Health Care Complaints Commission v Ruff

NCAT Occupational|2020-06-12|Before: Dr J

REASONS FOR DECISION

The Health Care Complaints Commission ('the HCCC') made an application to the Tribunal for disciplinary findings and orders against Dr Anastasia Ruff on 12 December 2019 ('the Application') under the Health Practitioner Regulation National Law (NSW) ('the National Law').
Dr Ruff is a General Practitioner. She was first registered on 25 March 1986. From 2004 until October 2015, she practised at a small medical practice in south western Sydney ('the small practice'). Since October 2015, she has practised at a larger medical practice in the same region ('the larger practice').
The HCCC's application rests on four complaints: 1. Complaint one is a complaint of unsatisfactory professional conduct. Complaint one alleges inappropriate prescribing in relation to Patients A, B, C, D and E, who are five people from the same family, between 7 January 2004 and 14 December 2015, together with the inappropriate administering of morphine to one member of that family on numerous occasions between March 2004 and September 2015. Complaint one alleges the prescribing of certain drugs in circumstances where Dr Ruff either knew or ought to have known that the drugs were being diverted from the person in whose name they were prescribed to another person. The particulars of complaint one are set out in more detail at [29], below. 2. Complaint two is a complaint of unsatisfactory professional conduct, and alleges inappropriate prescribing in relation to Patient F. The particulars of complaint two are set out in more detail at [122], below. 3. Complaint three is a complaint of unsatisfactory professional conduct and alleges the failure to maintain adequate medical records for patients A, B, C, D, E and F. The particulars of complaint three are set out in more detail at [142], below. 4. Complaint four is a complaint of professional misconduct which relies on complaints one to three in the manner set out in [152] below.
Dr Ruff, in her Reply to the Application, admitted most of the particulars of complaint one and all of the particulars of complaints two and three. Dr Ruff did not admit complaint four.

Background in relation to Patients A, B, C, D and E

On 12 January 2016, a daughter of Patient A (who we will refer to as QL) sent an email from her Iphone to the HCCC in the following terms: Goodmorning, I believe my mothers doctor of over 20 years is being neglect full and breaking the law my mother has been abusing pills given to her by dr A Ruff of Minto medical centre. For over 20 years her children and husband have been aware of this but had no idea just how much she was taking until the 14 December 2015 when she attempted to kill herself the police ambulance and hospital stuff found all the medication was dated the same day no one could believe a doctor could give so many highly addictive pills in one day. When my mum woke up (10 days in a coma) we all talked to her about how much she was abusing pills that's when we found out her so called doctor was giving her on a Monday 3 to 4 different highly addictive prescriptions and then again on the Friday so in one week she was given 2 months worth of pills and this happens weekly we believe dr ruff is also giving our mum prescriptions in our names starting from when we where 10 years old (now 28 years old) I hope you can help put an end to this doctor she has caused so much pain in our family. I know she is not forcing our mum to take the pills but by giving her what ever she wants she has made this addiction so high and continue for so long. My mothers name is [Patient A] my name is [XXXX] we believe she has given my mum prescriptions in the names of 5 more family members names as well. I hope you can help stop this thank you [XXXX] [sic].
The HCCC undertook an investigation regarding Dr Ruff's treatment of Patient A and her family. Statements and documents were obtained. Dr Ruff was informed of the investigation and asked to provide to the HCCC all of the medical records and prescribing records relating to Patient A and her family.
Dr Ruff was Patient A's general practitioner for all or most of the period between 2004 and December 2015, as well as a period prior to 2004 which is not the subject of any complaint.
Throughout the period between 2004 and December 2015, Patient A would generally visit Dr Ruff two or three times per week. Almost all of those visits resulted in at least one prescription, and many of those visits resulted in Dr Ruff giving Patient A multiple prescriptions.
Patients B, C, D and E are family members of Patient A and Dr Ruff issued prescriptions for each of them from time to time in the period from 2004 to December 2015. None of the complaints before the Tribunal relate to QL.

Background in relation to Patient F

Patient F made a complaint against Dr Ruff by email dated 9 October 2018. In her email, Patient F alleged that Dr Ruff had prescribed Duromine 40mg for her for 20 years. Patient F said that she had been addicted to the drug and had experienced sickness and side effects when she stopped taking it. Patient F blamed her addiction to Duromine for numerous adverse health and life impacts she experienced over the period that she was taking the drug, which she detailed, and she blamed Dr Ruff for that addiction. Her complaint, in effect, was that she should not have been prescribed Duromine by Dr Ruff for 20 years.
Dr Ruff was Patient F's general practitioner during the period from 11 April 2007 to 21 July 2016.
As we have said, Dr Ruff's treatment of Patient F was the subject of complaint two and Dr Ruff has admitted the particulars of complaint two.

