Health Care Complaints Commission v Morsingh - [2023] NSWCATOD 161 - NSWCATOD 2023 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Morsingh

[2023] NSWCATOD 161

NCAT Occupational|2023-11-03|Before: Dr J

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Court

NCAT Occupational

Decision date

2023-11-03

Before

Dr J

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

Introduction

In an earlier decision (the stage one decision) we found that Mr Morsingh had engaged in "unsatisfactory professional conduct" as defined in the Health Practitioner Regulation National Law (NSW) (the National Law): Health Care Complaints Commission v Morsingh [2023] NSWCATOD 118. Our findings related to Mr Morsingh's prescribing of so called Schedule 8 and Schedule 4D medications to five patients. Those medications, including alprazolam, diazepam, zolpidem and testosterone are subject to stringent prescribing safeguards and protocols because they are liable to abuse, misuse and diversion.
In these proceedings (the stage two proceedings) we will decide whether Mr Morsingh's "unsatisfactory professional conduct", when taken together, amounts to "professional misconduct" as defined in the National Law. That is the only contested issue.
Mr Morsingh has been a general practitioner for 27 years. He says he has learnt much about the administrative requirements for prescribing Schedule 8 and Schedule 4D medications particularly the need for early specialist review and external review by another practitioner. He would like to work as a general practitioner again. If he were permitted to do so he would avoid practising in the higher risk areas of management of chronic pain and prescription of medicines prone to addiction until completing any courses or other conditions required by the Medical Council of NSW.
The Health Care Complaints Commission (HCCC) acknowledged that Mr Morsingh has expressed remorse in his statement dated 20 October 2023. He was not required for cross-examination and the Tribunal did not have any questions for him. The HCCC submits that the appropriate order is for Mr Morsingh to complete an educational course on prescribing Schedule 8 and Schedule 4D medications before he can be registered. (The Tribunal cancelled Mr Morsingh's registration on 2 March 2022 for unrelated conduct and prohibited him from re-applying for registration for two years.) Mr Morsingh agrees to such an order, although he says it is not necessary because he would undertake to the Tribunal to complete such a course.

[2]

What is "professional misconduct"?

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.
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.
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.
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.
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).

[6]

Inappropriately prescribing diazepam to Patient C - Complaint 1.9

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.
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.
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.
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.
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.
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.

[7]

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

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.
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.
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.

[8]

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

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."
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.
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.
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.
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.

Health Care Complaints Commission v Morsingh

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