Health Care Complaints Commission v Nguyen

Background

1. The following matters are not subject of dispute. We accept the matters, unless noted to be an assertion, are proved before us to the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34).
2. The practitioner was born in Vietnam in 1967.
3. In May 1980, the practitioner and his family fled to Malaysia as refugees. In September 1980, the practitioner and his family arrived in Australia. The practitioner attended schools in Australia. Between 1986 and 1987 he commenced an Engineering degree at the University of Sydney, and then unsuccessfully tried to commence studying medicine.
4. In 1988, the practitioner repeated his Higher School Certificate and gained admission to the University of NSW. He graduated with the degrees of Bachelor of Medicine/Bachelor of Surgery from that university in 1996.
5. In January 1996, the practitioner was granted conditional registration in New South Wales to undertake his internship. He was granted general registration in January 1997.
6. In 1998, the practitioner commenced the vocational registration program for general practitioners through the Royal Australian College of General Practitioners.
7. In 2000, the practitioner became a fellow of the Royal Australian College of General Practitioners.
8. Between 1999 and 2001 the practitioner worked as an employee in a general practice in Eastwood, NSW and in 2002 he undertook locum work as a general practitioner in practices at Mt Druitt and Blacktown.
9. In 2004 the practitioner moved to Taree and commenced practising in general practice at Mudford Street, Taree as a sole practitioner. He asserts that he became very busy, that the practice grew too quickly, and he was, for the first time, exposed to the medical needs of the local indigenous community. In 2007 another doctor joined the practice.
10. In 2008 the practitioner moved into larger premises and commenced practising in a practice known as Medisense Health Care (Medisense). The practice was, and is, owned by the practitioner and his former wife. A number of doctors subsequently commenced work at Medisense as contractors. The other doctors were sourced by the practitioner through the Rural Locum Relief Program. The practitioner asserts all the doctors engaged by the practice were consultants who were overseas trained with little or no general practice experience.
11. In 2012 the practitioner's marriage broke down. The practitioner is now divorced and has joint parental responsibility for his three daughters now aged 13, 12 and 7.
12. On 17 February 2015, the practitioner was contacted by the Pharmaceutical Services Unit ("PSU") regarding concerns about inappropriate prescriptions for drugs of addiction.
13. On 11 June 2015, a complaint was made against the practitioner by the PSU which was assessed by the HCCC. It was determined that the Council would hold proceedings pursuant to s 150 of the National Law to determine whether any action should be taken against the practitioner.
14. On 20 June 2015, following the s 150 proceedings, conditions were imposed on the Practitioner's registration pursuant to s 150(1)(b) of the National Law. The conditions, which remained in place at the date of the hearing, are: 1. Practice Conditions 1. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). 2. Not to possess, supply, administer or prescribe any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). 3. To provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Services Unit and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug and Schedule 4 Appendix D drug by 3 July 2015. 4. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions. 1. Health Conditions 1. To attend for treatment by a general practitioner of his choice, at a frequency to be determined by the practitioner and the treating practitioner. To authorise his treating practitioner to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change).

A summary of the practitioner's conceded inappropriate prescribing as set out in the complaint