The National Law

The National Law provides, in s 3, that the object of the National Law, among other things, is to establish a national registration and accreditation scheme for the regulation of health practitioners. The National Law says, in s 3(2)(a): (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered;
The National Law says, in s 3A and 4: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note - This section is an additional New South Wales provision. 4 How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in section 3.
The National Law defines the terms 'unsatisfactory professional conduct' as it relates to medical practitioners in s 139B and s 139C and 'professional misconduct' in s 139E.

The role of the Tribunal

Under s 149 of the National Law, the Tribunal may exercise its disciplinary powers under Subdivision 6 of Division 3 of the National Law if a complaint against a health practitioner is proved or admitted.
The onus of proof in relation to the facts alleged in a complaint rests upon the applicant for disciplinary orders.
The Tribunal is not bound by the rules of evidence when hearing a disciplinary complaint against a health practitioner under the National Law (see s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW), but note s 67 concerning privileged documents).

Complaint One - Patient A

Complaint one of the complaint filed in the Tribunal by the HCCC with the application for disciplinary findings and orders against Dr Ruff is a complaint of unsatisfactory professional conduct under s 139B(1)(a) and/or (l).
The preamble to the complaints and Particular 1 of complaint one is as follows: The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. 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; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the particulars of the Complaint in itself justifies a finding or unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINTS The practitioner was first registered on 25 March 1986 and has worked as a General Practitioner in South-Western Sydney since 1988. From 2004 to October 2015 the practitioner was employed as a GP at [the smaller practice]. From October 2015 to the present date she has been employed as a GP at [the larger practice] Patient A was a patient of the practitioner for various periods from 2003 to December 2015. She presented with multiple health issues including degenerative back pain, migraines and occasional suicidal ideation. Patients B, C, D and E were close family members of Patient A and were treated on various occasions from 2004 to 2015 by the practitioner. Patient F was a patient of the practitioner for various periods from 1994 to 2018. She presented with a long term history of mental health issues. PARTICULARS OF COMPLAINT ONE PATIENT A 1. The practitioner inappropriately prescribed the schedule 8 drug, Oxycontin to Patient A on the dates and in the quantities set out in the schedule attached and marked A: a. without performing an appropriate medical assessment prior to issuing the prescriptions; b. without clinical indication; c. without making appropriate and timely referrals for specialist assistance; d. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008 ("the PTGR"); e. without obtaining an authority to prescribe a drug of addiction to a drug dependent person contrary to section s 28(3) of the Poisons and Therapeutic Goods Act 1966, ("the PTGA") in circumstances where the practitioner had formed, or ought reasonably to have formed the opinion that Patient A was a drug dependent person; f. without responding appropriately to Patient A's drug dependent behaviour; g. without taking adequate steps to monitor and prevent Patient A stockpiling the drugs; h. in an inappropriate combination with schedule 4D drugs.
The Poisons and Therapeutic Goods Act 1966 provides, in s 28: 28 Prohibition on prescribing drugs of addiction in certain cases (1) A medical practitioner or nurse practitioner must not, without the proper authority, prescribe for or supply to any person a type A drug of addiction. (2) A medical practitioner or nurse practitioner must not, without the proper authority, prescribe or supply a type B drug of addiction: (a) for continuous therapeutic use by a person for a period exceeding 2 months, or (b) for a period that, together with any other period for which that drug or any other type B drug of addiction has been prescribed or supplied by the medical practitioner or nurse practitioner or has, to the medical practitioner's or nurse practitioner's knowledge, been prescribed or supplied by any other medical practitioner or nurse practitioner, would result in that drug, or that drug together with any other such drug, being prescribed or supplied for continuous therapeutic use for a period exceeding 2 months. (3) A medical practitioner or nurse practitioner must not, without the proper authority, prescribe for or supply to a person who, in the opinion of the medical practitioner or nurse practitioner, is a drug dependent person a type C drug of addiction. (4) For the purposes of this section, the proper authority means an authority under section 29 that authorises the medical practitioner or nurse practitioner to prescribe or supply the drug of addiction to the person concerned. (5) A drug of addiction may be prescribed for or supplied to a person by a medical practitioner or nurse practitioner without the proper authority if the medical practitioner or nurse practitioner is authorised by the regulations to prescribe or supply the drug without an authority under section 29. (6) In this section: type A drug of addiction means a drug of addiction prescribed by the regulations under this section as a type A drug of addiction. type B drug of addiction means a drug of addiction prescribed by the regulations under this section as a type B drug of addiction. type C drug of addiction means any drug of addiction (other than a type A drug of addiction).
