prescribed various medications to reduce his pain, anxiety and depression and Primoteston to improve his libido. She said she saw him on three occasions before September 2016.
2. Professor Handelsman stated that the documented conditions are not proper indications for prescribing any of these substances. There is no valid indication for prescribing Arimidex or Serophene to men. There is no valid medical reason to prescribe IGF1, LR3, Primobolan and Nandrolone to this patient. The human chorionic gonadotropin Pregnyl is only indicated for treatment of male infertility due to gonadotrophin deficiency. Further, Dr Meneghetti indicated that she intended to prescribe these substances for only 3 to 6 months. If they were justified, they usually require life-long treatment.
3. As a particular example of wrongdoing, Dr Meneghetti prescribed Patient D various substances on 29 July 2016 with up to 5 repeats and ordered blood tests on the same day. She did not have the results of those tests when she prescribed the substances. Dr Meneghetti did not have a record of any medical history, physical examinations or diagnosis at that time.
4. Subsequently, the blood tests demonstrated elevated serum IGF-1, oestradiol and suppressed serum LH and FSH. These tests supported the excessive use of testosterone and growth hormone. These hormone levels are strong evidence that further testosterone or growth hormone medication were not indicated.
5. We find Complaint Five to have been proven.

Patient E - Complaint Six

1. Complaint Five is that Dr Meneghetti prescribed both non-ARTG drugs and ARTG drugs to Patient E in the circumstances listed under that particular. Dr Meneghetti treated this patient with Primoteston Depot (250 mg/ml) and CJC-1295/Ipamorelin (2000mcg/ml) in August 2016. Professor Handelsman said that there is no valid medical indication for prescribing CJC-1295, ipamorelin, IGF1 LR3 or Primobolan. The history and examination showed no valid indication for prescribing Nandrolone. The doses of testosterone, hCG and Growth Hormone were manifestly excessive.
2. When asked why she prescribed this patient testosterone on one day and CJC-1295 the next day, Dr Meneghetti said that she could not remember this patient at all.
3. We find Complaint Six to have been proven.

Patient F - Complaint Seven

1. Complaint Seven is that Dr Meneghetti prescribed both non-ARTG drugs and ARTG drugs to Patient F in the circumstances listed under that particular. Patient F was said to suffer from high cholesterol, high triglycerides, insulin resistance and low testosterone. He was 10 to 15 kg overweight. Dr Meneghetti prescribed substances purportedly to reduce his weight, reduce depression and increase his libido and energy levels. On 7 July 2016, Dr Meneghetti prescribed growth hormone, hCG, IGF1-LR3, Nandrolone, Primobolan, testosterone cypionate and Primoteston Depot.
2. Professor Handelsman stated that the reasons for prescribing these substances were not valid indications for prescribing the approved drugs (testosterone, hCG, GH) and there is no valid indication for the other non-approved drugs. In particular, prescribing testosterone was not justified in the absence of proven hypogonadism. Even if there was such an indication, the doses were excessive and there was no basis for prescribing multiple testosterone products.
3. We find Complaint Seven to have been proven.

Patient G - Complaint Eight

1. Complaint Eight is that Dr Meneghetti prescribed both non-ARTG drugs and ARTG drugs to Patient G in the circumstances listed under that particular. Dr Meneghetti said she treated this patient for mood disorder, weight loss, lack of energy, erectile dysfunction, infertility, impotence, low testosterone, insulin resistance and lower back injury. She said that after analysing blood results she prescribed several hormones to increase his energy, reduce depression and assist with weight loss and libido. According to Professor Handelsman, none of these conditions indicated treatment with those substances. The massive overuse of testosterone for prolonged periods would leave the patient testosterone deficient once the treatment stopped.
2. We find Complaint Eight to have been proven.

Patient H - Complaint Nine

1. Complaint Nine is that Dr Meneghetti prescribed both non-ARTG drugs and ARTG drugs to Patient H in the circumstances listed under that particular. This patient was treated for low libido, low energy and depression. Dr Meneghetti prescribed various hormones and peptides. The prescriptions are all dated 12 April 2016. In Professor Handelsman's view, none of the substances she prescribed was appropriate to treat those symptoms and the doses were excessive. The risk of compounded, non-approved drugs (IGF1 LR3, LGD4033, CJC1295, Ipamorelin) are impossible to predict in the absence of reliable clinical trial data.
2. We find Complaint Nine to have been proven.