1. In circumstances where the practitioner has conceded all the particulars of all the complaints it is unnecessary that we conduct a detailed examination of each particular. We will, however, later in these reasons, refer to the reports of the expert retained by the HCCC in relation to aspects of the practitioner's prescribing for the cohort of patients set out in the schedule to the complaint and identified as Patients A to L. However, we think it useful to highlight the gravity of the prescribing offences and record keeping failures that we summarise those practises which are particularised in a summary schedule provided to us by counsel for the HCCC. The accuracy of the schedule was not disputed by the practitioner's counsel.
2. Patient A. The practitioner prescribed to Patient A, a total of 127 scripts for Fentanyl, oxycodone, hydromorphone (S 8 drugs) as well as Phentermine (S 4D) without proper assessment, for an improper purpose without the required authority. He failed to address the patient's drug seeking behaviour and he failed to keep adequate medical records. Scripts provided included "private scripts". 5 November to 17 February 2015
3. Patient B The practitioner prescribed to Patient B a total of 116 scripts for Buprenorphine, oxycodone morphine as well as Temazepam and Diazepam (S 4D) without proper assessment, for an improper purpose, without the required authority. The practitioner failed to address the patient's drug seeking behaviour and he failed to keep appropriate medical records. Scripts provided included private scripts 10 February 2012 to 9 February 2015
4. Patient C The practitioner prescribed Fentanyl for Patient C on 1 occasion without proper assessment, for an improper purpose without the required authority. The practitioner failed to address the patient's drug seeking behaviour and he failed to keep appropriate medical records. 16 June 2013
5. Patient D The practitioner provided Patient D with 3 prescriptions for oxycodone without proper assessment for an improper purpose without the required authority and he failed to keep appropriate medical records. The practitioner failed to address the patient's drug seeking behaviour. Scripts provided included private scripts. 15 June 2013 to 20 October 2013.
6. Patient E The practitioner provided Patient E with 3 prescriptions including scripts for Alprazolam (S 8 drug) and Alprazolam Clonazepam (S 4D drug) without proper assessment, and for an improper purpose. He failed to make a specialist referral, failed to address the patient's drug seeking behaviour and failed to keep proper medical records. Scripts provided included private scripts. 17 May 2013 and 8 December 2014.
7. Patient F The practitioner provided Patient F with 11 prescriptions for Fentanyl without proper assessment, for an improper purpose, and without an appropriate authority. He failed to address the patient's drug seeking behaviour and failed to keep proper medical records. Scripts provided included private scripts. 25 June 2014 to 25 August 2014.
8. Patient G The practitioner provided Patient G with 4 prescriptions for Fentanyl without proper assessment, for an improper purpose and without an appropriate authority. He failed to make a specialist referral or to address the patient's drug seeking behaviour. He also failed to keep appropriate medical records. 11 August 2013 to 29 September 2013.
9. Patient H The practitioner provided 8 prescriptions for Fentanyl (S 8 drug) for Patient H without proper assessment, for an improper purpose and/or quantity, without an appropriate authority. He failed to make a specialist referral, failed to obtain an appropriate authority and to keep appropriate medical records. He also wrote private scripts for this patient. 10 February 2011 to 18 September 2013
10. Patient I The practitioner provided 73 prescriptions for Patient I for oxycodone morphine (S 8 drugs) without proper assessment, an improper purpose, without an appropriate authority. He failed to make a specialist referral and failed to keep appropriate medical records. He also wrote private scripts for this patient. 5 February 2010 to 25 February 2014
11. Patient J The practitioner provided 18 prescriptions for Patient J for oxycodone, morphine, pethidine (S 8) ad Diazepam (S 4D) without proper assessment, for an improper purpose, and without an appropriate authority. He failed to make a specialist referral. He prescribed S 8 and S 4D drugs in combination and failed to keep appropriate medical records. He also wrote private scripts for this patient. 5 August 2010 to 20 February 2014
12. Patient K The practitioner wrote 15 prescriptions for Pethidine (S 8) for Patient K without proper assessment, for an improper purpose and failed to keep appropriate medical records. He also wrote private scripts for this patient. 22 October 2010 to 10 November 2014
13. Patient L The practitioner wrote 19 prescriptions for Flunitrazepam (S 8) for this patient without proper assessment. The practitioner also wrote private scripts for this patient. 18 October 2010

Issues

1. Given the practitioner's concessions about his conduct, and as we will later explain our view that his concessions were appropriate, our principle focus was directed to three issues: 1. Could we be confident that, going forward, the personality traits asserted by the practitioner, and observed by his proposed mentor/supervisor, Dr Simon Holliday (Dr Holliday), would not lead to further inappropriate professional behaviour putting patients at risk? 2. Is the practitioner's expressed insight and remorse genuine, particularly given his responses to questions about why he wrote private prescriptions for drug seeking patients? 3. What orders are necessary, given the serious inappropriate and improper prescribing and record keeping failures, to ensure the protection of the public, act as a deterrent to like behaviour and uphold the reputation of the profession?

