Health Care Complaints Commission v Morsingh

What is "professional misconduct"?

1. Professional misconduct is essentially "unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration". The full definition of "professional misconduct" is in s 139E of the National Law. 139E Meaning of "professional misconduct" [NSW] For the purposes 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.
2. We understand the HCCC's submission to be that when considered together, the five findings of unsatisfactory professional conduct in the stage one decision amount to professional misconduct.
3. In this case the "unsatisfactory professional conduct" was of the kind defined in s 139B(1)(a) of the National Law: 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.
4. Courts have described the degree of seriousness which would justify cancellation or suspension of a medical practitioner's registration in various ways. For example in Qidwai v Brown [1984] 1 NSWLR 100 at 104 Priestley JA spoke of conduct that incurs the strong reprobation of colleagues of good repute and competence. The Court of Appeal said in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638 that: The gravity of professional misconduct is not to be measure by reference to the worst cases, but by the extent to which it departs from the proper standards.
5. In the more recent case of Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [20] gave the following guidance: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).

Findings of unsatisfactory professional conduct and assessment of the seriousness of that conduct

1. The Tribunal found five of the particulars in Complaint One, each relating to a different patient, to have been proven (Complaint 1.4, 1.8, 1.9, 1.12 and 1.13). In summary, those particulars were that Mr Morsingh: 1. prescribed alprazolam to Patient A for a period of 8 months without an authority from the NSW Ministry of Health; 2. prescribed testosterone to Patient B for nearly two years without undertaking pathology testing or referring him to an appropriate specialist; 3. inappropriately prescribed diazepam to Patient C; 4. failed to recognise the dangers of prescribing narcotics such as tramadol and oxycodone in combination with benzodiazepines to Patient E; and 5. prescribed zolpidem (Stilnox) to Patient F without identifying that he was exhibiting drug seeking behaviour.

Prescribing alprazolam to Patient A without an authority - Complaint 1.4

1. Alprazolam is a benzodiazepine used for the short-term relief of anxiety or for treating panic disorders. It is addictive and liable to illicit use. It is listed in Schedule 8 to the Poisons List. That list is proclaimed under s 8 of the Poisons and Therapeutic Goods Act. Because alprazolam is addictive, possession, supply, prescribing and use is strictly limited. An authority from the NSW Ministry of Health is required to prescribe alprazolam for a drug dependent person or a non-drug dependent person who is prescribed alprazolam continuously for more than 2 months: Poisons and Therapeutic Goods Act 1966 (NSW), s 28(3).
2. In the stage one proceedings at [46] we noted that Mr Morsingh admits this particular. Dr Kertesz, an expert witness, expressed the opinion that the prescribing of alprazolam itself was reasonable, but Mr Morsingh should have obtained an authority from the NSW Ministry of Health.
3. Mr Morsingh was aware of the requirement to obtain an authority. He must have known that Patient A was a "drug dependent person" and, in any case, he was prescribing alprazolam for more than 2 months. The failure to obtain an authority was not, as Mr Morsingh's lawyer suggested, merely an administrative error. Applying for an authority would have drawn Mr Morsingh's attention to the questions he should have been asking before prescribing this kind of medication. Those questions include whether the patient is drug dependent, whether the patient is currently enrolled in the Opioid Treatment Program and whether a psychiatrist has reviewed the patient. Mr Morsingh knowingly failed to obtain an authority that was designed to avoid alprazolam being misused or used illicitly. However, in circumstances where the prescribing itself was reasonable, this conduct is not serious enough to justify suspension or cancellation of Mr Morsingh's registration.