In her Reply, which was provided to the Tribunal on 14 May 2020, the practitioner admitted each and every sub-particular of particular one of complaint one.
In admitting sub-particular (e), Dr Ruff implicitly accepted that Patient A was drug dependent. Dr Ruff also conceded this under cross-examination.
The Poisons and Therapeutic Goods Regulation 2008, in reg 79, provides: 79 Quantity and purpose of prescriptions to be appropriate An authorised practitioner must not issue a prescription for a drug of addiction in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. Maximum penalty - 20 penalty units or imprisonment for 6 months, or both.
In admitting sub-particular 1(d), Dr Ruff admitted that she contravened reg 79 of the Poisons and Therapeutic Goods Regulation 2008.
Schedule A, attached to the complaint, sets out, in 2959 entries over 173 pages, the prescriptions allegedly given to Patient A by Dr Ruff from 7 January 2004 to 14 December 2015 and filled at a pharmacy. Schedule A was compiled from Dr Ruff's notes, from Medicare records and from pharmacy records. The pharmacy from which each prescription was filled is recorded in Schedule A.
Despite the admissions in her Reply, at the beginning of the hearing Dr Ruff produced a handwritten list of prescriptions taken from Schedule A, which she submitted that she did not write.
Dr Ruff said, under cross-examination, that it was her belief that the prescriptions which did not appear in her notes, and the prescriptions which were the second of two scripts provided on the same day, were forgeries. Dr Ruff subsequently said that she had formed the view that those scripts issued by her in March 2004 and dispensed at a particular pharmacy were forged, so then she came to believe that all of the scripts apparently issued by her and filled at that particular pharmacy were forged. In relation to days when two scripts were issued, apparently by Dr Ruff, Dr Ruff said that she never issued two scripts on one day to the same patient. At first, she said that the first script might print on blank paper, so that she would send it to the printer again to be printed out on the prescription paper so "it shows as two prescriptions on the one day, but I would've only ever issued one prescription". Later in cross-examination Dr Ruff was taken to her medical records, where some of the prescriptions she was challenging were, in fact, recorded. Dr Ruff at first said that she could not write a prescription unless it was recorded on her computer. However, she then conceded that she was able to handwrite prescriptions from prescription pads in her possession.
In the context of prescriptions issued to Patient C in 2013, Dr Ruff denied issuing prescriptions on a series of days in February, August and December 2013, on the basis that there was no record of a consultation between her and Patient C for those days. She said that she believed that the prescriptions were forged. She said that she believed that 'they have stolen a prescription pad'. She said that, at a time which she could not now specify as to the year, there were "break ins at the surgery". She said 'over the years we have had objects being taken from the surgery'. She said that she could not specifically say that a prescription pad was taken, but that it could have been. Dr Ruff said that she did not report any theft to the Pharmaceutical Regulatory Unit because she did not notice that the pads had been stolen.
Later in her cross-examination, Dr Ruff was being questioned about two scripts, one for Panadeine Forte and one for Diazepam, which were recorded by Medicare and in pharmacy records as having been issued by her on 8 March 2004 to Patient A and dispensed at different pharmacies. Dr Ruff said that her car had been stolen in 1999 or 2000 and that one of her script pads had been in the car in her doctor's bag. Dr Ruff implied that the two scripts dated 8 March 2004 might have been written by a person who had obtained the stolen script pad from her stolen car four or five years before and given it to Patient A, or that Patient A had come into possession of the stolen script pad.
In relation to her evidence concerning the issue of whether Dr Ruff issued all of the prescriptions set out in Schedule A, we find that Dr Ruff was not a credible witness. Under cross-examination, over two days, Dr Ruff came up with a series of unrelated, sometimes incoherent, inherently implausible explanations for the scripts which she challenged.