Relevant Law

1. The HCCC brings the Complaint relying on s 139B(1)(a) and/or (l) of the National Law. Those provisions are as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
2. Complaint Two is brought under s 138(1)(b) of the National Law. Section 138(1)(b) provides: (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
3. Complaint 3 alleges the practitioner is guilty of professional misconduct under s 139E. That section relevantly is framed as follows: 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.
4. The purpose of orders made at the conclusion of disciplinary proceedings is to protect the public (see Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40). As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 "[t]he term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation". His Honour further notes: "[t]here 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".
5. The importance of protection of the public is enshrined in the objects provisions of the National Law (see s 3 and s 3A). Section 3A, a New South Wales provision, is in the following terms: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
6. It is not in dispute that the HCCC bears the onus of proof of the complaints. The standard of proof is to the level of satisfaction described in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66).

The expert retained by the HCCC

1. Dr Graeme Thomson (Dr Thomson) was retained by the HCCC to provide expert evidence in this matter. He provided a report dated 17 August 2016 and a supplementary report dated 8 November 2016.
2. Dr Thomson graduated MB BS (Hons) from the University of NSW in 1977. He obtained his Dip (Obs) RACOG in 1981 and became a Fellow of the Royal Australian College of General Practitioners in 1994. He has other post graduate qualifications in forensic science. Dr Thomson has held a number of teaching positions including for the RACGP training program. He was not required for cross-examination. We accept that he is appropriately qualified to give expert evidence in this matter.
3. It is unnecessary that we extensively summarise Dr Thomson's very comprehensive report and supplementary report. Rather we propose to highlight aspects of his reports which demonstrate the very inappropriate nature of the practitioner's prescribing and record keeping failures.

Patient A

1. When considering the practitioner's prescribing for Patient A, Dr Thomson opined, based on the medical records, that at no time did the practitioner make an adequate assessment of the patient and that his repeated failure to do so fell significantly below the expected standard. His criticisms of the practitioner included the practitioner's failure to make proper enquiries about any illicit drug use by the patient or his purported loss of scripts.
2. Dr Thomson opined that the practitioner's prescribing for this patient was in excess of dosage instructions "and significantly greater than the quantities likely to be required for an optimum risk/benefit balance". He also opined that the practitioner had not sought appropriate referrals for this patient who had suffered a work-related injury, and that he had failed to obtain the requisite authority to prescribe a S 8 drug.

Patient B

1. Dr Thomson's report chronicles that the practitioner wrote many private scripts for Patient B and ignored a warning in the notes from another practitioner about this patient. The practitioner also disregarded information provided by a specialist that the patient had a probable fracture from a fall in July 2013. In November 2013 the patient fractured her pelvis. Although this patient had chronic pain, Dr Thomson opines that "[Patient B] was prescribed 2 to 4 times the maximum dose of opiates that are recommended for chronic pain management by expert guidelines". He was also critical of the prescribing of benzodiazepines in combination with opioids. He noted that the practitioner had failed to recognise or document drug seeking behaviour.

Patients C and D

1. Dr Thomson was also critical of the practitioner's treatment of Patient C and his prescribing of an S 8 drug without authority from the NSW Pharmaceutical Services Unit. He was also critical of the practitioner's notes finding inadequate note taking, and that the notes would not enable another practitioner to take over the patient's care.
2. Similar criticisms are made by Dr Thomson about the practitioner's inappropriate prescribing for Patient D.

Patient E

1. Patient E was a drug seeking patient. His previous notes revealed that he sold drugs and that he had involvement, both past and currently, with drug and alcohol management programs. He had just been released from jail when he saw the practitioner. Dr Thomson opined that the prescribing for this patient fell significantly below the standard reasonably expected of a practitioner of his training and expertise. He is critical of the practitioner for prescribing two benzodiazepines simultaneously. Dr Thomson notes that this patient was on a methadone program and this fact was known to the practitioner. He found the practitioner's prescribing was likely to cause serious harm to him or other people. But Dr Thomson supports as appropriate the practitioner's refusal to prescribe requested drugs for this patient on 9, 16, and 19 December 2014. In a similar vein to his criticism of record keeping for other patients, Dr Thomson is critical of the practitioner's records for this patient.

Patient F

1. The practitioner, who had access to notes made by another practitioner in the practice, that the patient exhibited characteristics of drug seeking behaviour, inappropriately prescribed Fentanyl including writing a second prescription only one day after he had written a two-week supply of the drug.
2. Unsurprisingly, Dr Thomson finds the practitioner's behaviour significantly below the relevant standard.

