Health Care Complaints Commission v Rahman

NCAT Occupational|2018-02-14

REASONS FOR DECISION

By application for disciplinary findings and orders filed on 7 September 2017, the applicant (HCCC) seeks an order pursuant to s 149A of the Health Practitioner Regulation National Law (NSW) ("National Law") to caution, reprimand, impose conditions on registration; and pursuant to s 149B of the National Law to impose a fine; and/or s 149C, namely to suspend or cancel a registration or make a prohibition order against the respondent ("the practitioner").
The applicant also seeks an order pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure of the name of a patient, described as patient A (the patient) referred to hereunder.
The Complaint filed by the applicant alleges that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law, in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Secondly, the Complaint filed in these proceedings alleges that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration; or has engaged in more than one instance of unsatisfactory professional conduct which, when considered together, constitutes conduct of a sufficiently serious nature to justify the suspension or cancellation.
By his Reply to Complaint, the practitioner admits that he is guilty of unsatisfactory professional conduct pursuant to s 139B(a) of the National Law as alleged in Complaint 1.
Further, the practitioner admits that he is guilty of unsatisfactory professional conduct and admits that his conduct is of a sufficiently serious nature to justify suspension or cancellation of his registration, but denies he is guilty of professional misconduct. Set out hereunder are details of the Complaints together with the particulars relied upon by the HCCC. For convenience, the practitioner's response immediately follows each particular.

FACTS

The facts may be stated in summary as follows. The patient was an 84 year old woman with a history of hypertension, ischaemic heart disease, atrial fibrillation and osteoarthritis. In particular, her bilateral knee osteoarthritis caused her considerable pain and created immobility. She was unable to care for herself and was admitted to Forbes District Hospital. She was then transferred to Mater Aged Care on 10 February 2014.
On 14 November 2014 the patient was moved to Jemalong Retirement Village, Forbes, ("Jemalong") because of the need for constant care. On or about 13 February 2015, the patient, who had been in the care of Dr Utang Laksito, was transferred to the practitioner's care. In 2013 the patient had attended a general medical practice in Forbes at which the practitioner was engaged, and through this relationship, the practitioner had met the patient. However the last consultation between the practitioner and the patient was on 30 October 2013.
After the practitioner assumed the care of the patient at Jemalong, there was no consultation between the practitioner and the patient until 18 February 2015. However the practitioner, whilst visiting another patient at Jemalong on 16 February 2015 was asked by nursing staff to prescribe a painkiller for the patient. The practitioner prescribed Endone 5mg 4 x daily as required. The practitioner did not examine the patient nor did the practitioner examine her medical records to determine whether the patient had been on other medication.
On 18 February 2015 the practitioner was again asked by nursing staff to provide medication for the severe pain being experienced by the patient. The practitioner was informed by nursing staff that the Endone "was not working". In fact there is no record that the Endone, prescribed by the practitioner on 16 February 2015, had ever been administered to the patient.
On 18 February 2015, at approximately midday, the practitioner prescribed a 50mcg/hr Fentanyl patch (otherwise referred to as a Durogesic patch) to be applied to the patient. At the time of this prescription, the practitioner did not consult the medical records, either to determine whether the Endone had been administered or to determine the extent and nature of any other medications which the patient may have been taking.
Until 18 February 2015, the patient had been alert and talkative. She would ask her daughters to clean her dentures, brush her hair and assist her to sit up in bed and put pillows behind her. Just before Wednesday, the patient had asked Daughter A to make arrangements to have her eyebrows, hair and nails done. It was the practice of the patient to dress in normal clothes in the morning and be out of her sleeping attire by breakfast.
Enquiries revealed that the patient did not have breakfast that day. Accordingly the patient's daughters remained and attempted to make her eat but she appeared to be unable to eat or swallow. A staff member informed the daughters they would try to give the patient ice-cream.
Later on 20 February 2015 at about 5 pm Daughter A and her sister visited the patient. They were informed by staff that the patient was still not eating and that she was "just adjusting to the patch and that there was no need to call head doctor".
On the morning of Saturday, 21 February 2015 Daughter A and her sister again attended to see the patient. They informed the staff that they were most concerned about the patient's condition and asked whether their mother should be taken to hospital or a doctor called to see her. The patient did not respond to pinching of her earlobes. In response they were told: No, she's just tired. This happens to people when they get old. It's just the patch kicking in
The records show that at 07:20 hours on Sunday 22 February 2015 the patch was removed resulting from the daughters' concern. According to the practitioner staff offered to transfer the patient to hospital but the daughters preferred her to remain at Jemalong. Daughter B disputes such version and claims that she asked the practitioner at approximately lunchtime on 23 February whether the patient should be taken to hospital to have tests done. She alleges that the practitioner stated words the effect: "No, it would probably not be a good idea to pull her around. No, I don't see the point". In answer to the proposition put to him by Daughter B that the patch was too strong, the practitioner allegedly replied with words the effect: "No, I don't think so". The patient's temperature was then 39.9 degrees Celsius.
At 03:15 hours on 23 February 2015 (Monday) the patient's temperature was recorded at 38.2. She was given Panadol Osteo and passed a small amount of urine. By 09:00 hours the patient was unresponsive to pain and vocal stimuli.

Morphine

On the morning of Monday, 23 February 2015, the medical practitioner received a request from Jemalong to visit the patient. The practitioner visited at approximately 1pm and found that the patient was unconscious. He noticed that her pupils were approximately 2 mm in size. He tried raising her left and right arms and felt some difference in the resistance. The practitioner concluded that the patient had suffered a cerebrovascular accident (stroke). He prescribed morphine as required. The patient died later that day. The practitioner recorded on the death certificate that the immediate cause of death was a stroke.

