Health Care Complaints Commission v Mohammadi [2021] NSWCATOD 172 | Case summary

Health Care Complaints Commission v Mohammadi [2021] NSWCATOD 172 | Case summary | Zoe

Dr Mohammadi's understanding of the strength of fentanyl

Dr Mohammadi did not understand how strong fentanyl is compared with morphine. At an interview conducted by the PRU in September 2017, Dr Mohammadi estimated that a 100mcg/hr fentanyl patch would equate to roughly 180mg of oral morphine delivered over five days. In fact such a dose is closer to a dose of 300mg of oral morphine a day. (See Royal Australian and New Zealand College of Anaesthetists (ANZCA) entitled 'Opioid Dose Equivalence' - calculation of oral Morphine Equivalent Daily Dose online, viewed 5 October 2017)
The oMEDD (oral Morphine Equivalent Daily Dose) for the transdermal form of fentanyl 100mcg/hr is between 240 and 400mg of morphine per day and the average is 300mg. Dr Kertesz expressed the view that Dr Mohammadi's knowledge of the strength of fentanyl was inadequate and incorrect. We agree, although we note that Dr Kertesz incorrectly stated in the supplementary report that the strength of fentanyl 25mcg/hr patches was an oMEDD of 360mg of morphine. The correct figure is that 100mcg/hr patches have an oMEDD of 360mg of morphine.
Dr Mohammadi agreed that he would not prescribe 300mg of morphine a day to a patient because of the high risk of side effects and possible death. As to why Dr Mohammadi commenced some patients on the highest dose of fentanyl (100mcg/hr) he said that if the patient said they were on that dose, he continued with it. For patients who were not taking fentanyl , he realises now that it was a mistake to start any patient on a dose of 100mcg/hr. When questioned about the possible harms of commencing a patient on the highest dose of fentanyl , Dr Mohammadi understood that it could suppress breathing and lead to unconsciousness and death. Dr Mohammadi said that he did not hurt any patients.
At Patient A's third visit on 13 December 2016, he told Dr Mohammadi that Panadeine Forte was not working for him. At the next visit on 22 December 2016, Dr Mohammadi prescribed fentanyl patches at 75mcg/hr to apply every three days. That is the second highest available dose of fentanyl. He continued to prescribe 5 patches of 75mcg/hr until 22 February 2017 when he increased the dose to 100mcg/hr, the highest dose available. Dr Mohammadi continued Patient A on that dose until July 2017. Dr Mohammadi said he did so because Patient A had had an accident at work and was suffering from very serious pain and had difficulty walking. Dr Mohammadi said he was sure Patient A was not abusing fentanyl . Dr Mohammadi did not inform himself as to the strength of fentanyl which he could easily have done by consulting an appropriate reference such as the approved product information or by calculating the oMEDD.
We agree with Dr Kertesz's opinion, expressed in his first report, that doses in excess of 75mcg/hr at the initiation of opioid therapy are contraindicated "because of the need to individualise dosing by titrating to the desired analgesic effect".
Complaint 1.2 is proven to the extent that it relates to the strengths or dosages of fentanyl prescribed to Patient A.

[4]