Patient G

1. As with Patient F, Dr Thomson was very critical of the practitioner's prescribing for this patient. The patient was from Sydney and had only presented at the practice approximately a year earlier when her request for Fentanyl was declined. The practitioner issued a script for Fentanyl one day after the patient obtained scripts from another general practitioner in the practice. The patient's history recorded a history of "lost scripts". Dr Thomson notes that the practitioner failed to or ignored these drug seeking traits.

Patient H

1. The practitioner's notes about the reason for prescribing Fentanyl for this patient were extremely scant. Tellingly, the patient's medical records noted she was a "known doctor shopper". Thereafter the practitioner's prescribing for this patient varied. On one occasion the practitioner in September declined to provide a script for this patient but eight days later he wrote a script for Fentanyl some seven days before the Patient's medication would "run out". Again, Dr Thomson finds the practitioner's behaviour to be significantly below the standard expected of a practitioner of this practitioner's level of training and experience and invited his strong criticism.

Patient I

1. The practitioner's prescribing of oxycodone and injectable morphine for this patient was significantly in excess of the appropriate dose. It attracted strong criticism from Dr Thomson. He further found that the practitioner's referral of the patient for opiate dependency was appropriate but not timely.

Patient J

1. This patient was a long-term patient of the practitioner. Dr Thomson's report notes that the practitioner's very brief notes do not explain why the practitioner prescribed Oxycodone, morphine and pethidine for this patient. Dr Thomson found the practitioner's conduct attracted his strong criticism.

Patient K

1. Dr Thomson was very critical of the practitioner's prescribing for this patient who lived in Queensland and who received 15 private scripts for pethidine without proper assessment and for no stated purpose. The practitioner's conduct attracted Dr Thomson's strong criticism.

Patient L

1. Finally, Dr Thomson opines that the practitioner's prescribing for this patient was significantly below standard the patient having been prescribed flunitrazepam on 19 occasions for no recorded reason. He notes the drug was prescribed without the necessary authority.

Discussion and conclusions - complaints

1. We commence our discussion by reference to the many authorities which stress the trust and authority reposed by law in a medical practitioner to prescribe drugs, particularly drugs of addiction, and the concomitant responsibilities which accompany such prescribing rights.

Authorities on inappropriate prescribing

1. We had the benefit of extensive written submissions prepared by Mr Britt. We accept as cogent and relevant the authorities referred to in the submissions at [80] to [84]. It is sufficient to outline the general principle running through the cases by reference to what was said by Hope JA in Spicer v NSW Medical Council (unreported CA No 3 of 1981). His Honour, with whom Reynolds and Hutley JJA agreed, said: In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. 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.

Discussion

1. There can be no doubt that the practitioner's conduct in his inappropriate and dangerous prescribing fell significantly below the standard expected of a practitioner of his level of training and experience. He is an Australian trained doctor and although English is his second language he has lived in and been educated in Australia since his primary school days.
2. It is clear that the practitioner did not read other practitioner's notes alerting him to drug seeking behaviours or contra-indications to prescribing or if he did so, he ignored the warnings about drug seeking patients. He prescribed on many occasions without the requisite authority when he either knew, or should have known, such authority was required.
3. The practitioner wrote private scripts for drug seeking patients in the belief that his prescribing would not be detected by Medicare and the Pharmaceutical Benefits branch. As we will later discuss, it was only after some extensive cross-examination on this topic that he fully acknowledged his reason for writing private scripts.
4. We have no hesitation in accepting and adopting each and every criticism made by Dr Thomson in his very comprehensive report and supplementary report. In reaching this finding we also accept Dr Thomson's evidence in support of actions of the practitioner refusing to prescribe for Patient E as appropriate conduct. We are independently satisfied that the practitioner's conduct was unsatisfactory conduct as defined in s 139(1)(a) and (l) of the National Law and that his very poor medical records breached the regulation and constituted unsatisfactory professional conduct for the purposes of s 139(1)(b) of that Law.
5. We have no hesitation in finding that the two complaints, and all the particulars of those complaints which have been established to the Briginshaw standard, considered together, constitute conduct of such a serious nature as to justify the suspension or cancellation of the practitioner's registration.