Jemalong Nursing Records

The entries in the nursing records of Jemalong are incomplete. Records exist for only 17 out of 24 days. The records show that during February 2015 the patient was abusive, kicking at staff and spitting at them. The patient yelled constantly, throwing food and physically abusing the staff.
There are no entries of relevance between 5 February and 11 February. On the latter date it is noted that the patient had been constantly calling out, screaming and requiring constant attention. There is no note that the practitioner was contacted.
On 16 February three entries exist. The time on one entry is not recorded; a second entry at 12:30 hours states that a hot flannel placed on the patient's low back had given some relief. A third entry at 20:30 hours records: "Endone stock arrived with new charts (pharmacy) this p.m.". No comment exists concerning any discussion neither between the practitioner and the patient nor with hospital staff. A hand written signed medication sheet from the practitioner prescribing Endone for the patient, exists. The record entitled "BLDB PRN Signing Sheet" dated 16/2/2015, states: "Endone 5mg; to be taken as required four times per day". There is however no record of Endone being administered to the patient.
Entries for 17 February and 18 February record no matter of relevance except that the latter date has been recorded as being a "happy day".
The only entry for the 19 February records that the patient was commenced on Durogesic (Fentanyl) 50 mcg/hr. No record exists of her demeanour.
On 21 February (Saturday) an entry made at 14:00 hours recorded the patient was very sleepy. At 19:30 hours it was recorded that she remained sleepy but responded to painful stimuli. It is also recorded that the patient's daughters were concerned about her drowsiness and the following entry is recorded: "nursing staff state that they offered to remove the patch and to contact the doctor on Monday".
On 22 February 5 entries are made. The first is at 06:30 hours recording that the patient was drowsy throughout the preceding shift; had a temperature of 39.9°C; BP 130/70 and pulse 80. The second at 07:20 hours records that the patient was very drowsy with small sluggish pupils and that the Durogesic patch was removed. Temperature is not recorded for this entry.
At 13:00 hours it was recorded that the patient remained drowsy and was not eating nor drinking; that the pupils remain small and sluggish; that the patient's daughter did not wish her to be transferred to hospital.
At 21:00 hours it was stated that the patient ate some melted ice cream and staff were encouraging her to eat. At 21:30 hours, it was recorded that she appeared more alert in the afternoon shift.
The entries for 23 February record that at 03:15 hours the patient looked more unwell; temperature was 38.2 and blood pressure was 100/58. Urine output had decreased.
At 09:00 hours it was recorded that the patient was unresponsive to painful stimuli, and that the skin on her feet was mottled. The record states that a priest was notified at the family's request and that the practitioner was notified and stated that he would visit at 13:00 hours to order end of life medication
At 14:30 hours an entry is made that the family were in attendance throughout the day and that at 19:40 hours the patient had no respirations present. At 20:30 hours the practitioner was contacted to attend to a death certificate which was completed at 23:00 hours.

PARTICULARS OF COMPLAINT 1 1. On 16 February 2015 the practitioner prescribed Endone 5mg (1 tablet x 4 times daily) to Patient A which was not clinically indicated in circumstances where: (a) the practitioner had not consulted with Patient A; [admitted] (b) [particular removed] (c) [particular removed] (d) Patient A was already prescribed Panadol-Osteo for pain management. [Not admitted] 2. On 18 February 2015 the practitioner prescribed a fentanyl transdermal skin patch 50mcg/h to Patient A for night time agitation and chronic osteoarthritis pain which was not clinically indicated in circumstances where: (a) Patient A was narcotic-naïve; [admitted] (b) the practitioner failed to consider potential drug interactions between fentanyl and Patient A's anti-depressant Sertraline; [not admitted] (c) the starting dose was excessive; [admitted] (d) the practitioner failed to consider non-narcotic options for Patient A including: [denied] (i) glucosamine sulphate; (ii) tricyclic anti-depressants; (iii) pregabalin; (iv) physical remedies including massage and physiotherapy; (v) herbal remedies; (e) the practitioner failed to consider transdermal buprenorphine as an alternative and gentler narcotic option for Patient A; [admitted) (f) the practitioner failed to confirm whether Patient A had been administered the prescribed Endone by either: (i) speaking with nursing home staff; [denied] (ii) reviewing Patient A's medical records. [Admitted] 3. On 18 February 2015, following prescription of fentanyl 50mcg/h, the practitioner failed to provide nursing staff with instructions as to observations required in relation to Patient A including to: (a) undertake routine observations including blood pressure, pulse, respiratory rate and depth, alertness and orientation; [admitted that BP and pulse were not observed, but denies that respiratory rate and depth, alertness and orientation were not observed] (b) check for signs of overdose from the fentanyl 6-8 hourly; [not admitted] (c) report any changes in Patient A's state of alertness and orientation to the practitioner immediately. [Denied] 4. The practitioner failed to order or arrange for appropriate medical tests to be conducted prior to prescribing fentanyl to Patient A including: (a) blood count; [admitted] (b) renal function; [admitted] (c) liver function. [admitted] 5. Between the time the practitioner prescribed Fentanyl to Patient A on 18 February 2015 and 22 February 2015, the practitioner failed to conduct any follow-up consultation with Patient A which he should have done due to the high content of fentanyl in the 50mcg/h patch. [Admitted: practitioner states he verbally directed the nursing staff to advise him of any issue concerning Patient A as was the standard procedure at the facility] 6. On 23 February 2015, after the practitioner noted that Patient A had been unconscious for two days and unresponsive, the practitioner failed to conduct an adequate clinical assessment of Patient A in that he did not: (a) perform a comprehensive medical examination including ordering blood tests; [admitted] (b) consider differential diagnoses for Patient A, including opiate overdose, other than "stroke"; [not admitted] (c) assess the exact level of Patient A's narcosis by performing a naloxone challenge. [Not admitted] 7. On 23 February 2015, after the practitioner noted that Patient A had been unconscious for two days and unresponsive, the practitioner prescribed further medications to Patient A, including morphine 2.5mg subcutaneous (4th hourly), midazolam 25mg (2-4 hourly) and glycopyrrolate (200mg) for Patient A which were not clinically indicated in circumstances where: (a) the practitioner had not assessed Patient A's narcosis by performing a naloxone challenge; [admits that he prescribed such listed medications but denies they were not clinically indicated] (b) the combination of the medications in light of the residual influence from the fentanyl patch put Patient A at risk of respiratory depression and cardiac arrest; [admitted] (c) there was no definitive diagnosis of a terminal illness; [admitted] (d) Patient A had shown a significant and serious decline after being administered narcotics for pain. [admitted]