Amount supplied in a given period

The second element of the quantity of the prescription is over-supply. To determine whether Dr Mohammadi has oversupplied fentanyl to any of these patients, the total period of time must be divided by the period for which each prescription lasts. Dr Mohammadi instructed each patient to apply a new patch every three days. Therefore, a script for 5 patches should last for 15 days and a script for 10 patches should last for 30 days. In several cases a patient made an appointment for a new prescription before it was due. On a few occasions, Dr Mohammadi refused to prescribe 'early' but on other occasions he wrote a new prescription. The risks associated with oversupply include that the patient may be taking a greater quantity of the medication than intended, or that the patient may be selling fentanyl on the black market.
The evidence about Dr Kertesz's calculations was contentious because the data on which it was based and some of Dr Kertesz's assumptions were either not definitive or not correct. After he gave evidence, Dr Kertesz was asked to review his first report in relation to the allegation in Complaint 1.2 of excessive prescribing. He prepared a supplementary report dated 9 January 2021. There were also some errors in that report. Below we discuss three areas of contention.
First, Dr Kertesz based his calculations on a total period of time which included a 30 day period after the end of the last prescription. When asked why he used that figure, rather than 15 days, he said it was reasonable because the scripts were for a month. However, not all scripts were for 10 patches (30 days). Some were for 5 patches (15 days). We have calculated the period of time by adding 15 days where the last script was for 5 patches and 30 days where the last script was for 10 patches. Those calculations more accurately reflect the overall period of time the patches would have lasted if taken according to the directions.
Secondly, the number of scripts that Dr Mohammadi wrote was in dispute. The schedules to the complaint have three headings, "Medicare records', "Pharmacy records' and 'Medical records'. Total figures are recorded under each of those headings. The Medicare records are from the Australian Government's health insurance scheme. That figure does not include private scripts. The Pharmacy records are those from particular pharmacies. Informal evidence was given, which we accept, that in preparing the schedules inquiries were only made of certain pharmacies. Finally, the 'Medical records' are from Dr Mohammadi's clinical notes.
We have based our calculations primarily on the records of Dr Mohammadi. The additional information from Medicare records and pharmacy records, while helpful, are more likely to contain inaccuracies or be incomplete. Only a limited number of pharmacies were sampled to obtain the pharmacy record data. Medicare record data would not record any private scripts supplied and may contain data entry errors.
Thirdly, in some cases there is a record of two scripts being dispensed on the same day. Dr Mohammadi wrote two scripts when the patient was tapering off the medication and he wanted to give a dosage which was not available in standard quantities. For example, a composite dose of 37mcg/hr of fentanyl could be obtained by using a 25mcg/hr patch and a 12mcg/hr patch concurrently. Dr Kertesz counted these scripts twice even though they would have been applied at the same time to provide a total dose of 37mcg/hr. We have counted these two scripts as one.
When asked what period would be significant in terms of oversupply, Dr Kertesz said that if there was an excess of 5 or 10 patches being prescribed, that may be regarded as excessive if there is no good explanation for the oversupply. That would equate to a period of between 15 and 30 days of oversupply. He agreed that you would need to read the patient's notes in conjunction with the schedule to determine whether any oversupply was justified. We have taken a more conservative approach. Where the oversupply is for at least 42 days (6 weeks) and that oversupply is not adequately explained in the patient's notes, we consider Dr Mohammadi's conduct to demonstrate that the knowledge, skill or judgment he possessed, or the care he exercised, to be significantly below the relevant standard.
Because of the issues with Dr Kertesz's evidence for this part of the complaint, we have done our own calculations of the extent of any oversupply.

[7]

Patient H

For Patient H, the schedule reflects that there was no record of a consultation in Dr Mohammadi's medical records for 20 March 2015 nor any record in those notes of two scripts having being written on that day. However, there was a record of a pharmacy script number and the name of the pharmacy which dispensed those scripts. We find that that Dr Mohammadi wrote those scripts because they appear in the Pharmacy Dispensing Record and because there is a Medicare Billing Record for a consultation on that day. When he was shown the Medicare Billing Record, Dr Mohammadi conceded that he would have had a consultation with Patient H on that day and written the two scripts.
One of the two scripts was for 12mcg of fentanyl and the other for 25mcg. The intention was for Patient H to use two patches totalling 37mcg. In his supplementary report, Dr Kertesz stated that he has not assumed that the patches were used as directed. However, for the purpose of calculating oversupply, we have assumed that Patient H was following Dr Mohammadi's tapering advice by using the 12mcg/hr and the 25mcg/hr patches together. We have counted these two scripts as one prescription covering a period of 15 days.
Item 41 in Schedule H suggests that Dr Mohammadi prescribed 50mcg/hr of fentanyl on 9 February 2015 as well as a script for 25mcg/hr on the same day. Before that date, Dr Mohammadi had been prescribing combinations of 25mcg/hr and 12mcg/hr presumably to give Patient H a dose of 37mcg/hr as he was tapering. The prescribing of 50mcg/hr (together with 25 mcg/hr) on 9 February 2015 is anomalous in that context. It is also odd that the dispensing pharmacy is named and there is a record of the consultation in Medicare's records, but no record of this consultation in Dr Mohammadi's patient notes or in his medical records. Dr Kertesz assumed that it had been prescribed, but acknowledged that he may not have checked the medical records and agreed that it had probably not been prescribed. We have based our calculation on the assumption that it was not prescribed.
Based on these findings, the total number of patches prescribed during the period from 10 June 2014 to 9 October 2015, is 225. We note that Dr Kertesz miscounted when concluding that there were 260 patches. At page 8 of his supplementary report, Dr Kertesz records 15 patches as being the number prescribed at the composite dose level. That number should be 40 patches. We have not included items 41 and 59 from the schedule as they are not supported by the medical records and may represent errors from pharmacy records.
Dr Kertesz assumed that items 59 and 60 had both been dispensed but agreed that those items could be a duplication even though they were dispensed by different pharmacies. Relying primarily on the medical records we have concluded that one of these is a duplicate. On that basis, the prescribing of fentanyl occurred between 28 January 2014 and 9 October 2015, a period of 618 days. The 225 patches of fentanyl would have been sufficient supply for 675 days. The last prescription was for 5 patches, so we have added 15 days. Over 21 months, the oversupply is 42 days. That is a significant amount of oversupply. That oversupply is not adequately explained in the patient's notes, Dr Mohammadi denies this particular but we find it to have been proved.

