Health Care Complaints Commission v Ochoa [2022] NSWCATOD 32 | Case summary

NCAT Occupational|2021-12-03

Background to Respondent

The respondent graduated with the equivalent of the degrees of Bachelor of Medicine and Bachelor of Surgery in Venezuela in 2005 following a six-year period of study. He practised as a general practitioner and in orthopaedic surgery between 2005 and 2008 in Venezuela before coming to Australia in approximately 2008. The respondent then was engaged undertaking various medical assistant positions between 2009 to 2015.
The Australian Health Practitioner Regulation Agency Evidentiary Certificate records that the respondent was first registered on 4 December 2014 (MED 0001927187). Since that date he was granted provisional registration to 16 March 2016; then general registration from that date to 6 September 2018 when he was suspended until 21 December 2018. He was granted general registration from 21 December 2018, subject to conditions.
The evidentiary certificate provided by the Medical Council of New South Wales pursuant to section 244A of the National Law states that the respondent did not have registration in New South Wales prior to 30 June 2010.
Before the Medical Council at the section 150 hearing on 6 September 2018, the respondent stated that he considered that he was: "… very naïve and very easily manipulated on to following in the pattern of prescription that was being done. I deeply regret not having been more aware. I deeply regret not having my eyes open wider and not having my thoughts in the hidden schedule or the hidden agenda that may have been or that was indeed taken place. There is no excuse. There is no way to explain such innocence however I can recognise that and I can use it as a learning cornerstone in avoiding any similar situations and circumstances."

Disciplinary sanction

The paramount consideration for the Tribunal is the health and safety of the public. Section 3A of the National Law states: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
Such principle has been comprehensively referred to in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] where Meagher JA (with whom Basten and Emmett JJA agreed) 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 Health Care Complaints Commission v Dr Della Bruna (2014) NSWCATOD 31, Wright J at [88] summarised the protective principles as follows: "(1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2)Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83]."
Where the issue which has been brought to the attention of the applicant raises inappropriate prescribing, special observations have been made. In Health Care Complaints Commission v Chen (2016) NSWCATOD 144, the Tribunal said in relation to the issue of overprescribing and inappropriate prescribing at [137] relevantly: "Medical practitioners are in a unique position in enabling members of the public to have access to drugs of addiction and the community is entitled to rely on the integrity and professional expertise of medical practitioners to avoid creating drug addicts and to avoid feeding the habits of drug addicts. This is not necessarily an easy task, but there are well-recognised protocols for the administration of drugs of addiction and well-recognised resources to assist medical practitioners in treating their patients. The respondent clearly failed in all of these areas and did not display any initiative or insight in meeting the challenge which she says she perceived she had when dealing with this cohort of patients. This is a most serious matter and calls into question the ability of the respondent generally to practice medicine safely."
The New South Wales Court of Appeal has also made pronouncements to similar effect in Spicer v New South Wales Medical Board & Ors (unreported) Thursday 19/02/1981) where Hope JA, with whom Reynolds and Hutley JJ agreed observed (at 5, 6): "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 which 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."41In view of the admissions that were made by the respondent to all particulars, the parties have reached agreement upon what they regard as the appropriate disability sanction to be applied for the future practice of the respondent. In formulating the conditions sought by the applicant, the applicant is taken into consideration its conclusion that the inappropriate prescribing of drugs and poor record-keeping has resulted from inexperience rather than from deliberate and wilful conduct.
The Tribunal has had regard to the written submissions of each party concerning conditions sought by the applicant, including a condition that category B supervision should be imposed. The respondent urges the Tribunal to impose instead category C supervision. However, the Tribunal is satisfied that category B supervision is necessary for the future protection of the public. In reaching this conclusion, it has taken into consideration the inexperience of the respondent and the gross overprescribing by the respondent to his patients. The Tribunal considers that the sanction proposed by the applicant and the proposed conditions upon the future practice of the respondent are appropriate and will accordingly formulate its orders.