RESPONDENT'S REPLY

The respondent admits particular 1(a); particular 2(a), 2(c), 2(f) (ii).
The respondent does not admit particular 1(d).
As to particular 2, the respondent does not admit particular 2(b); denies particular 2(d); and denies particular 2(f)(i).
As to particular 3(a), the respondent admits he did not make observations, being blood pressure and pulse, but denies that he did not observe respiratory rate and depth, alertness and orientation. The respondent does not admit particular 3(b) and denies particular 3(c).

COMPLAINT 2

The particulars to Complaint 2 repeat the allegations in the particulars to Complaint 1, and such Complaints are relied upon both individually and cumulatively.
The respondent admits he is guilty of unsatisfactory professional conduct and admits subparagraph (1) but denies that he is guilty of professional misconduct.

THE EVIDENCE

The Tribunal has been provided with statements by the practitioner and by each of the patient's three daughters.
An expert report was prepared by Dr Geraldine Duncan. Such report was commissioned by the HCCC but was not relied upon by it. However the respondent has tendered and relies upon the report. The HCCC relies upon a medical report of Dr Kertesz which is referred to in more detail hereunder.

Dr Duncan's Report

Dr Duncan reviewed the notes of Jemalong. Dr Duncan considered that the notes were unsatisfactory in that there should be a routine daily nursing note made for each patient at a care facility. In the absence of any explanation, Dr Duncan considers this demonstrates "a systems failure at the outset".
Dr Duncan noted on 3 February at 14:30 hours (before the transfer of her care to the practitioner) the patient was constantly calling out but no record is made as to whether Dr Laksito was called. As to the entry on 5 February namely the transfer of the patient's care to the practitioner, she notes that there was no record of any details concerning the transfer.
Dr Duncan notes that the practitioner stated that when he undertook the care of the patient, her patient history was new to him although he observed her agitation, particularly nocturnal. The notes concerning his management of the patient record as follows: "Continue current management".
On 18 February 2015 the practitioner noted the patient was examined.
On 23 February the practitioner reported that the patient had been unconscious for two days; pupils were 2 mm but reactive; plantar responses were down going. He discussed her condition with the family and at 21:40 hours he made an entry in the notes that he confirmed life was deceased at 21:20 hours.
Dr Duncan states that the patient was noted to call out in pain frequently and that the nursing staff asked the practitioner to prescribe Endone. However Dr Duncan noted there is nothing in the nursing notes to support such assertion until the entry on the evening of 16 February that the Endone had been received. There was no comment in the nursing notes whether the practitioner was approached prior to the entry to consider further pain management for the patient.
Dr Duncan observes that if the practitioner had been at that nursing home but did not have time to review the patient, the nursing staff should have documented this fact. If the practitioner prescribed such treatment at the request of nursing staff without examining the patient, this would constitute unwise management and be below the level of care expected. If the practitioner did not have time to review the patient it would have been wiser not to have prescribed a narcotic.
However, Dr Duncan notes that if the patient's condition worsened, there is no evidence of the nursing staff having consulted the practitioner for a review prior to 16 February. The patient had been under the care of the practitioner for 11 days (care transferred on February 5, 2015). Dr Duncan considers that since there was no review in this period, it demonstrates a standard of care less than should be expected. She does comment however that Dr Laksito's notes made on 1 December 2014 records that the patient was more settled and subdued in the previous 24 hours and that the "current opioid" was to continue but the dosage was to be kept low. However the opioid is not identified, nor listed in the medication charts and on reflection, Dr Duncan stated that it was now clear that the handwritten words "current opioid" in fact said Haloperidol.
Dr Duncan records that the patient was possibly opioid naïve. There was no evidence that she was in receipt of opioid medication at the time of the prescription subject to the entry on 1 December of Dr Laksito.
Dr Duncan considers that the prescription of a Fentanyl patch in an elderly patient "with no obvious or apparent consideration of whether she had ever really been on a narcotic medication" was most unwise and deserves criticism. She continues: Hence it is difficult considering the above to state whether [the practitioner's] behaviour is significantly below those behaviours currently exhibited by medical care in nursing homes expected deserving strong criticism rather than just criticism.
Dr Duncan confirms her view that such behaviour deserves criticism.
Further, Dr Duncan considers that the practitioner should have started with a low dosage and increased the dosage if necessary. To give such strong dose fell below the requisite standard. Following administration of the Fentanyl patch, it remained on for 2 ½ days although the family states it had been on the patient for four days. A medication chart exists dated 18 February 2015 recording that the treating doctor of the patient was Dr Laksito. However a comparison of the signatures shows that it appears that the practitioner signed the relevant form, not Dr Laksito. Again, Dr Duncan is critical of the record-keeping at the nursing home.
Dr Duncan is critical of the records maintained where it appears there is no follow-up by the practitioner after the treatment was provided. She states that she would have expected the practitioner to have visited the following week to assess progress. The practitioner's medical notes do not include any reference to a possible time of follow-up. In this respect the practitioner invites criticism.
Further, Dr Duncan states that she has never prescribed an opioid patch to an elderly patient. As such, the patch may have masked an underlying problem. It is possible that the fever recorded in the patient could have been a side-effect of the patch or as a result of a drug interaction between the other medication she was taking and the Fentanyl. Such drug interaction with fever is known as Serotonin Syndrome and is potentially fatal.
Dr Duncan observed that there is no note concerning any contact with the practitioner between the 19 and 22 February. There is no evidence that the nursing staff sought his advice. Accordingly such an instance demonstrates system failures and lack of communication between the nursing staff and the practitioner.
Dr Duncan considered the assessment of the patient made by the practitioner on 18 February 2015 and did not believe that it was unreasonable. She states: Overall [the practitioner] set out his medical notes in an organised manner and formulated a plan. I can be critical that there was no review date and it is not clear how much he made himself au fait with her current therapies. Hence he does derive [sic: deserve?] criticism and I would recommend more training in management of the elderly, particularly the institutionalised elderly.
Dr Duncan considers that the patient may have suffered a stroke prior to the application of the patch. She notes that a daughter noted that she had always been able to engage in conversation with the mother, but that on Wednesday, 18 February there was a change in behaviour and on Thursday, 19 February she seemed tired and sleepy. She was not eating or drinking and not responding to her daughter. Such observation preceded the application of the patch which appears to have been applied on the evening of 19 February. Dr Duncan considers that the patient had significant risk factors for stroke in that she was being treated for atrial fibrillation with warfarin and was on treatment for hypertension. She also had a current infection as evidenced by the high fever recorded in the days preceding her death.
Dr Duncan did not consider that the practitioner's diagnosis of a stroke, made on February 23, 2015, was inappropriate. Overall, Dr Duncan concluded that it was "difficult to give strong criticism" to the practitioner.
The Tribunal has also been provided with a report dated 25 April 2015 of Dr Glenn J. Pereira. Such report states that this Practitioner had treated the daughter of the patient for many years. Such patient had complained to Dr Pereira concerning the circumstances relating to the death of her mother. As a result, Dr Pereira lodged a complaint with the applicant. Subsequently, the daughter of the patient provided a statement to the applicant dated 22 January 2016 in which she set out in detail the events surrounding the admission of her mother to Jemalong and the subsequent decline in her health.

Dr Kertesz Report.