We reject Dr Ruff's contention that there are prescriptions which are recorded in Schedule A that she did not write. We accept that Schedule A is accurate in relation to all of the patients who are the subject of complaint one. There was no application to amend Dr Ruff's Reply, and we rely on her admissions with respect to the information in Schedule A
Particular one of complaint one relates to the prescribing of Oxycodone. Oxycodone is an opioid. In his report, Dr Nespolon referred to the Australian Medicines Handbook, which says that opioids should be reserved for pain which is unresponsive to optimised non-drug and non-opioid treatments.
Dr Nespolon, in his report, in response to the question of whether Dr Ruff conducted an appropriate assessment of Patient A prior to the prescribing of drugs, noted that Patient A had a lumbar spine problem, but that the use of opioids for acute pain should be done in a planned way which involves ongoing review. Dr Nespolon said that the prescribing of Oxycodone (i.e. Oxycontin and Endone) should be viewed in the context of it occurring at the same time that Dr Ruff was prescribing to Patient A large amounts of Codeine, as well as regular morphine injections. In Dr Nespolon's opinion, there was little evidence that Patient A was being reviewed by Dr Ruff "in a meaningful way" with respect to the prescribing of Oxycodone.
Dr Nespolon said, in his report: The endone/oxycodone was prescribed for analgesia. The long term use of oxycodone is not indicated. Given the brevity of the clinical notes it is not always clear that the oxycodone was indicated for [Patient A].
Schedule A to the complaint records that, within the period of 7 January 2004 to 15 December 2015, Dr Ruff first prescribed Oxycodone to Patient A on 17 March 2010, and last prescribed it on 14 December 2015.
Dr Nespolon said that within that period of 2098 days, 2444 tablets of Oxycodone were prescribed. Dr Nespolon said that it was unlikely that Patient A was continuously dependent upon Oxycodone, despite, at times, frequent prescriptions. However, he noted that Patient A was addicted to Panadeine Forte and Diazepam.
We note from Schedule A that the prescribing of Oxycodone at times seemed to happen in episodes over months, followed by a pause. For example, between 17 March 2010 and 14 May 2010, Dr Ruff issued to Patient A 11 prescriptions of Oxycodone, 5mg, 20 tablets. The next prescription was on 19 January 2011. In the last quarter of 2014, Oxycondone was prescribed relatively infrequently. However, in 2015, Dr Ruff prescribed Oxycodone frequently throughout the whole year. From 15 January 2015 to 14 December 2015, Dr Ruff prescribed Oxycodone to Patient A 79 times.
Particular two of complaint one is as follows: 2. The practitioner inappropriately prescribed the schedule 4D drugs, Panadeine Forte, Diazepam and Temazepam to Patient A on the dates and in the quantities set out in the schedule attached and marked A: a. without performing an appropriate medical assessment prior to issuing the prescriptions; b. without clinical indication; c. without making appropriate and timely referrals for specialist assistance; d. for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to clause 34 of the PTGR; e. without responding appropriately to Patient A's drug seeking behaviour; f. without taking adequate steps to monitor and prevent Patient A stockpiling the drugs; g. in an inappropriate combination.
In her Reply, Dr Ruff admitted each and every element of particular two of complaint one.
We note that Panadeine Forte is, in fact, a schedule 4 drug, but we will treat that as an inadvertent error in particular two, and in the other particulars of complaint one in which the same error is made, and further treat that error as having been amended in each of those particulars.
The Poisons and Therapeutic Goods Regulation 2008 provides, in reg 34: 34 Quantity and purpose of prescriptions to be appropriate An authorised practitioner must not issue a prescription for a restricted substance in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. Maximum penalty - 20 penalty units or imprisonment for 6 months, or both.
In admitting sub-particular 2(d) of complaint one, Dr Ruff admitted contravening reg 34 of the Poisons and Therapeutic Goods Regulation 2008.
In her statement, Patient D said that, as a teenager, she would go to see Dr Ruff once or twice per week with Patient A. Patient D said: 11. I clicked on to what was happening when I was a teenager. At the times I was in an appointment with mum, she would ask Dr Ruff "for the usual". I would often sit in on these consultations.
Patient D turned 13 in 2003, so much of her evidence relates to the time frame of complaint one.
In his statement, Patient E said: 5. The family used to visit Dr Ruff regularly when I was a kid. We would go about 3 times a week. We never had a normal doctor's visit. Mum would just tell Dr Ruff what to write out. 6. I would often wait in the waiting room sometimes I would go in with her. Mum would just go 'my usual' and Dr Ruff then just wrote out the prescriptions for drugs. It was Panadeine Forte, Temaze and Valium, I think.