Costs

The applicant seeks an order that the respondent pay its costs as agreed or assessed. The New South Wales Court of Appeal in Health Care Complaints Commission v Philipiah (2013) NSWCA 342 at [42] - [46] has established the principle that costs in such circumstances should usually be paid by a respondent. The Tribunal considers that there is no reason why such an order should not be made pursuant to Schedule 5D, cl 13 of the National Law that the respondent pay such costs, and the Tribunal will make an order accordingly.
The Tribunal noted that many thousands of pages were prepared by the applicant, most of which were not referred to. In these circumstances, by agreement, the parties have agreed that the respondent shall be only liable to pay the amount of $2,000 in respect of photocopying as part of the costs order to be made.

Orders 1. The respondent's conduct in relation to the prescribing drugs with respect to Patient A to Patient G inclusive and poor record-keeping constitutes unsatisfactory professional conduct as particularised; and his conduct in relation to the prescribing of drugs to patients A to patient G inclusive constitutes professional misconduct. 2. Pursuant to section 149A(1)(a) of the Health Practitioner Regulation National Law the respondent is reprimanded. 3. The following conditions are imposed upon the respondent's practice: 1. The respondent is reprimanded 2. The conditions set out in paragraphs (i) to (ix) below are imposed on the practitioner's registration 1. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 registered medical practitioners (excluding the respondent): 1. where the patients and patient records are shared between the medical practitioners; and 2. where there is always one other registered medical practitioner on site. 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 practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: 1. Prescribing. 2. Patient management and assessment. 3. Dealing with difficult and demanding patients. 4. Medical Record keeping. 1. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the Tribunal's decision. 2. 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. 3. To undertake an ethics course as approved by the Medical Council of NSW. 4. To complete within 6 months of the date of the Tribunal's orders the 'National Prescribing Curriculum (NPC)' organised by NPS MedicineWise. 1. Within 1 month the respondent must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. 2. Within 1 month of completing the abovementioned course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. 3. To bear responsibility for any costs incurred in meeting this condition. In the event that the 'National Prescribing Curriculum (NPC)' organised by NPS MedicineWise is unavailable, the respondent must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months from the date of these orders. 1. The respondent is to participate in a recognised pathway to achieving Fellowship of the Royal Australian College of General Practitioners (RACGP). 1. The Medical Council of NSW is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW) 1. The respondent is to pay the costs of and incidental to these proceedings pursuant to Schedule 5D, cl 13 of the Health Practitioner Regulation National Law, limiting the photocopying costs to the sum of $2,000. 2. Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, an order is made prohibiting the disclosure to any person or entity the names of Patient A to Patient G inclusive.

Particulars of Complaint One Particulars 1, 2, 3, 4, 5, 7, 8, 9, 11, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30 and 31 are relied upon as constituting unsatisfactory professional conduct for the purposes of section 139B(1)(a) individually or in any combination with the other particulars. Particulars 6, 10, 12, 13, 14, 16 and 29 are relied upon as constituting unsatisfactory professional conduct for the purposes of section 139B(1)(a) only in combination with other particulars. All of the particulars are relied upon in the alternative, individually or in combination with other particulars, as other improper conduct for the purposes of section 139B(1)(l). Patient A