Patient I - Complaint Ten

1. Complaint Ten is that Dr Meneghetti prescribed both non-ARTG drugs and ARTG drugs to Patient I in the circumstances listed under that particular. Dr Meneghetti was treating Patient I between March 2016 and May 2016 for a ruptured pectoralis and low libido. She ordered a number of blood tests which indicated an abnormality in DHEA (dehydroepiandrosterone), testosterone and oestradiol levels. The blood tests of 30 March 2016 showed massively increased serum testosterone, very high serum oestradiol and suppressed serum hCG, LH and FSH consistent with excessive doses of testosterone.
2. When she saw Patient I's results for testosterone on 30 March 2016, it showed that he had a reading of 5,306 pmol/L free testosterone. The 'current reference range' is 150-620. Dr Meneghetti said that that level of testosterone concerned her. Despite that concern, Dr Meneghetti prescribed more testosterone to Patient I on the same day. She said that was because Patient I insisted on a further prescription.
3. Prescribing Patient I with testosterone in the circumstances described above is not consistent with Dr Meneghetti's assertion that she took account of the blood test results or that she cared about her patient's welfare. Rather than exercising her own independent judgment based on the clinical history, physical examination and diagnostic tests, Dr Meneghetti just did what Patient I asked her to do.
4. We find Complaint Ten to have been proven.