In considering Patient E's evidence, we bear in mind that he turned 15 in 2004, so that when he refers to events which occurred when he 'was a kid', we assume that those events pre-date the period of the complaint and we do not take them into account as proof of the complaint, but only for context. Patient E, in his statement, says that he stopped going to Dr Ruff's at the age of 16.
In his report, Dr Nespolon noted that almost every consultation by Dr Ruff with Patient A resulted in a prescription for Panadeine Forte. Dr Nespolon referred to the product information given with Panadeine Forte, Diazepam and Temazepam.
In cross-examination, Dr Ruff denied providing prescriptions to Patient A as a matter of routine, or in response to a request for "the usual" or "my usual". Dr Ruff's evidence is at odds with the statements of Patients D and E which were tendered as evidence of truth with Dr Ruff's consent. Patient D and E's evidence on this issue is consistent with the prescription and dispensing records, in that a significant number of the very frequent consultations resulted in Dr Ruff prescribing Panadeine Forte, Temazepam and Diazepam. We find that, in many of the consultations attended by Patient D and Patient E, Patient A asked Dr Ruff for 'my usual' or 'the usual' and that Dr Ruff provided the prescriptions requested.
The active ingredients of Panadeine Forte are paracetamol and codeine. The product information says that prolonged use of high doses of codeine may produce dependence and that tolerance may result from repeated use. Dr Nespolon's unchallenged opinion was that Patient A was addicted to codeine for at least the period from January 2004 to December 2015.
Dr Nespolon highlighted that: Concurrent use of codeine and other opioid agonists is usually inappropriate as additive CNS [central nervous system] depression, respiratory depressant and hypotensive effects may occur. Narcotic analgesics may decrease gastric emptying and therefore decrease the absorption of paracetamol.
Diazepam is a tranquilliser. The product information for Panadeine Forte says: Tranquillisers, sedatives, hypnotics, General anaesthetics and CNS depressants: Codeine may potentiate the effects of these drugs. Concomitant use of tranquillisers or sedatives may enhance the potential respiratory depressant effects of codeine.
Dr Nespolon said that Panadeine Forte should only be prescribed in the short term for acute medical problems that cause pain. In the 907 consultations between January 2004 and December 2015 between Dr Ruff and Patient A, Dr Ruff prescribed Panadeine Forte 874 times. Dr Nespolon noted that Patient A was examined in only about three of those consultations, and that Dr Ruff's notes generally contained either no diagnosis or a very short description of the presenting symptoms.
The product information for Diazepam says that it is for use for the short term relief of the symptoms of anxiety. Dr Nespolon highlighted that anxiety associated with the stress of everyday life does not generally require treatment with Diazepam. Diazepam is a type of benzodiazepine.
Dr Nespolon highlighted the following from the product information for diazepam: In general, benzodiazepines should be prescribed for short periods only (eg 2-4 weeks). Continuous long term use of diazepam is not recommended. There is evidence that tolerance develops to the sedative effects of benzodiazepines. After as little as one week of therapy, withdrawal symptoms can appear following the cessation of recommended doses.
From his reading of the prescribing schedules, Dr Nespolon said that Dr Ruff prescribed a benzodiazepine to Patient A on 848 of the 907 consultations between January 2004 and December 2015.
Apart from some short breaks, Dr Ruff prescribed Temazapam to Patient A almost as frequently as Diazepam between January 2004 and December 2010; that is to say, frequently more than once per week. Temazapam, like Diazepam, is a benzodiazepine. The frequency of prescribing occurred notwithstanding that the dose was one tablet before bed as needed and each prescription was for 25 tablets.
Dr Nespolon provided the product information for Temazepam, or Temtabs. He highlighted the following: Caution must be exercised in administering TEMTABS to individuals known to be addiction prone or those whose history suggests they may increase the dosage on their own initiative. It is desirable to limit repeat prescription without adequate medical supervision.
The product information for Temazepam also warned of the potential for patients to abuse the drug and the danger of tolerance to sedation developing, especially in patients with drug seeking behaviour.
Dr Nespolon noted that Dr Ruff rarely assessed whether Patient A was suffering from insomnia when she prescribed Temazapam together with Panadeine Forte and Diazepam. Dr Nespolon said that Dr Ruff's monitoring of the use of the medication by Patient A was poor.
In Dr Nespolon's opinion, the Panadeine Forte, Diazepam and Temazepam were rarely prescribed for a therapeutic purpose. The frequency and quantity of the prescribing were not for a therapeutic purpose either.
Dr Nespolon noted that Dr Ruff apparently made no effort to prevent Patient A from stockpiling the medication.