The Tribunal has also heard evidence from an independent expert, namely Dr Emery Kertesz. Dr Kertesz was requested to provide an assessment of the treatment provided by the respondent to the patient for the five days before her death with a "morphine" patch. Such report describes the condition of the patient on admission in detail. Having considered the circumstances, Dr Kertesz makes the following observations: The patient's night time agitation could have been well controlled by the administration of a small dose of Tricyclic antidepressant or even changing her from Sertraline to Mirtazapine pending no contraindications for that change. She was already prescribed Temazepam 10mg nightly and hence further Benzodiazepine prescribing may have had significant interactions with her or other medications. Dr Rahman's failure to consider less potent medications and his failure to explore other forms of pain relief and nocturnal sedation for The patient leads me to consider that Dr Rahman's conduct fell below the standard expected of a practitioner of an equivalent level of training or experience with that departure being significantly below that standard expected and the departure invites my strong criticism. 5. Please provide your opinion on the starting dosage of Fentanyl Dr Rahman prescribed the patient, on 18 February 2015, by 50ugs/hr. Conceding that Fentanyl patches could have been commenced in the patient's pain management situation, the starting dose of 12mcg per hour would have been more appropriate to allow time for the medication to distribute throughout the patient's system without too high a peak blood level. The dose could then have been increased third to sixth daily as required, as tolerated to the prescribed dose of 50mcg. This would then have taken nine days and allowed the patient some time to sensitize to the Narcotic. Given that Dr Rahman was unaware that the patient had not been given her Oxycodone, the starting dose never the less was considerably higher than one would contemplate when commencing opioid management for pain. Dr Rahman's choice of 50mcg as an initial dose for the management of the patient's symptoms was erroneous, even if she had been given the Oxycodone as previously ordered and thus this choice of strength of Fentanyl leads me to consider that Dr Rahman's conduct fell below the standard expected of a practitioner of an equivalent level of training of experience with that departure being significantly below that standard expected and the departure invites my strong criticism.
Dr Kertesz continued: Dr Rahman's failure to check whether the Endone had been administered in total or in part as per his written instructions prior to prescribing a 50mcg Fentanyl patch leads me to consider that Dr Rahman's conduct fell below the standard expected of a practitioner of an equivalent level of training or experience with that departure being significantly below that standard expected and the departure invites my strong criticism. 7. Please provide your opinion on the management of the patient's condition by Dr Rahman: a. After he prescribed her a 50ugs/hr [sic: 50mcgs/hr] Fentanyl patch on 18 February 2015. b. Including what instructions, if any, should have been given to nursing staff. Prior to prescribing the 50mcg Fentanyl patch Dr Rahman could have checked The patient's blood picture - specifically her blood count, her renal function and her liver function given that the majority of narcotic medications are broken down to metabolites in the liver and excreted through her kidneys. Had these tests been ordered he could have been in a superior position to consider what narcotic analgesics he could or should prescribe to her for her symptoms. Had he ordered blood tests he would have been in receipt of the results within 48 hrs. A follow up consultation within 48 hrs - due to the longer half life of the patch- would have been in order. Subsequent to prescribing the narcotic patch the nursing staff should have been ordered to observe the patient for routine signs such as: Blood pressure, pulse, respiratory rate and depth, alertness, and orientation at least 6-8th hourly to check for the signs of over dosage from the narcotic. The nursing staff should have been charged with reporting changes in the patient's state of awakedness and orientation immediately upon any changes being recorded by the staff on duty. Dr Rahman's failure to organize a short term follow up subsequent to the initiation of her management with a Fentanyl patch and his failure to organize adequate follow up of observations by the nursing staff of the facility leads me to consider that Dr Rahman's conduct fell below the standard expected of a practitioner of an equivalent level of training or experience with that departure being significantly below that standard expected and the departure invites my strong criticism.
Following the patient becoming unconscious, the respondent took certain steps which are commented upon by Dr Kertesz as follows: On 23/02/15 Dr Rahman examined the patient and noted that she had been "unconscious for 2 days" His notes regarding her assessment and examination are sparse, imprecise and vague. A more comprehensive assessment and examination would have been in order especially since her condition had deteriorated significantly since her admission to the nursing facility. His "impression" of her having had a stroke was made on what appeared to be superficial physical examination. There is no evidence in the notes or the material provided that Dr Rahman considered an opiate overdose at any stage of his assessment of the patient. Had this been considered a Naloxone challenge could have immediately shed light on her state of delirium. Were that performed the diagnosis may have been clarified and her management may have gone along different lines. If the naloxone challenge had been negative there could have been solid reasons for her palliation in her final illness. Dr Rahman's failure to provide an adequate medical assessment of the patient's presenting symptoms and physical findings leads me to consider that Dr Rahman's conduct fell below the standard expected of a practitioner of an equivalent level of training or experience with that departure being significantly below that standard expected and the departure invites my strong criticism.