Clinical and medical records - Complaints Eleven and Twelve

1. Complaint Eleven is that Dr Meneghetti failed to properly maintain contemporaneous clinical records when she discarded and destroyed her handwritten consultation notes for Patients D, E, F, G, H and I and replaced them with a 'Summary of Medical Records'. Dr Meneghetti failed to maintain any clinical records for Patients B and C.
2. Complaint Twelve is that Dr Meneghetti failed to maintain adequate medical records in accordance with Schedule 2 of the National Law for Patients B, C, D, E, F, G, H and I.
3. Mr Dank provided a 12 page patient questionnaire to some patients. Patients were supposed to complete that document when they saw Mr Dank but Dr Meneghetti said that she did not always receive a copy. The only questionnaire that was in evidence was for Patient E. It contained virtually no information except his name and date of birth. Dr Meneghetti said that she would review the questionnaire when she consulted the patient but that it was not incorporated into the patient's computerised medical record despite her requests for Mr Dank to do so. In oral evidence, Dr Meneghetti said that the questionnaire should have been scanned into the computer but patients did not always fill it in. We agree with Professor Handelsman's comments that the questionnaire is too long and detailed and is not a substitute for taking a proper medical history.
4. Dr Meneghetti provided some records for Mr Dank and for Patients D to I. No records were provided for Patients B and C. The records for Mr Dank comprised a five page clinical record outlining some family history, social history, current medications and progress notes for visits. No records of this kind were provided for any other patient. For Patients D to I, there were no contemporaneous records, just a Summary of the Medical Records. Dr Meneghetti stated that these were faithful reproductions of her contemporaneous handwritten records which she had destroyed. She admits that she made these records after the HCCC told her about the complaint.
5. The Summary of the Medical Records for the six patients, D to I, provide some detailed information under headings including 'diagnosis', 'assessment', 'prescribing rationale' and 'treatment plan'. For some patients, no detail is provided under one or more of these headings. For other patients, no detail is provided at all. For example, for Patient E, Dr Meneghetti writes under the heading 'prescribing rationale', "Due to his records being unavailable (due to IT issues), I cannot confirm any details in relation to his prescribing rationale... Please note there are no further records."
6. When the HCCC was investigating the complaint in February 2017, they asked for her records. In an interview with the HCCC on 23 August 2017, Dr Meneghetti says she looked for those records in the computer but could not find all of them. She then explained that even before February 2017, she would type information on the computer but when she looked again, it was not there. During her interview with officers from the HCCC, she said that she did not record what was said during consultations with some patients because there were "...Too many patients and I didn't have the time, it's very difficult to write when you are talking to a person. You look at the eyes of the person but if you are writing you write (indistinct) the patient and I find it extremely difficult to do both things at the same time".
7. Dr Meneghetti acknowledges that she is "not fully computer literate" and tends to "record handwritten patient notes". She said her usual practice is to take short hand written notes during the consultation and then destroy them after she has entered them into the computer. That takes her a ''significant amount of time''. She insisted that it was her usual practice to take a medical history from each patient.
8. Dr Meneghetti was using Medical Director software from 2014 to 2016. When asked how she remembered the details of the diagnosis, assessment, prescribing rationale and treatment plan for most, but not all patients, Dr Meneghetti said she had entered the clinical records into the computer so many times, and subsequently lost them, that she remembered the information. She insisted that the clinical information which she had typed into the computer had been lost, although she conceded that she may not have typed in the information for one patient.
9. During the Tribunal hearing, Dr Meneghetti suggested, for the first time, that she might have telephoned Patient E to obtain the details she gave in the Summaries of Medical Records. She denied inventing that evidence but admitted that she had no independent recollection of many patients. When it was put to her that she made no records at all for Patient D, she said she was sure that she had made records. When it was put to her again that she made no contemporaneous records for any of these patients and that she treated them differently from her other patients, she said: You may be right but I doubt it. I don't know what happened. That's what it looks like but it's not normal.
10. This answer persuades us that Dr Meneghetti was not being completely candid in the evidence she gave to the Tribunal about her clinical records.
11. The absence of contemporaneous records in relation to Patients B to I, can be contrasted with the records provided for Mr Dank. Under the heading "complete record," patient details, allergies, family history, some social history and current medications are recorded, but no clinical history or examination at each visit. In addition, there are progress notes recording prescriptions given and the dates. Although these records are inadequate, it is notable that they remained in Dr Meneghetti's computer system.
12. In December 2015, Dr Meneghetti says she retained PCSOFT Tech Support Services (the IT company) to investigate the lost data and manage the IT system. However, in her evidence to the HCCC she said that she admitted that the reason she engaged that company in 2015 was not that she was having problems with the computer. She then said that she contacted them in 2017 and they did some checking remotely. In her statement, Dr Meneghetti wrote that the IT company would search individual patient's names and other identifying information to determine whether a record was active. If it was not active, Dr Meneghetti concluded that it had been lost. There was no documentary evidence from the IT company about any of the work that they did. When asked whether she could remember when her receptionist contacted that company, Dr Meneghetti could not recall.
13. Dr Meneghetti has not given a full and frank explanation for the absence of contemporaneous medical records or the basis on which she reconstructed those records. Her explanation that she may have telephoned patients to ask them to give details so that she could re-create medical records is not credible. That is such a significant and unusual thing to do that if she had done it, she is likely to have remembered doing so. Secondly, it is notable that Dr Meneghetti had hand written clinical records for all her patients other than those who were referred to her by Mr Dank. She had a different system for recording their information from the system she had for recording the information for Patients B to I. Dr Meneghetti's credibility on this issue is further undermined by the lack of any direct evidence from the IT company about the inquiries they made or what they found.
14. We find Complaints Eleven and Twelve to have been proven.