[13]

Patient B

Patient B first consulted Dr Mohammadi on 16 February 2014 stating that he had been suffering from pain in his neck and left ankle. Dr Mohammadi examined his ankle and noted that it was 'not swollen', but was 'tender' with 'no deformity' and that movement was 'restricted'. At that first visit, Dr Mohammadi did not record that Patient B had been taking any other medication, and prescribed him 5 patches of 100 mcg/hr fentanyl. He said that he did ask him what medication he had been using and that he told him that none of the medications he had used were helping.
At the second visit on 1 March 2014, Patient B told Dr Mohammadi that he had seen his "pain team" and that his regular GP was away. Dr Mohammadi's notes record that he "told him regarding the narcotics and that I would not prescribe, asked him to not come again for such a script and continue with his own GP". Nevertheless, Dr Mohammadi prescribed a further 5 patches of 100 mcg/hr and advised that the quantity would be reduced to 75 mcg/hr next time.
When asked about this high dosage for a person who had not disclosed that he had been taking fentanyl previously, Dr Mohammadi said that he was in "serious, non-tolerable" pain. Dr Mohammadi acknowledged that it was a mistake to prescribe such a high dosage of fentanyl to a patient who had not been accustomed to that drug. Dr Mohammadi denied that he gives patients the dose they request. On the contrary, he says he assesses their level of pain himself. At the third consultation on 11 March 2014, Dr Mohammadi records, for the first time, that Patient B has been on fentanyl patches of 100 mcg/hr for 6 months. We accept Dr Mohammadi's evidence that that is the first time patient A had expressly disclosed that fact.
In the September 2017 interview with the PRU, Dr Mohammadi explained that he had prescribed the equivalent of 18 individual patches to Patient B on 20 April 2016 because "the patient had been travelling to Brisbane to visit relatives." He agreed that he had been "too soft" with this patient.
Dr Kertesz found that Dr Mohammadi had assumed this patient's management from another doctor. There were numerous discussions between Dr Mohammadi and Patient B about tapering the strength of fentanyl, however no changes were made.
Dr Kertesz's oral evidence was that if a doctor believes the patient to be drug dependent "you simply have to be extremely honest and say, 'I am not going to give you those medications.'" Dr Kertesz went on to observe that it takes a great deal of strength to do that but a doctor should say to the patient words to the effect of, "I'm pretty sure you're drug dependent. You're drug seeking. I would really like to help you but I'm not going to help you by continuing your habit." Dr Kertesz considered this conduct of continuing to prescribe fentanyl 100mcg/hr to Patient B as being significantly below the standard.
Dr Mohammadi's conduct in prescribing the highest dose of fentanyl (100 mcg/hr) to a patient who had not disclosed that he had ever used fentanyl before, is conduct significantly below the relevant standard. The risk to a patient, who was opioid naive of taking that quantity of fentanyl, is extreme. In fact, if this patient had actually not been taking fentanyl, he may well have died if he had suddenly started taking 100mcg/hr of fentanyl.