The practitioner's prescribing for Patient A of the Schedule 8 drug oxycodone between 14 October 2015 and 15 March 2018 as set out in Annexure A: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of oxycodone prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner.
The practitioner's prescribing for Patient A of the Schedule 4D drug diazepam between 14 October 2015 and 15 March 2018 as set out in Annexure A, when viewed together with the practitioner's prescribing for Patient A of the Schedule 8 drug oxycodone as set out in particular 1: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR (b) otherwise was not clinically indicated or appropriate in the patient's circumstances, having regard to the quantities of diazepam prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner.
Between 25 April 2016 and 15 March 2018, the practitioner prescribed for Patient A the Schedule 8 drug oxycodone as set out in Annexure A in circumstances in which: (a) oxycodone was a type C drug of addiction within the meaning of section 28(6) of the PTGA; (b) by at least 13 April 2016, the practitioner held an opinion that Patient A was a drug dependent person; and (c) the practitioner did not obtain the proper authority from the Secretary of NSW Health, contrary to section 28(3) of the PTGA. Patient B
The practitioner's prescribing for Patient B of the Schedule 8 drug oxycodone between 13 February 2017 and 15 July 2018 as set out in Annexure B: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of oxycodone prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner.
The practitioner's prescribing for Patient B of the Schedule 4 drug quetiapine between 21 July 2016 and 2 September 2018 as set out in Annexure B: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of quetiapine prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner.
The practitioner's prescribing for Patient B of the Schedule 8 drug alprazolam between 13 February 2017 and 15 July 2018 as set out in Annexure B, when viewed together with the practitioner's prescribing for Patient B of the Schedule 8 drug oxycodone as set out in particular 4: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the dosages of alprazolam prescribed and the frequency and duration of prescribing by the practitioner.
Between 8 June 2017 and 15 July 2018, the practitioner prescribed for Patient B the Schedule 8 drug oxycodone as set out in Annexure B in circumstances in which: (a) oxycodone was a type C drug of addiction within the meaning of section 28(6) of the PTGA; (b) by at least 8 June 2017, the practitioner held an opinion that Patient B was a drug dependent person; and (c) the practitioner did not obtain the proper authority from the Secretary of NSW Health, contrary to section 28(3) of the PTGA.
Between 16 January 2016 and 16 July 2018, the practitioner prescribed for Patient B the Schedule 8 drug alprazolam as set out in Annexure B in circumstances in which: (a) alprazolam was a type B drug of addiction within the meaning of section 28(6) of the PTGA and clause 123 of the PTGR; (b) the alprazolam was for continuous therapeutic use by Patient B for a period exceeding two months; and (c) the practitioner did not obtain the proper authority from the Secretary of NSW Health, contrary to section 28(2) of the PTGA. Patient C
The practitioner's prescribing for Patient C of the Schedule 8 drug oxycodone between 24 October 2015 and 26 August 2018 as set out in Annexure C: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of oxycodone prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner.
The practitioner's prescribing for Patient C of the Schedule 4D drug diazepam between 24 August 2017 and 12 August 2018 as set out in Annexure C: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the frequency and duration of prescribing by the practitioner.
Between 10 March 2018 and 26 August 2018 the practitioner prescribed for Patient C the Schedule 8 drug oxycodone as set out in Annexure C in circumstances in which: (a) oxycodone was a type C drug of addiction within the meaning of section 28(6) of the PTGA; (b) by at least 9 March 2018, the practitioner held an opinion that Patient C was a drug dependent person; and (c) the practitioner did not obtain the proper authority from the Secretary of NSW Health, contrary to section 28(3) of the PTGA. Patient D
The practitioner's prescribing for Patient D of the Schedule 8 drug oxycodone between 10 February 2017 and 3 September 2018 as set out in Annexure D: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of oxycodone prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner.
The practitioner's prescribing for Patient D of the Schedule 8 drug fentanyl between 3 December 2016 and 26 August 2018 as set out in Annexure D: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of fentanyl prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner.
The practitioner's prescribing for Patient D of the Schedule 4D drug diazepam between 1 April 2017 and 2 September 2018 as set out in Annexure D: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the frequency and duration of prescribing by the practitioner.
The practitioner's prescribing for Patient D of the Schedule 4 drug methoxyflurane between 22 April 2017 and 5 September 2018 as set out in Annexure D: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the frequency and duration of prescribing by the practitioner.
Between 22 July 2017 and 12 August 2018, the practitioner intramuscularly administered to Patient D or supervised the administration to Patient D of the Schedule 8 drug morphine as set out in Annexure D, where the duration and frequency of the administration: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances.
Between 22 April 2017 and 5 September 2018, the practitioner prescribed for Patient D the Schedule 4 drug methoxyflurane as set out in Annexure D in circumstances in which: (a) another medical practitioner at the Practice had referred Patient D to the Pain Clinic at St Vincent's Hospital Sydney ("Pain Clinic"); (b) on 6 October 2016, a Pain and Rehabilitation Registrar at the Pain Clinic had written to the other practitioner to the effect that, among other things, Patient D's ongoing use of methoxyflurane was not warranted; (c) the practitioner was aware of that advice; and (d) the practitioner was not familiar with methoxyflurane. Patient E