Professional misconduct - Complaint Thirteen

1. Complaint Thirteen is that Dr Meneghetti is guilty of professional misconduct in that she has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration.
2. Under s 139E of the National Law a practitioner is guilty of professional misconduct if the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner'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 the suspension or cancellation of the practitioner's registration.
3. The following points are taken from the cases of Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200; Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99 at [18]-[ 24] and Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3: 1. the essential task in determining whether relevant conduct is professional misconduct is a characterisation of it; 2. the characterisation requires a focus on the nature of the conduct in terms of its seriousness and not its consequences; 3. the seriousness of unsatisfactory professional conduct depends on the extent to which it departs from proper standards, though additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public; 4. characterisation of conduct is not to be determined by working backwards from a view that the Tribunal does or does not ultimately wish to suspend or cancel a Respondent's registration. Rather, the characterisation of the conduct must come first; 5. to constitute professional misconduct, the relevant conduct must be found to have the capacity to justify an order for suspension or cancellation of registration though that does not necessarily mean that such an order should be made in a particular case; and 6. "misconduct in a professional respect" (although that language is no longer used under s 139E of the National Law) means conduct that incurs the strong reprobation of colleagues of good repute and competence.
4. Each allegation of unsatisfactory professional conduct in Complaints One to Twelve is relied on both individually and cumulatively.
5. In evaluating whether the conduct is of a sufficiently serious nature to justify suspension or cancellation, relevant circumstances include the nature and duration of the conduct, an assessment of where the conduct falls on the spectrum of unsatisfactory professional conduct and any relevant mitigating factors.
6. We have found each particular in the complaints to be proven. Among many other things, Dr Meneghetti prescribed large amounts of dexamphetamine without an authority. She prescribed ARTG drugs without conducting an appropriate assessment of the patient, without a proper therapeutic purpose and in excessive quantities. She prescribed non-ARTG drugs when there were no valid medical indications for use of those drugs and without reliable evidence of the quality, safety or efficacy of those drugs. She knew from the start that she should not have been prescribing these substances to any of these patients.
7. Rather than deciding what substances to prescribe based on a patient's clinical history, physical examination and diagnostic tests, Dr Meneghetti prescribed the substances Mr Dank told her to prescribe. In several cases blood tests later revealed that the patients had significantly high serum testosterone (Patients G and I), dangerously high insulin levels (Patients I, G and F) or very high cholesterol levels (Patient G). Dr Meneghetti did not act on these results or any of the other abnormal results from blood tests. Rather, she continued to prescribe the substances she had been directed to prescribe. That behaviour demonstrates that she had no concern for the patients' welfare. On the spectrum of unsatisfactory professional conduct, Dr Meneghetti's conduct, both individually and cumulatively, is towards the more serious end of the scale.
8. The conduct took place over a period of approximately 18 months, from December 2014 to May 2016. Dr Meneghetti continued to prescribe the substances to patients even after she was named in an article in the Daily Telegraph.
9. For these reasons, and for the reasons given by Professor Handelsman in his expert report, we find Dr Meneghetti to be guilty of professional misconduct.

Function of protective orders

1. The objective and guiding principle when exercising functions under the National Law is that "the protection of the health and safety of the public" is "the paramount consideration": National Law, s 3A. The primary reason for making protective orders is to protect the public, not to punish the practitioner. As the High Court said in an analogous context involving the disbarment of a legal practitioner: Although it is sometimes referred to as the 'penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege. (Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202)
2. In Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Wright J at [88] summarised that principle and four other principles underlying the purpose of orders made under Part 8, Division 3, Sub Division 6. (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].
3. Shortly after the Appeal Panel summarised these principles, the Court of Appeal held in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], that protecting the health and safety of the public "includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession."
4. The aim of protective orders is not only to protect the public from further misconduct, but to deter other practitioners from engaging in such conduct: Health Care Complaints Commission v King [2012] NSWMT 9 at [27].

Dr Meneghetti's proposal

1. Dr Meneghetti proposes that she be registered to work in general practice, but only in a group practice and subject to 'Category B' supervision in accordance with The Medical Council of NSW's 'Compliance Policy - Supervision'. Alternatively, if that is not acceptable to the Tribunal, she proposes that she be permitted to continue her current practice of minor, non-surgical cosmetic medical procedures with similar conditions apart from the group practice and supervision conditions.
2. Dr Meneghetti lists the following factors that are said to be in her favour: in excess of 20 years of practice without any other complaint; there is no suggestion that she lacks the skill or capacity to be a good general practitioner; she has abided by the conditions imposed by the Medical Council; the audit report attests to her adequate record-keeping; she is remorseful and has insight; she is willing to be subject to a supervision condition and she would not be prescribing any substances under Schedule 8 or Schedule 4D.

HCCC's proposal

1. The HCCC proposes that Dr Meneghetti's registration be cancelled and that she be prevented from re-applying for 18 months from the date of this decision.