[42]

Patient D, E, F, G, H, I, J, K, L, M & N

Dr Mohammadi agreed that he had formed the view that Patient D was a drug dependent person. He did not seek an authority to prescribe drugs of addiction to Patient D and agreed it would have been appropriate for him to have done so.
Dr Mohammadi formed the view that Patient E was drug dependent at the very first consultation. He did not seek an authority to prescribe fentanyl to Patient E. Dr Mohammadi continued to prescribe fentanyl to Patient E with the intention of reducing the dose over time.
By 24 November 2013 the Respondent had formed the view that Patient F was a drug dependent person. He did not seek an authority to prescribe to Patient F. He said he had no idea he needed an authority.
By 18 October 2014 Dr Mohammadi formed the view that Patient G was a drug dependent person. He did not seek an authority to prescribe to Patient G. Patient G was initially taking MS Contin, oral morphine. Dr Mohammadi changed Patient G to fentanyl because he thought it was safer than MS Contin which could be injected.
Dr Mohammadi formed the view that Patient H was a drug dependent person. He accepts that Patient H was engaged in drug seeking behavior, but he did not realise this at the time. Dr Mohammadi continued to prescribe fentanyl to Patient H even though he was aware Patient H was on a methadone program. Dr Mohammadi agreed that he did not respond appropriately to Patient H's drug seeking behavior.
On 29 July 2014 Dr Mohammadi was concerned that Patient I was drug dependent. By 20 October 2014 Dr Mohammadi was aware that Patient I was drug dependent. He did not seek an authority to prescribe fentanyl to Patient I. Dr Mohammadi agrees that his prescribing to Patient I was inappropriate.
Dr Mohammadi was aware from 15 February 2014 that Patient J had been identified as a prescription shopper and was exhibiting drug seeking behavior. He now accepts that Patient J was drug dependent. Dr Mohammadi also agrees that prior to his last consultation with Patient J, he formed the view that Patient J was drug dependent. Dr Mohammadi did not seek an authority to prescribe to Patient J.
Dr Mohammadi admitted in oral evidence that he knew Patient K was drug dependent when he was treating him. Dr Mohammadi did not seek an authority to prescribe to Patient K.
Dr Mohammadi agrees that Patient L was a drug dependent person. He did not seek an authority to prescribe to Patient L. Again, he said that he was not aware of the need for an authority.
Dr Mohammadi formed the view that Patient N was a drug dependent person but continued to prescribe fentanyl. He was also aware that Patient N was exhibiting drug seeking behaviour. Dr Mohammadi did not seek an authority to prescribe to Patient N.

[46]