The practitioner's prescribing for Patient E of the Schedule 8 drugs oxycodone and oxycodone combined with naloxone (Targin), the Schedule 4D drugs clonazepam, temazepam, diazepam, nitrazepam and oxazepam, and the Schedule 4 drug tramadol, between 19 February 2016 and 30 August 2018 as set out in Annexure E, when viewed together with the narcotics (opioids) and benzodiazepines being prescribed for Patient E by her pain specialist: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of those drugs prescribed by the practitioner.
The practitioner's prescribing for Patient E of the Schedule 8 drug oxycodone between 19 February 2016 and 30 August 2018 as set out in Annexure E, when viewed together with the narcotics (opioids) and benzodiazepines being prescribed for Patient E by her pain specialist: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the dosages of oxycodone prescribed and the frequency and duration of prescribing by the practitioner.
The practitioner's prescribing for Patient E of the Schedule 8 drug oxycodone combined with naloxone (Targin) between 19 February 2016 and 30 August 2018 as set out in Annexure E, when viewed together with the narcotics (opioids) and benzodiazepines being prescribed for Patient E by her pain specialist: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the dosages of Targin prescribed and the frequency and duration of prescribing by the practitioner.
The practitioner's prescribing for Patient E of the Schedule 4D drug diazepam between 29 October 2016 and 30 August 2018 as set out in Annexure E: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the frequency and duration of prescribing by the practitioner.
The practitioner's prescribing for Patient E of the Schedule 4 drug tramadol between 27 April 2016 and 30 August 2018 as set out in Annexure E, when viewed together with the narcotics (opioids) and benzodiazepines being prescribed for Patient E by her pain specialist: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the dosages of tramadol prescribed and the frequency and duration of prescribing by the practitioner. Patient F
The practitioner's prescribing for Patient F of the Schedule 8 drug oxycodone between 13 April 2016 and 13 August 2018 as set out in Annexure F: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of oxycodone prescribed, the dosages prescribed and the frequency and duration of prescribing by the practitioner.
The practitioner's prescribing for Patient F of the Schedule 4D drug diazepam between 27 April 2016 and 14 June 2018 as set out in Annexure F, when viewed together with the other drugs that the practitioner was prescribing for Patient F: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances, having regard to the quantities of diazepam prescribed and the duration of prescribing by the practitioner.
Between 19 August 2018 and 3 September 2018, the practitioner prescribed for Patient F the Schedule 8 drug fentanyl as set out in Annexure F in dosages that, having regard to the oral Morphine Equivalent Daily Dose (oMEDD) of fentanyl being prescribed in comparison with the oxycodone it was replacing: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically appropriate in the patient's circumstances.
Between 16 February 2017 and 13 August 2018, the practitioner prescribed for Patient F the Schedule 8 drug oxycodone as set out in Annexure F in circumstances in which: (a) oxycodone was a type C drug of addiction within the meaning of section 28(6) of the PTGA; (b) by at least 16 February 2017, the practitioner held an opinion that Patient F was a drug dependent person; and (c) the practitioner did not obtain the proper authority from the Secretary of NSW Health, contrary to section 28(3) of the PTGA.
Between 13 April 2016 and 13 August 2018, the practitioner notated prescriptions of restricted drugs issued to Patient F with "Reg 24" (referring to regulation 24 of the National Health (Pharmaceutical Benefits) Regulations 1960 (Cth) ("PBS Regulations")) in circumstances in which: (a) Patient F did not meet any of the circumstances specified in the PBS Regulations as permitting the supply of multiple repeats on one occasion; and (b) it was not otherwise clinically indicated or appropriate to supply multiple repeats at one time to Patient F. Patient G
The practitioner's prescribing for Patient G of the Schedule 4D drug diazepam between 17 August 2017 and 2 September 2018 as set out in Annexure G: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically indicated or appropriate in the patient's circumstances, having regard to the quantities of diazepam prescribed and the duration of prescribing by the practitioner.
The practitioner's prescribing for Patient G of the Schedule 8 drug oxycodone between 21 January 2018 and 2 September 2018 as set out in Annexure G: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; (b) otherwise was not clinically indicated or appropriate in the patient's circumstances, having regard to the duration of prescribing by the practitioner.
On 2 February 2018, the practitioner prescribed for Patient G the Schedule 8 drug methadone as set out in Annexure G, which: (a) did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; (b) otherwise was not clinically indicated or appropriate in the patient's circumstances.
Between 21 January 2018 and 2 September 2018, the practitioner prescribed for Patient G the Schedule 8 drug oxycodone as set out in Annexure G in circumstances in which: (a) oxycodone was a type C drug of addiction within the meaning of section 28(6) of the PTGA; (b) by at least 14 October 2017, the practitioner held an opinion that Patient G was a drug dependent person; and (c) the practitioner did not obtain the proper authority from the Secretary of NSW Health, contrary to section 28(3) of the PTGA.