In relation to the respondent's failure to perform a medical assessment following the patient becoming unconscious, Dr Kertesz states: Dr Rahman's failure to do an adequate medical assessment of the patient (including basic blood tests) his paucity of adequate examination and note taking regarding the findings and his failure to consider any possible alternative diagnosis other than "Stroke" are disturbing. The patient was suffering from Atrial Fibrillation and was Warfarinised and thus had a significant degree of secondary stroke protection from her medication. There is no mention in any of Dr Rahman's notes of her INR values although the material provided by the commission does include details of pathology testing for the patient's INR levels. (INR levels are used to assess the degree of anticoagulation for patients receiving Warfarin for anticoagulation). The Fentanyl patch had been removed at 0720 hrs on 22/02/15 but therapeutic guidelines show that the elimination rate of Fentanyl from a patient is a half at 15 - 20 hrs. This rate would be significantly less in the case of an elderly patient especially with the co-morbidities suffered by the patient. Due to Dr Rahman's limited differential diagnoses and his failure to assess the patient adequately in her terminal illness, leads me to consider that Dr Rahman's conduct fell below the standard expected of a practitioner of an equivalent level of training or experience with that departure being significantly below that standard expected and the departure invites my strong criticism. Furthermore as outlined above it appears that Dr Rahman checked the patient's pupils and her plantar reflexes and perhaps (not established) her face and came up with the diagnosis of a possible stroke. No other system appears to have been examined or assessed and it is unclear whether Dr Rahman thought that she may have had a cerebrovascular accident from a bleed or an embolus, a coronary occlusion or some other catastrophic terminal event. She may have been under the influence of the prescribed Narcotic medications but whatever the diagnosis may have been, there does not appear to have been any differential considered. In the presence of pin point pupils which are reactive and in a situation where a patient has recently been administered a Narcotic analgesic, it would stand to reason that narcotic overdose could be a diagnosis. Under this circumstance, administration of the Narcotic reversal agent Naloxone would rapidly clarify the situation. Were the Naloxone challenge negative, then other diagnoses such coronary occlusion, cerebrovascular bleed or cardiovascular embolisation could be considered.
Dr Kertesz concluded: Dr Rahman's failure to consider a list of potential diagnoses rather than to assume on the strengths of the following signs - "unresponsive, pupils 2mm reactive, plantar reflexes equivocal, looks like right side more weak than left" leads me to consider that Dr Rahman's conduct fell below the standard expected of a practitioner of an equivalent level of training or experience with that departure being significantly below that standard expected and the departure invites my strong criticism. 10. Please provide your opinion on Dr Rahman's prescription of Midazolam 25mgs [sic: 2.5mg] x 2-4 hourly and Morphine 2.5mgs s/c 4th hourly to the patient on 23 February 2015 considering: a. Her presenting symptoms of pinpoint pupils, unresponsiveness and unconsciousness. b. The possible residual effects of the 50ugs/hr [sic: 50mcgs/hr] fentanyl patch which had been removed on the morning of 22 February 2015. c. The risk of respiratory depression. The administration of Midazolam, Morphine and Glycopyrrolate in combination is routine palliative care medicine. These medications have been shown through studies to palliate patients in extremis and who are moribund to allow dignified and peaceful transitions to death. Evidence shows that subcutaneous administration of this triad of medication is superior to any other medications in the terminal phase of life. Had the patient had a Naloxone challenge to assess the degree of the delirium caused by narcotic medication revealing that she was either under the influence of the residuum of the fentanyl patch or not so. The diagnosis of cerebrovascular accident (whatever cause) or coronary occlusion would have become a real entity and hence the administration of palliative treatment would have been the treatment of choice. However doubt remains as the washout period of 24 hours from the removal of the patch on 22.02.15 means that 15-20 hours post removal, half of the Fentanyl would still be active in the body and at 24 hours one quarter would still be active. In oral Morphine equivalent values, this means that post patch removal at 20 hours, the equivalent of 60-100mg Morphine effect would be present and at 40 hours, 30-50mg oral Morphine effect would be present. The addition of 2.5mg of subcutaneous Morphine 4th hourly means that at 1900hrs (shortly before death), the patient's oral Morphine equivalent levels could have been of the order of 100mg-with the addition of Midazolam (short acting Benzodiazepine sedative) and Glycopyrrolate (anitcholinergic antisecretion medication). This combination of medications in these levels may have resulted in respiratory depression and possible cardiac arrest. The failure of Dr Rahman to assess the true and exact degree of the patient's narcosis by undertaking a Naloxone challenge and his ordering further narcotics, Benzodiazepines and anticholinergic medications without a clear and definitive diagnosis in her terminal illness, when the patient had shown a significant and serious decline after being administered narcotics for "pain and nocturnal agitation", leads me to consider that Dr Rahman's conduct fell below the standard expected of a practitioner of an equivalent level of training or experience with that departure being significantly below that standard expected and the departure invites my strong criticism.