Protective orders

1. In considering appropriate protective orders we have taken into account the practitioner's statement, and his oral evidence. We have also paid careful regard to the opinions expressed by Dr Holliday, who was required for cross-examination and gave extensive oral evidence before us by telephone.
2. We have also taken into account the extensive actions undertaken by the practitioner since 2015 to better educate himself in respect of appropriate prescribing and the very complimentary references, which were not subject to challenge by the HCCC, from other professionals and community members. We discuss such evidence below.

Authorities on protective orders

1. As noted earlier in these reasons, the purpose of protective orders is multi-faceted. The relevant principles are succinctly explained by Meagher JA in HCCC v Do [2014] NSWCA 307.
2. In HCCC v Do his Honour said: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted."
3. In Chen at [18]-[21] Basten JA explained: The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration. The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, overservicing and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. 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… Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. [foot-notes omitted].

Discussion and conclusions protective orders

1. In considering appropriate protective orders we turn to the three issues we identified at the commencement of these reasons.

Could we be confident that, going forward, the personality traits asserted by the practitioner, and observed by his proposed mentor/supervisor, Dr Simon Holliday (Dr Holliday), would not lead to further inappropriate professional behaviour putting patients at risk?

1. The practitioner concedes the inappropriateness of his conduct and has not disputed any particular asserted against him by the HCCC. He acknowledges that he has read and accepted the criticisms of his conduct made by Dr Thomson. Although he does not seek to explain his conduct by reason of the breakdown of his marriage, he asserts this circumstance did impact on his actions. The practitioner explained in his oral evidence that, by reason of his cultural background, he wished to be accepted and liked by his patients and this aspect of his character had caused him to be compliant with, or to accede too readily to, patient requests.
2. Dr Holliday explained that he had not found the practitioner a suitable candidate to become a methadone prescriber because he did not have the type of manner necessary to deal with patients who were drug addicted. However, in his oral evidence, Dr Holliday opined that the practitioner had taken significant steps to educate himself following the instigation of the proceedings against him and that he was now one of the better educated general practitioners in the area. He also gave hearsay evidence of reports by patients of excellent and compassionate care received from the practitioner.
3. Dr Holliday was not as critical of the practitioner's prescribing practices as was Dr Thomson. Dr Holliday explained in his oral evidence that the practitioner and some of his colleagues had a reputation for prescribing opiates at a higher rate than other doctors in the area. He also described the need for general practitioners in the Taree area. He said it is a lower socio-economic area where general practitioner registrars, who comprise approximately 25 to 30 per cent of the workforce, only stay for approximately six months and where the number of Australian trained general practitioners is declining as those practitioners age and retire and are not replaced.
4. The practitioner has undertaken various courses to address the shortcomings of his behaviour identified in the complaint. Between July and December 2015, he completed the "Issues in General Practice Prescribing" course at Monash University.
5. Between 2016 and 2017, the practitioner commenced the "Master of Medicine: pain management" course at Sydney University but was unsuccessful in completing that course.
6. In 2017, the practitioner completed the "Pain Management Multidisciplinary Disciplinary" course and the "Putting Cognitive Behavioural Therapy into Practice" course at Sydney University.
7. At present, the practitioner is enrolled in the "Graduate Diploma in Chronic Pain management" at Flinders University and the "Graduate Diploma in Pain Management" at Sydney University. The practitioner is also completing his fellowship in Advanced Rural General Practice. The practitioner has applied to complete a Certificate in Emergency Medicine through the Australasian College of Emergency Medicine and Port Macquarie Hospital Emergency Department. In his oral evidence the practitioner explained that if he is successful in obtaining a position at the hospital he would further reduce his practice hours from his present reduced hours.
8. We are satisfied that the practitioner has made a very significant effort to educate himself about prescribing drugs of addiction and that he is, as Dr Holliday opined, one of the better educated doctors in the area about such prescribing.
9. We accept that he has, on the advice of his professional indemnity insurer, downloaded and adapted protocols to be applied in Medisense. We find the practitioner has taken significant steps to update his knowledge in the area of prescribing and record keeping. Our residual concern was his ability to apply his learnings to his practice. It was only after questioning from Mr Britt about the application of practice policies that the practitioner reflected overnight and provided us with a letter addressed to his contractor advising adherence to the practice policies was mandatory and a failure to comply could lead to termination of the contract. It appeared to us that, until directed to this issue, the practitioner appeared to accept he had no authority, or we would say responsibility, in the area of the engagement of contractors to impose practice policies.
10. Overall, we were satisfied that, if for some period, the restriction the practitioner's prescribing rights in respect of S 8 and S 4D drugs remained in place any risk to the public would be obviated. The practitioner's evidence disclosed he has been able to adequately and properly manage his nursing home patients with the co-operation of a colleague who prescribes for these patients when appropriate to do so. During such period if the practitioner reinforces his academic learning with the assistance of a supervisor such as Dr Holliday, a very experienced drug and alcohol practitioner, on a review restoration of those rights may be considered appropriate by the Council.