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: 08 March 2022

Veterinary Surgeons Act 1923(NSW)

Health Practitioner Regulation (New South Wales) Regulation 2016(NSW)

e respondent must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months from the date of these orders. (ix) The respondent is to participate in a recognised pathway to achieving Fellowship of the Royal Australian College of General Practitioners (RACGP). (c) The Medical Council of NSW is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW) (4) The respondent is to pay the costs of and incidental to these proceedings pursuant to Schedule 5D, cl 13 of the Health Practitioner Regulation National Law, limiting the photocopying costs to the sum of $2,000. (5) Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, an order is made prohibiting the disclosure to any person or entity the names of Patients A to Patients G inclusive. Catchwords: HEALTH - Professional registration and discipline - medical practitioner prescribing of Schedule 8 and Schedule 4 drugs inappropriately and in vast quantities - no medical reason to justify quantities of prescribing - inadequate record-keeping - inexperience of practitioner - necessity for continued supervision under category B Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Veterinary Surgeons Act 1923 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Health Care Complaints Commission v Chen (2016) NSWCATOD 144 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Della Bruna (2014) NSWCATOD 31 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Health Care Complaints Commission v Philipiah (2013) NSWCA 342 Kalil v Bray (1977) 1 NSWLR 256 Spicer v New South Wales Medical Board &Ors (unreported) Thursday 19/02/1981) Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Carlos Enrique Tahuil Ochoa (Respondent) Representation: Counsel: D Walker (Applicant) R Mathur (Respondent)

Legal Principles

Unsatisfactory professional conduct is defined in s 139B of the National Law to include, relevant for these proceedings, conduct that demonstrates the knowledge, skill or judgement 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 (s 139B(1)(a)); or contravention by a practitioner of a provision of the National Law or regulations made under such law or under the NSW regulation, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention (s 139B(1)(b)); or any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession (s 139B(1)(l)).
Professional misconduct is defined in s 139E of the National Law as including: (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.
The Tribunal must consider whether the respondent's conduct constitutes unsatisfactory professional conduct, and unsatisfactory professional conduct of such a degree as to constitute professional misconduct. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186, Basten JA said at [20]: "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 judgement made by the Tribunal."
The conduct as particularised in each of the Complaints in relation to the treatment of Patient A to Patient G inclusive is found by the Tribunal to be conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and as such constitutes unsatisfactory professional conduct within the meaning of s 139B of the National Law. Further, the conduct referred to in Complaint One in relation to Patient A to Patient G inclusive is such as to constitute professional misconduct under s 139E of the National Law.

Health Care Complaints Commission v Ochoa

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (6 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (12)

Cited By (1)