Prescribing testosterone to Patient B - Complaint 1.8

1. This complaint is that: Between 1 February 2018 and 12 November 2019, the practitioner inappropriately prescribed a Schedule 4B special restricted substance, Testosterone to Patient B in circumstances where he failed to: (a) undertake accurate pathology testing in relation to Patient B; (b) make appropriate referrals to specialists regarding Patient B's use of Testosterone."
2. Testosterone is a "special restricted substance" listed in Schedule 4, Appendix B of the Poisons List. Schedule 4 Appendix D substances are prescription only medications which are controlled because they are liable to misuse and abuse.
3. At [84] of the stage one decision we made the following finding: We are satisfied that Mr Morsingh felt under some pressure to prescribe testosterone to Patient B. However, on the basis of the evidence, we would not characterise that pressure as "duress". There were no overt or covert threats, nor was there any other intimidating behaviour. The prescribing of testosterone without undertaking pathology testing and referring Patient B to an appropriate specialist demonstrates that Mr Morsingh's skill and judgment are significantly below the relevant standard. A practitioner of his level of training and experience would be expected to have undertaken those tasks even if he felt some level of pressure from the patient.
4. Undertaking accurate pathology testing and making appropriate referrals to specialists are measures designed to ensure that only patients who genuinely need testosterone for a therapeutic purpose have access to it. While this conduct is significantly below the relevant standard, it is it is not serious enough to justify suspension or cancellation of Mr Morsingh's registration.

Inappropriately prescribing diazepam to Patient C - Complaint 1.9

1. This complaint is that: Between 17 April 2019 and 25 April 2020, the practitioner inappropriately prescribed a Schedule 4D restricted substance, Diazepam to Patient C, on the dates and in the quantities as set out in Schedule C [to the Complaint], in circumstances where the practitioner failed to: (a) undertake an appropriate history prior to prescribing Diazepam; (b) perform an appropriate examination prior to prescribing Diazepam; (c) conduct appropriate investigations in relation to Patient C's long-term use of Diazepam; (d) prepare a therapeutic plan for long term management of prescribing Diazepam to Patient C; (e) seek appropriate advice from a specialist trained or experienced in the long-term management of patients on opiates and benzodiazepines; (f) appropriately consider that Patient C was on the OTP when prescribing diazepam long term to Patient C; (g) make timely and appropriate referrals to specialists regarding Patient C's use of Diazepam.
2. We described diazepam at [87] of the stage one decision: 87 Diazepam is a fast-acting, long-lasting benzodiazepine commonly used to treat anxiety disorders and alcohol detoxification, acute recurrent seizures, severe muscle spasms, and spasticity associated with neurologic disorders. Because it is a drug which may be abused and is addictive, it is listed under Schedule 4, Appendix D of the Poisons List which is proclaimed under s 8 of the Poisons and Therapeutic Goods Act. It is also known by the brand name Valium.
3. At [88] we found that despite the fact that Patient C was a long term patient of Mr Morsingh, when prescribing diazepam for about 12 months, he did not do any of the things listed in Complaint 1.9. We also found that Mr Morsingh prescribed diazepam to Patient C while he was being treated with methadone for opioid dependence.
4. Mr Morsingh says that Patient C's behaviour, including the fact that he asked for private scripts, did not lead him to suspect that he was on the Opioid Treatment Program (OTP). At the time, if a practitioner wrote private scripts, the authorities administering the OTP could not see those prescriptions. Looking back, Mr Morsingh says it would have been prudent for him to make inquiries about whether Patient C was on the OTP. We agree that the fact that Patient C requested private scripts should have led Mr Morsingh to make further inquiries.
5. In September 2019, when Patient C had been taking diazepam for more than 10 years, he told Mr Morsingh that two men had assaulted him and he had lost a script. Patient C reported the incident to police. A "lost" script is one of the red flags for potential abuse or diversion of diazepam and should have led Mr Morsingh to be suspicious that Patient C was either misusing or diverting the medication. We made no finding as to whether or not Patient C did, in fact, lose the script. Mr Morsingh acknowledges that while prescribing diazepam was therapeutically justified, he should have referred Patient C to specialists and attempted to wean him off diazepam.
6. This conduct is more serious because it went on for a considerable period of time and despite the 'red flags' of requesting private scripts and 'lost' medication, Mr Morsingh failed to take appropriate steps to ensure that Patient C was not misusing, abusing or diverting diazepam. While bordering on professional misconduct, in all the circumstances, it is not serious enough to justify suspension or cancellation of Mr Morsingh's registration.