Is the practitioner's expressed insight and remorse genuine particularly given his responses to questions about why he wrote private prescriptions for drug seeking patients?

1. As is clear from our summary of the practitioner's prescribing, he engaged on many occasions in writing "private scripts". He said he did this to deter patients from having the scripts filled. The practitioner was then extensively cross-examined about this practice. At first, he said that his thinking at the time was flawed and he did not know why he did it. He then conceded he was "being less than honest with the PBS" because his thinking was flawed at the time. Eventually he conceded, when questioned about private scripts written for Patient B, that he was being less than honest with the PBS and Medicare and he was concerned his excessive prescribing would be picked up and that he would get into trouble.
2. In contrast to his evidence on this topic, which Mr Magee candidly and appropriately noted in his oral submissions was unsatisfactory, the practitioner did acknowledge that he accepted patients on face value because he wanted to be liked, that his prescriptions for Patient A were many multiples of the maximum dose, that he had not read clinical notes including notes that disclosed that Patient E sold drugs and had just come out of jail. He readily conceded his conduct fell short of appropriate standards and that he had brought the profession into disrepute.
3. We had some disquiet in accepting aspects of the practitioner's evidence particularly because his hesitation in acknowledging his reasoning for writing private prescriptions. We also had difficulty in accepting that he was not driven by any financial gain in his own prescribing practices or that of the contractors. However, we find he has gained a level of insight into his inappropriate conduct, that he is remorseful. He has taken steps to educate himself, reduced his practice hours, placed signs in the practice that he does not prescribe drugs of addiction, drafted protocols and has consulted with Dr Holliday for advice and accepts ongoing mentoring or supervision would be appropriate.

What orders are necessary, given the serious inappropriate and improper prescribing and record keeping failures, to ensure the protection of the public, act as a deterrent to like behaviour and uphold the reputation of the profession?

1. As explained at the commencement of these reasons, at the conclusion of the hearing the HCCC submitted that we should make orders cancelling the practitioner's registration and providing a period of 18 months before he could apply for a re-instatement order. We accept that the very serious nature of the practitioner's conduct constitutes professional misconduct and that it is open to us to make an order cancelling his registration.
2. We have already found that if the practitioner's prescribing rights continue to be restricted, and that if he is subject to a supervision provision, that any risk to the health and safety of public will be minimised. We are also satisfied that compliance with proper record keeping can be monitored by providing for the random audit of practitioner's medical records. We are satisfied this is an appropriate order notwithstanding the practitioner provided us with selected medical records on the last day of the hearing to demonstrate the change in his medical record keeping. While these records for a single day show a marked change from the records for the patients the subject of this complaint, in light of the appalling records disclosed in the HCCC's documents we find an audit is an appropriate safeguard.
3. We turn then to the question of deterrence and the upholding of the standards of the profession. We accept the authorities referred to in Mr Britt's helpful written submissions at [99] to [101] are clear and unambiguous. We are conscious of the statement of principle referred to by the Court of Appeal in HCCC v Litchfield (1997) 41 NSWLR 630 where their Honours note that "the gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal".
4. In his written submissions Mr Britt carefully pointed out the similar factual circumstances in this case to those in HCCC v Chen [2016] NSWCATOD 144 at [132]-[138]. Mr Britt also referred us to the decision in HCCC v Echano [2018] NSWCATOD 30 noting that the Tribunal in that case rejected the practitioner's explanation of personality weakness to minimise the culpability of the practitioner's conduct. We note that Dr Echano practised in the same practice as the practitioner.
5. However, as Mr Britt also points out, the practitioner has now practised for a further three years since the s 150 proceedings with no complaints against him. It is submitted that notwithstanding this fact that we could not be satisfied that he would not offend again and as such remains unfit to practice. Accordingly, it is submitted that his registration should be cancelled.
6. We do not accept the latter submission. Although we have expressed some doubts about aspects of the practitioner's evidence before us which were unsatisfactory, those matters must be balanced and weighed in the exercise of our discretion against other factors.
7. As we have already explained, we are satisfied that the practitioner is remorseful and demonstrates a level of insight into his inappropriate behaviour. He has significantly changed the way in which he practises. He has the support of Dr Holliday who finds him now to be a well-respected and educated professional. He provides care for patients in five nursing homes in an area where it has been difficult to attract general practitioners on a long-term basis. We also accept that he has taken very active steps to educate himself about appropriate prescribing and should be able to put into practice what he has learnt with the assistance of a supervisor at level three supervision (in accordance with the Council's supervision policy). He did not seek to attribute his conduct to his marriage breakdown, although it was submitted on his behalf this had clouded his vision. We have also taken that factor into account.
8. However, we do not accept that a reprimand with or without the imposition of conditions is an appropriate outcome. The practitioner's prescribing conduct was highly irresponsible, and he sought to conceal his inappropriate prescribing from Medicare and the PBS to protect himself.
9. In accordance with the statement of principle in HCCC v Litchfield set out above we are satisfied that, to act as a deterrent and to uphold the standards of the profession, the practitioner's registration should be suspended for a period of three months and that on the expiration of the suspension his prescribing rights in respect of S 4D and S 8 drugs should be restricted, that he should be subject of level 3 supervision, and his medical records should be audited. We have provided for the suspension to commence two weeks after publication of our decision so that appropriate arrangements may be put in place for the practitioner's patients ongoing care.