Complaint 3 - professional misconduct

The HCCC submits that, both individually and cumulatively, the particulars of Complaints One and Two demonstrate that Dr Mohammadi has engaged in sufficiently serious conduct, either individually or when taken together, to justify the suspension or cancellation of his registration.
Professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of Dr Mohammadi's registration. Except for the record keeping particulars, the determination of whether conduct amounts to professional misconduct requires, as its starting point, an objective assessment of Dr Mohammadi's conduct against the standard of conduct reasonably expected of an equivalent practitioner. We have found that Dr Mohammadi has extensive experience as a general practitioner, in both group and solo practices. While he has had access to training, he has not availed himself of that opportunity in relation to prescribing Schedule 8 drugs.
The gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 638.
While comparisons are not always instructive, we set out below the attitude of decision makers to conduct similar to that engaged in by Dr Mohammadi.
In HCCC v Nemeth [2012] NSWMT 4 at [51], the Medical Tribunal referred to the Court of Appeal decision in Spicer v NSW Medical Council (Court of Appeal (NSW), 19 February 1981, unrep): "[A] medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law constitutes professional misconduct. In Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981), Hope JA (Reynolds and Hutley JJA agreeing) 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. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner.' …"
The Tribunal also referred to this passage from Spicer v NSW Medical Council in Health Care Complaints Commission v Lo [2016] NSWCATOD 119 at [154]. The Tribunal agreed that prescribing medication contrary to the law can amount to conduct warranting the removal of a practitioner from the Register.
In Health Care Complaints Commission v Suri [2016] NSWCATOD 54 at [88]-[89], the Tribunal was highly critical of a practitioner who had flagrantly disregarded the regulatory scheme applying to drugs of addiction. Similarly in Health Care Complaints Commission v Kwan [2014] NSWCATOD 72 at [28-[29], the Tribunal held that: "It is plain that over-prescribing medications contrary to law by a medical practitioner can amount to conduct warranting the removal of the practitioner's name from the Register of Practitioners. Dr Kwan's conduct was reckless and showed a blatant disregard of the law."
The HCCC submits that the following conduct of Dr Mohammadi's justifies cancellation or suspension: 1. prescribing Schedule 8 drugs to patients without checking whether they were drug dependent; 2. prescribing Schedule 8 drugs to patients in inappropriate dosages; 3. prescribing Schedule 8 drugs to patients for a purpose that did not accord with recognised therapeutic standard; 4. failing to make appropriate and timely referrals for specialist review and advice; 5. failing to respond when patients exhibited drug seeking behaviour; 6. continuing to prescribe Schedule 8 drugs when the practitioner had formed the opinion or ought reasonably to have formed the opinion that the patient was a drug dependent person without the authority to prescribe under s 29 of the Poisons Act; and 7. failing to obtain an authority under s 29 of the Poisons Act to prescribe Patient O, a minor, the type A Schedule 8 drug of addiction.
Dr Mohammadi submits that it is not uncommon for practitioners to be insufficiently aware of several important aspects of practice including behaviour that (at least potentially) might be drug-seeking behaviour; the regulatory regime concerning when an authority to prescribe is required, and further, the method by which to obtain an authority. It was submitted that Dr Mohammadi was ignorant of many of his obligations, but not wilfully reckless. He acknowledged that he did not recognise drug seeking behaviour, particularly in Patient H. That was said to be to his credit. Dr Mohammadi's evidence was said to be characterised by his very frank and candid acceptance of error.
We accept that Dr Mohammadi was ignorant of his obligations to obtain an authority to prescribe fentanyl to patients who he knew or should have known were drug dependent. For six patients he contacted the Prescription Shopping Information Service. However, for Patients F and J he continued to prescribe fentanyl without an authority even though they were identified as being prescription shoppers.
As to the submission that he was not "wilfully reckless", we accept that Dr Mohammadi did not intend to do harm. He thought he was helping these patients by continuing them on fentanyl or by switching to that drug because he wrongly thought it was safer than oral medication. For that reason he prescribed fentanyl to some patients who were not currently taking fentanyl. While not intending to do harm, he was reckless in the doses and quantities he supplied for those patients we have identified.
While admitting that he did not understand how strong fentanyl was or that he needed to obtain an authority to prescribe it, he said he was trying to help patients reduce their intake so they would not suffer withdrawal. Despite that stated intention, for more than two years after Dr Mohammadi first prescribed fentanyl to Patient B, he was still prescribing 100mcg/hr patches. Dr Mohammadi says that was because "the patient was not suitable to do that because his level of pain means that he needed to continue with 100 mcg/hr patches". Dr Kertesz noted that during the entire period, Dr Mohammadi had broached the subject of decreasing the strength of the patches but had been met with considerable resistance.
Dr Mohammadi agrees that he was treating these patients for drug addiction, not for pain. For those patients on workers compensation payment, he prescribed fentanyl because they were not responding to non-narcotic medication.
The fact remains that Dr Mohammadi prescribed a highly potent and addictive drug indicated in the management of chronic pain. Despite his denials and prevarications, we are satisfied that he knew several of the patients were drug seeking and/or drug dependent. He wrongly thought that he was treating their addiction. He oversupplied fentanyl to Patients A, D and H. The potential for abuse and harm, including death, was high.
We find that that Dr Mohammadi prescribed fentanyl with almost no understanding of the potency or risks associated with this drug. He treated several patients over a number of years. This is unsatisfactory professional conduct of the most serious kind and warrants a finding of professional misconduct.

Health Care Complaints Commission v Mohammadi

At a glance

Court

Decision date

Before

Source

Judgment (49 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (9)

Cited By (1)