Inappropriate prescribing of Schedule 8 and Schedule 4D substances to Patient E - Complaint 1.9

1. This complaint is that: Between 4 April 2019 and 29 April 2020 the practitioner inappropriately prescribed Schedule 8 drug of addiction, Oxycodone and Schedule 4D restricted substances Diazepam and Oxazepam and Schedule 4 drug, Tramadol in combination to Patient E in circumstances where Patient E had severe respiratory co-morbidity.
2. At [121] - [122] of the stage one decision we concluded that: 121 Diazepam and oxazepam are both benzodiazepines which suppress the central nervous system. In his written report, Dr Kertesz expressed the view that there is a significant risk of synergistic effects from combining medications from similar or the same families of chemical structure. The concurrent use of benzodiazepines is to be discouraged. Because he has respiratory issues, Patient E was particularly at risk when taking these two drugs in combination. Mr Morsingh's response to that risk was to weigh it against other risks and to follow the lead of the sleep specialist Dr Chuong who was aware that these drugs were being prescribed. Mr Morsingh says there were extenuating clinical circumstances justifying this prescribing. 122 A recognised treatment for REM sleep behaviour disorder is a specific benzodiazepine called clonazepam. Mr Morsingh could not explain why he had not prescribed that medication instead of combining two other benzodiazepines. His only response was that other doctors had previously prescribed that combination of drugs. He acknowledged that it was his responsibility to make his own assessment and form his own opinion before prescribing any medication. In addition, Mr Morsingh failed to recognise the dangers of prescribing narcotics such as tramadol and oxycodone in combination with benzodiazepines. That conduct is significantly below the relevant standard.
3. Mr Morsingh's conduct in prescribing those medications at the same time, when Patient E had severe respiratory co-morbidity, put Patient E at risk. The fact that other specialists were aware that these combinations of medication were being prescribed, means that the conduct, although significantly below the relevant standard, is not serious enough to justify suspension or cancellation of Mr Morsingh's registration.

Inappropriate prescribing of zolpidem (Stilnox) to Patient F - Complaint 1.13

1. This complaint is that: Between 17 February 2019 and 7 December 2019 the practitioner inappropriately prescribed a Schedule 4D restricted substance, Zolpidem (also known as Stilnox) to Patient F in circumstances where the practitioner failed to: (a) recognise and/or diagnose Patient F's excessive use and addiction to Stilnox; (b) appropriately treat Patient F's insomnia by means other than pharmacological; (c) provide an appropriate management plan for prescribing Stilnox to Patient F when the practitioner knew or ought to have known that Patient F was exhibiting drug seeking behaviour; (d) make an appropriate or timely referral to a specialist to treat Patient F's insomnia."
2. Zolpidem is currently listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW). At the time of the complaint it was a Schedule 4 medication.
3. At [126] - [ 127] we made the following findings: 126 Mr Morsingh prescribed Zolpidem to Patient F for about 12 months. He wrote eight scripts during that period. There are several comments in Patient F's notes about excessive use of this medication but no challenge about excessive requests and excessive prescribing. 127 According to Dr Kertesz, Mr Morsingh did not attempt to review and regulate the quantities of Zolpidem prescribed. Mr Morsingh recognised that Patient A was abusing Zolpidem but did not attempt to reduce the dose or cease prescribing. His failure to treat Patient F's insomnia by other means, provide an appropriate management plan, recognise that Patient F was exhibiting drug seeking behaviour, or refer Patient F to specialists, is significantly below the relevant standard.
4. Mr Morsingh's evidence about Patient F was that by 2019 he had been taking zolpidem (Stilnox) for more than 10 years. In 2019 when Mr Morsingh saw Patient F, he was down to three Stilnox tablets a day. By December 2019 Mr Morsingh had successfully weaned Patient F off Stilnox, but acknowledges that he should have done so years earlier. He also acknowledged that he should have referred Patient F to a specialist for insomnia.
5. By delaying weaning Patient F off Stilnox and failing to refer him to a specialist Mr Morsingh was not providing adequate care for Patient F. That conduct continued for almost a year. The conduct is significantly below the relevant standard but not serious enough to justify suspension or cancellation of Mr Morsingh's registration.