Costs

1. The HCCC sought that the practitioner pay its costs of and incidental to the proceedings. The power to award costs under the National Law is found in cl 13 of Schedule 5D as follows: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
2. The principles to be applied in respect of costs applications in this jurisdiction are established by appellate authority (see HCCC v Philipiah [2013] NSWCA 342).
3. We find there are no circumstances which warrant departure from the usual position that the practitioner should pay the costs of the HCCC as agreed and failing agreement as assessed.
4. ORDERS
5. The registration of Dr Long Phan Nguyen (also known as Dr Lawrence Nguyen) (the practitioner) is suspended for a period of 3 months commencing on 13 June 2018.
6. On the expiration of the suspension the following conditions are imposed on the practitioner's registration: (1) the practitioner shall: (i) not possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW); (ii) not possess, supply, administer or prescribe any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW); (iii) obtain approval from the Medical Council of NSW (the Council) prior to changing the nature or place of his practice; (iv) obtain approval from the Council prior to employing or taking on any new independent contractors, general practitioners or employees; (v) see no more than 4 patients per hour for a maximum of 6 hours on any given day and not see patients on weekends; (vi) nominate an experienced registered general practitioner to act as his professional supervisor in accordance with the Medical Council of NSW's supervision level 3 policy in force from time to time; (vii) review and discuss with his supervisor matters relating to his practice including but not limited to: Managing a group practice; Dealing with drug dependent patients; Ethical issues as they arise in practice; Workload; Clinical performance; Personal and/or medical practice issues as they arise; Compliance with regulations governing medical records; and Medical record reviews. (viii) authorise the supervisor to report, in an approved format, to the Council every 3 months about the supervision, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing; (ix) to submit to audits of his medical practice by a random selection of his medical records by a person or persons nominated by the Council; (a) within 3 months of the of the practitioner's resuming practice following expiration of his suspension; (b) within a further 6 months of the initial audit. (c) It is noted that the auditor is to assess the practitioner's compliance with good medical record keeping standards and all regulatory requirements; and (d) authorise the auditor(s) to provide the Council with a report on their findings; (x) meet all costs associated with compliance with all conditions on his registration.
7. The practitioner may seek a review of the conditions imposed on his registration and the appropriate review body shall be the Council or if the practitioner resides in a State other than NSW then s 125 to s 127 of the Health Practitioner Regulation National Law shall apply.
8. The practitioner shall pay the costs of Health Care Complaints Commission of and incidental to these proceedings as agreed or failing agreement 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: 30 May 2018