Evidence of practitioner

The practitioner acknowledges that the care of the patient was transferred to him after she became a resident in Jemalong in November 2014. The practitioner, whilst working as a general practitioner in Forbes, provided professional services to Jemalong. He stated that on 13 February 2015 he received a request from Jemalong to write a medication chart. He states that the letter advised the patient was "on Endone" that was effective.
On 16 February 2015 whilst attending to another patient at Jemalong, he was asked by one of the nursing staff to give something to the patient who was in pain. He acknowledges that he did not consult the patient but directed the nursing staff to administer one Endone tablet, four times per day as required.
On 18 February 2015 he received a telephone call from Jemalong advising that the patient was screaming and requesting pain relief. On the same day the practitioner attended the nursing home around midday and thereafter discussed the patient's condition with the attending nursing staff who confirmed that the patient was in pain and required medication. The practitioner states he then reviewed the patient, noted a history and observed that she experienced chronic pain and agitation at night. He considered, after examining the patient, that the current plan of management should continue together with her other medication for other conditions.
The practitioner states that he was under the belief that the patient was being administered Endone 1 x 4 tablets per day. Accordingly in the light of her continuing pain, he considered that such treatment was insufficient. He acknowledges that he should have consulted the medication charts to ascertain precisely what had been administered.
In consequence the practitioner directed that Endone cease and instead a Fentanyl patch of 50mcg/hr be provided. He states that he recorded the relevant entries in the medical progress notes of Jemalong before returning to other patients. The practitioner states that he verbally advised the nursing staff that in the event of any change to her condition that the nursing staff were to notify him immediately.
The practitioner states that according to the records of Jemalong, the patch was applied about 20:30 hours on 19 February 2015. On 21 February 2015 the patient was observed to be sleepy but not in pain.
The practitioner attended Jemalong on 23 February 2015 at around noon, and found that the patient was unresponsive. He states that he discussed with family members whether to send her to hospital for investigation including a CT scan of her brain but the family declined. The practitioner asserts that they sought that medication be administered for palliative care. It should be noted that the daughters of the patient refute the version provided by the practitioner.
The practitioner acknowledges that he should have reviewed the medication charts to have ensured what medication the patient was being administered. He also concedes that the prescription of such a strong patch was not clinically appropriate. The practitioner states that he did request the nursing staff to inform him should there be any change in the patient's condition.
The practitioner stated he is aware, when prescribing Fentanyl or such other Schedule 8 medication, it is necessary to ascertain the recent opioid medication to determine whether the patient is opioid naive.