Current practice and professional education

1. Dr Meneghetti is currently performing minor (non-surgical) medical procedures as a general practitioner with conditions on her registration. Two audit reports have been produced of Dr Meneghetti's current practice - one dated 26 September 2017 and the other dated 12 January 2018. A third audit has been conducted but no report was available at the time of the hearing. The September 2018 report concluded that Dr Meneghetti was fully compliant with the conditions and that her records were adequate for the restricted scope of her current practice. The January 2018 report concluded that Dr Meneghetti appears to be compliant with the conditions of registration. The report added that her "files in general are satisfactory and most files observed would enable another cosmetic practitioner to easily take over the care of the patient."
2. As of 11 October 2019, Dr Meneghetti had 145 points for the 2017 to 2019 triennium. She is only required to obtain 130 points. During the hearing we noted that Dr Meneghetti has not attended any courses on professional ethics. When that point was raised, she agreed to complete such a course as one of the conditions on her registration.

Mentor scheme

1. Since November 2019, Dr Meneghetti has been participating in what she called a training regime with a mentor, Dr Dai-Bang Nguyen, at the Neeta City Medical Dental and Specialists Centre. There is no formal agreement about the nature or purpose of this relationship but Dr Nguyen wrote to Dr Meneghetti on 11 October 2019 outlining what the training regime would involve. Dr Nguyen would train her on the use of the clinic's medical software and remind her of resources which will assist in her practice. In addition, he would update her on changes that have occurred in general practice since 2016. Dr Meneghetti said that she has been observing Dr Nguyen twice a week for 4 hours a day since November 2019. The manager of that practice, Ms Lam, set out her understanding of the role Dr Meneghetti would play at the practice. She would mainly perform cosmetic procedures but would also do some general practice consultations.

References and assistance to police

1. Five people who were either professional colleagues or patients gave Dr Meneghetti a positive reference. These patients and health professionals value Dr Meneghetti's contribution. However, they did not speak from an informed understanding of the nature and seriousness of Dr Meneghetti's conduct.
2. We note that Dr Meneghetti is assisting the police with further inquiries into allegations against Mr Dank. That is commendable, and suggests that she is unlikely to engage in further misconduct of this kind.

Remorse and insight

1. We accept that Dr Meneghetti is sorry for what she did and extremely disappointed that she had let her standards slip below the standards required of a general practitioner.
2. However, Dr Meneghetti was not completely candid with the investigating bodies about what she knew about the substances, why she prescribed them in the first place, why she did not have a complete set of clinical records and the extent to which she felt threatened or intimidated by Mr Dank. At the hearing, she said she took full responsibility but clung to some of these assertions and explanations.

Conclusion

1. We find that Dr Meneghetti has been practicing without any other complaint for more than 20 years. She has the skill to continue her current practice of minor, non-surgical cosmetic medical procedures with the conditions she has proposed. If we registered her to work in general practice, she would need to do so under supervision and be subject, at least, to the other conditions she has proposed. Belatedly and reluctantly, Dr Meneghetti came close to accepting responsibility for her conduct. In all the circumstances, it is highly unlikely that she would engage in further misconduct if we permitted her to continue to practise with appropriate conditions in place.
2. Protective orders are designed, not only to protect the public from further misconduct, but also to deter other practitioners from engaging in such conduct. The conduct in this case is so serious and continued for so long, that cancellation of her registration is necessary to maintain confidence in the medical profession. The HCCC proposed that Dr Meneghetti be prevented from re-applying for registration for 18 months. We agree that that is an appropriate period in all the circumstances.

Costs

1. The HCCC seeks an order that Dr Meneghetti pay its costs as agreed or assessed. The Tribunal has power to order that one party should pay another party's costs: National Law, Sch 5D, cl 13. The general rule is that the unsuccessful party should pay the successful party's costs. The HCCC was successful in these proceedings and there was no disentitling conduct. Dr Meneghetti did not oppose an order for costs.

Orders 1. The registration of Dr Meneghetti as a medical practitioner is cancelled. 2. Dr Meneghetti may not apply for a review of this order for 18 months from the date of this decision. 3. Dr Meneghetti is to pay the Health Care Complaints Commission's costs as agreed, or if not agreed, as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 16 April 2020