Is conduct sufficiently serious to amount to professional misconduct when considered together?

1. Even if a single instance of unsatisfactory professional conduct does not meet the definition of "professional misconduct", more than one instance, when considered together, may be sufficiently serious to justify cancellation or suspension of a person's registration.
2. The conduct taken together relates to five patients. Each case is an example of Mr Morsingh failing to apply the appropriate safeguards and protocols, including legal requirements, when prescribing medications which are liable to abuse, misuse or diversion. Cumulatively, these instances of unsatisfactory professional conduct come very close to the level of seriousness required for a finding of professional misconduct. However, they do not quite meet that standard in this case because Mr Morsingh did make some efforts to refer patients to specialists and wean them off medications. While there were a few 'red flags' that Mr Morsingh should have addressed, this is not a case of Mr Morsingh persistently and routinely failed to meet the relevant standard. In addition, his reliance on specialists to pick up on defective prescribing is not the most serious kind of unsatisfactory professional conduct.

What orders should we make?

1. We have found that Mr Morsingh's conduct does not amount to "professional misconduct". That means that we cannot make an order that we would have suspended or cancelled his registration if he had been registered: National Law, s 149C. In any case, the Commission did not seek such an order.
2. Having found that Mr Morsingh's conduct constitutes "unsatisfactory professional conduct" we have power to do the things listed in 149A of the National Law: National Law, s 149A(3). Those things include imposing conditions or ordering that Mr Morsingh complete an educational course. Any such order can be expressed either as preventing Mr Morsingh from being registered unless the order is complied with or imposing certain conditions when he is registered. Section 149A(3) of the National Law provides that: (3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only - (a) to prevent the practitioner being registered unless the order is complied with; or (b) to require the conditions concerned to be imposed when the practitioner is registered.
3. At [131] of the stage one proceedings we stated that: If we do not find Dr Morsingh guilty of professional misconduct in the second stage of the proceedings, we do not have any of the general powers to caution, reprimand or impose conditions on Dr Morsingh's registration. Those powers are available only in relation to health practitioners who are registered: National Law, s 149A.
4. That statement is not correct. Section 149A(3) of the National Law allows the Tribunal to make orders under s 149A, but the orders will only have effect in the circumstances listed in s 149A(3). The appropriate order is to require Mr Morsingh to complete an educational course on prescribing Schedule 8 and Schedule 4D medications.

Orders 1. Under s 149A(1)(d) of the Health Practitioner Regulation National Law (NSW), Mr Morsingh must complete an educational course on prescribing Schedule 8 and Schedule 4D medications. 2. Under s 149A(3) of the ) of the Health Practitioner Regulation National Law (NSW), Mr Morsingh is prevented from being registered unless Order 1 is complied with.

Costs

1. Following the stage one proceedings we reserved the question of whether there should be a costs order. In written submissions provided at the stage two hearing, Mr Morsingh applied for costs of the stage one hearing. Mr Morsingh also provided submissions as to who should pay the costs of the stage two hearing. Because that issue depends on the outcome of these proceedings, and the HCCC was not in a position to provide submissions on a hypothetical or alternative basis, we make the following directions: 1. Within 7 days of the publication of these reasons the Health Care Complaints Commission is to: a. provide submissions in reply to Mr Morsingh's application for costs; and b. make any application for costs 2. Within 7 days of receiving those submissions, Mr Morsingh is to: a. provide submissions in reply to the Health Care Complaints Commission's application for costs; and b. provide any further submissions on his application for costs. 3. Within 7 days of receiving those submissions, the Health Care Complaints Commission is to: a. provide any further submissions on its application for costs. Note to parties: there is a limit of 5 pages for each submission.

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: 10 November 2023