FINDINGS

The Tribunal considers that there are several respects in which the conduct of the practitioner has fallen below the standard of a medical practitioner. Such conclusion arises from the following facts: 1. The practitioner failed to consult the patient for 13 days after she was transferred to his care. A facsimile dated 5 February 2015 was forwarded to the practitioner, notifying the consent given by one of the daughters of the patient, for the practitioner to take over the care of the patient. On 12 February 2015 another facsimile addressed to the practitioner from Jemalong requests the practitioner to order a Warfarin dose for the patient. Accompanying such facsimile was a pathology report containing the patient's INR level. 2. The practitioner, when asked by the nursing staff to provide pain relief for the patient, prescribed Endone 5 mg (1mg x 4 times per day as required) without having seen the patient and without having any knowledge of her recent history of pain medication. The patient was already receiving Panadol Osteo for pain management. 3. The practitioner prescribed a further opioid, namely Fentanyl 50 mcg/hr to a frail, aged patient without careful regard to her existing medications and without determining whether she was opioid naïve. Further, the practitioner failed to consider the potential drug inter-relation between the patient's anti-depressant Sertraline and Fentanyl. 4. The practitioner prescribed an opioid of strong strength, Fentanyl 50mcg/hr without having regard to determining firstly whether a lower dose would provide the necessary relief. 5. The practitioner, when prescribing Fentanyl 50mcg/hr prescribed an excessively high dose and did not appear to consider less potent opioids, including transdermal buprenorphine, or non-narcotic medication. 6. The practitioner failed to conduct an adequate clinical assessment of the patient before prescribing Fentanyl including a blood count; renal function and liver function tests. 7. The practitioner failed to confirm whether the patient had been administered the prescribed Endone by reviewing the patient's medical records prior to prescribing Fentanyl. The practitioner was informed that the Endone was not working, but he failed to interrogate the nursing home staff as to the quantity of Endone administered to the patient in the preceding days. 8. The practitioner did not provide adequate instructions to the nursing staff, either verbally or in writing following the initial administration of the Fentanyl, a potent and new drug to this patient, including reporting whether the patient was receiving adequate pain control or was having adverse or toxic effects. 9. The practitioner failed to provide instructions to the nursing staff to undertake routine observations including blood pressure, pulse, respiratory rate and depth, alertness and orientation; or to check for signs of overdose from the Fentanyl. 10. The practitioner failed to conduct any follow up of the patient after the Fentanyl of a high dosage was prescribed. 11. On 23 February 2015, after the practitioner noted that the patient had been unconscious for two days and unresponsive, the practitioner failed to conduct an adequate medical examination. The practitioner failed to: 1. Consider different diagnosis for the patient, including drug overdose 2. Failed to consider whether the Fentanyl could be the cause of the sudden and serious decline in the patient's condition following the administration of Fentanyl. 1. It should be noted that the daughters of the patient claim that the cause of death as a stroke was never discussed with them at the time of their mother's death. Serotonin syndrome and infection of any source did not appear to have been considered despite the patient's recent fevers of up to 39 degrees. Residual narcosis was also not considered despite reduced level of consciousness and constricted pupils.

Observations

The Tribunal has noted the inadequate records maintained by the nursing staff and the lack of communication between the nursing staff and the practitioner. For example, the nursing staff failed to administer the Endone prescribed by the practitioner, and misled him by telling the practitioner that the "Endone was not working", and requesting a patch.
The nursing staff also failed to communicate with the practitioner at all following the administration of the Fentanyl until shortly before the patient's death. The sudden deterioration in the patient, evidenced by a high temperature and serious decline in level of consciousness, together with minimal oral intake, should have triggered a medical review.
The delay of days in arranging for a medical review most likely contributed to the patient's death. The family voiced concern as early as 20 February 2015, but no steps were taken to communicate with the practitioner or to seek alternative medical advice. By the time the patient was reviewed by the practitioner on 23 February 2015, her condition was very likely to have been terminal.
However the failure of the nursing staff and management of Jemalong does not absolve the practitioner in respect of the above findings. The Tribunal has also noted the divergent expert opinions concerning the practitioner's conduct. However both experts are unanimous that the practitioner can be criticised for his failures. The only question of difference relates to the categorisation of aspects of criticism, and whether such criticism should be categorised as strong criticism or merely criticism.
Irrespective, the Tribunal is satisfied that the practitioner's conduct was inadequate and demonstrates such a lack of careful attention to the patient constitutes unsatisfactory professional conduct under s 139B(1)(a) of the National Law.

CONSIDERATION

The jurisdiction exercised by the Tribunal is protective. Section 3A of the National Law requires that the "protection of the health and safety of the public must be the paramount consideration" when considering an application to practice medicine. Inherent in such a requirement is that the applicant must be considered to be a "fit and proper person" to practise. As was stated in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at [56] (Toohey and Gaudron JJ), when speaking of the risk of a possible recurrence of a failure to observe the standards: "… the question may be whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur", and that there may be sufficient ground to make a finding that a person "is not fit and proper to undertake the activities in question".
For observations confirming the protective nature of this jurisdiction, see for example Health Care Complaints Commission v Do [2014] NSWCA 307, at [35] where Meagher JA said the following, inter alia: 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…
It has also been recognised that where conduct is regarded as sufficiently serious, deregistration or suspension from practice may involve an element of punishment: see Director-General, Department of Ageing Disability and Home Care v Lambert [2009] NSW CA 102; (2009) 74 NSWLR 523 at [83].
The Tribunal considers that the practitioner has been guilty of conduct which falls significantly below the requisite standard in the following respects: 1. The failure to consult both the patient and the patient's medical history before prescribing Endone. Whilst the practitioner may have been aware that the patient had been prescribed Endone during 2013, he had no up-to-date knowledge whether that medication was effective, whether or not she had taken it recently, and more importantly, whether she was already taking other medication. 2. The failure to consult the patient's medical charts before prescribing the Fentanyl patch to determine whether the Endone had been administered; and if so in what quantities. 3. The failure to prescribe a low dose of Fentanyl, possibly 12mcg/hr, and gradually increasing the dose instead of prescribing an excessively high strength at the outset; and in a patient who was opiate naïve. 4. The failure to give both written and oral specific instructions to the nursing staff to be vigilant to observe and record observation parameters, any symptoms or changes in condition; and to notify him of any such concerns. 5. The tests undertaken by the practitioner on 23 February were inadequate: when the patient was known to be unconscious, it was an insufficient to raise the arms and to note what the practitioner thought was weakness as evidence of a stroke. Level of consciousness, tone and reflexes were not recorded (except the plantars which were symmetrical and equivocal), and this would be expected from the practitioner who has neurosurgical training and was suspecting a stroke. Further, the constriction of the pupils is a cardinal sign of opiate overdose, and the presence of high fever did not lead to any evident consideration of sepsis. 6. The manner in which the decision was made that the patient was suffering from a stroke is alarming. A drug overdose was certainly a potential cause of death, or cause of the deterioration leading to death, and should have prompted consideration. By the time the practitioner saw the patient however, her deterioration was likely irreversible. The medication which was then prescribed after the diagnosis was appropriate, only because it was too late to preserve the life of the patient and the situation was palliative. However the Tribunal does not find that a naxolone challenge was necessarily required.
The Tribunal concludes that the unsatisfactory conduct of the practitioner extends to professional misconduct, as that term was exhaustively considered by the New South Wales Court of Appeal in Chen v Health Care Complaints Commission [2017] NSWCA 186, especially at [19-20], [23], [75]. It is immaterial that the subject failures were caused in respect of only one patient: see Health Care Complaints Commission v Chamberlain [2017] 122 at [41].

The Practitioner

The practitioner graduated from the University of Dhaka, Bangladesh in 1983, when he was awarded a Bachelor of Medicine and Bachelor of Surgery. He was first registered as a practitioner in Australia on 15 March 2004.
The practitioner was continuously registered on the National Register of Health Practitioners from 1 July 2010 to the present time. He has worked in various rural practices, and undertakes locum positions in Sydney. His registration is current until 30 September 2018.
The Tribunal notes a letter of reference dated 6 February 2018 provided by a medical practitioner, Dr Elsadig Mohammed, which refers to the practitioner's skill and his dedication, and stating that the conduct of the practitioner was atypical of his usual standards.
The practitioner has undertaken courses relating to opioid pain management.

Comment

The HCCC has submitted that there should be a short suspension of the practitioner. The Tribunal considers that a suspension of six months is required during which time the practitioner is prohibited from prescribing any Schedule 8 drugs or opioids. The Tribunal considers that the inaccurate information provided to the practitioner by the nursing staff on 18 February 2015 may have been a contributing factor to potential over-medication of the patient. Accordingly, the Tribunal has limited the period of suspension which otherwise might have been imposed.

Orders

The Tribunal makes the following findings and orders: 1. That the respondent is guilty of professional misconduct in respect of Complaints 1 and 2. 2. That the respondent pursuant to section 149C of the Health Practitioner Regulation National Law (NSW), be suspended for a period of six months from the date of these orders. 3. That the respondent be prohibited from prescribing Schedule 8 drugs or opioids upon the expiration of the suspension period until he has completed the courses referred to in paragraph 3 of Annexure A attached hereto. If such courses are not available, an alternative course or courses is to be approved by the Medical Council of NSW 4. That conditions be imposed on the respondent as set out in Annexure A hereto. 5. Subject to (5) of Annexure A, the respondent is to pay the costs of the applicant. 6. The respondent has liberty to apply within 21 days should the respondent seek a different order for costs.

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 Amendment : 29 March 2018, Annexure A

ANNEXURE A The following conditions are imposed on the practitioner's registration: 1: Within 21 days of the expiration of the suspension period the practitioner is to nominate a registered medical practitioner to act as his professional supervisor for approval by the Medical Council of NSW ("the Council") in accordance with the Medical Council of NSW's Compliance Policy - Supervision Category C (as varied from time to time). 2: The practitioner is: (1) To participate in meetings with the Council-approved supervisor monthly or as varied by the Council. (2) To authorise the Council to provide the proposed and approved supervisor with: (a) A copy of this decision. (b) A copy of these practice conditions. (3) To authorise the supervisor to inform the Council (in an approved reporting format) on a monthly basis that these meetings have occurred, and ensure that the supervisor does in fact provide those reports. (4) To authorise the supervisor to inform the Council immediately if the relationship ends or of any concerns regarding the performance of the practitioner or his compliance with any conditions on his registration. (5) To be supervised for a minimum period of one year from the expiration of the suspension period and as subsequently determined by the Council. (6) To otherwise comply with the Medical Council of NSW's Compliance Policy - Supervision Category C (as varied from time to time). 3: The practitioner shall within 12 months of the expiration of the suspension period: (1) Undertake a course held by the University of Sydney headed "Opioid Treatment Accreditation Course" and provide evidence in writing to the Council of his successful completion of the course. (2) Undertake a course known as GPCE ALM related to the timely diagnosis and improved management of dementia. (3) Complete the following E-Learning modules: AFP Clinical Challenge, April 2015. E-Learning: E77165 Aged Care: Managing Elderly Patients In Primary Care; E-Learning: E97634: Management of Chronic Non-Cancer Pain In Older Patients; E-Learning: E75558 AVANT WEBINAR: Proscribing Perils - Opioids, polypharmacy and Medication Errors. 4: If any course specified in Condition 3 is unavailable then the practitioner is to complete an equivalent course as approved by the Council. 5: All costs associated with completing courses as set out in Condition 3 are to be met by the practitioner.

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

Amendments 29 March 2018 - Amendment to Annexure A Conditions 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: 29 March 2018

At a glance

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Decision date

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Judgment (21 paragraphs)

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Legislation Cited (1)

Cases Cited (5)