Dr Nespolon said that, on average, Dr Ruff prescribed to Patient A an average of 4.4 Panadeine Forte tablets per day, being a prescription, on average, every 4.55 days, and an average of one prescription of 50 tablets every 4.89 days of Diazepam.
Particular three of complaint one is as follows: The practitioner inappropriately prescribed the schedule 4 drug Janumet, in Patient A's name on the dates and in the quantities set out in the schedule attached and marked A, in circumstances where: a. she intended the drug to be taken by Patient B who suffered from diabetes; b. Janumet is clinically indicated for the treatment of diabetes: c. Patient A did not suffer from diabetes.
In her Reply, Dr Ruff admitted each and every element of particular three of complaint one.
Patient B, in his statement, said that he was diagnosed with diabetes in 2009. He said: I remember after I was diagnosed [Patient A] got my diabetes medication in her name. It was cheaper on Medicare that way and the doctor was OK with it. That is the only medication I have ever taken.
Dr Nespolon noted that there are no medical notes regarding the commencement of Janumet and the change to a higher dose on 13 August 2012. Further, there are no medical notes assessing the progress of the diabetes. Dr Nespolon was concerned at the potential for Patient A to take the Janumet, given that it was prescribed in her name. Dr Nespolon said, in his report: The only reason that I can see why Dr Ruff would prescribe this medication to [Patient A] was so that she could obtain the PBS concession rate that her husband may not have been able to access.
Particular four of complaint one is as follows: From around March 2004 to September 2015 the practitioner inappropriately administered the schedule 8 drug, Morphine, to Patient A on around a monthly basis in circumstances where: a. Morphine is indicated for severe pain only; b. Patient A was being prescribed large quantities of codeine over the same period; c. without obtaining an authority to prescribed a Type 2 drug of addiction contrary to section 28(2) of the PTGA, in circumstances where the period of supply exceeded 2 months.
In her Reply, Dr Ruff admitted each and every element of particular four of complaint one.
Section 28(2) of the Poisons and Therapeutic Goods Act 1966 is set out above at [30]. Dr Ruff has admitted contravening s 28(2) in the context of the administering by her of an injection of morphine to Patient A on approximately a monthly basis from March 2004 to September 2015.
The records show that Dr Ruff administered morphine by injection to Patient A on 116 occasions from 8 March 2004 to 17 August 2015. The longest interval between injections was 108 days, and the shortest interval between injections was 2 days.
In his report, Dr Nespolon said: The patient had about one injection of morphine each month from 2004. There were times when the injections were more frequent and other times when the injections were less frequent. The morphine was prescribed for either "morphine" or "back pain". This looked like a program of monthly injections and was underlined by the comment on 7/4/2008 where Dr Ruff notes "will miss next month". Morphine is only indicated when there is severe pain. The concerns of prescribing morphine in this way is exacerbated by the large amount of Codeine that [Patient A] was consuming, and the lack of monitoring of her actual codeine consumption.
We find particulars 1, 2, 3 and 4 of complaint one proven.
Particular 5 of complaint one is as follows: PATIENT B 5. The practitioner inappropriately prescribed the schedule 4D drug Panadeine Forte, in Patient B's name on the dates and in the quantities set out in the schedule attached and marked B: a) in circumstances where she knew or ought to have known that the drugs were being diverted to Patient A; b) in circumstances where Patient A was in the treatment room and purporting to direct the treatment of Patient B; c) without performing an appropriate medical assessment of Patient B prior to issuing the prescriptions; d) for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to clause 34 of the PTGR; e) in circumstances where high doses of paracetamol were contraindicated for Patient B as he suffered from haemochromatosis and may have had Hepatitis C; f) without appropriate and timely referrals of Patient B for specialist assistance.
In her Reply, Dr Ruff admitted sub-particulars (b) to (f). In relation to sub-particular (a), Dr Ruff said, in her Reply: a) I admit that I ought to have known that the drugs were being diverted to Patient A, however I do not admit that I knew that the drugs were being diverted to Patient A.
In his statement, Patient B said: 12. I have never asked for or have been prescribed painkillers by any doctor including Dr Ruff. Not even once or twice. I have never taken Panadeine Forte.
We find that the Panadeine Forte prescribed to Patient B was diverted to Patient A, and not taken by Patient B. Patient B was not required for cross-examination.
In evidence, Dr Ruff said that the prescriptions she issued for the family members of Patient A were given to Patient A at the end of the consultation, in the presence of Dr Ruff, which is why Dr Ruff admitted that she ought to have known that the drugs prescribed were being diverted to Patient A.
It was argued on behalf of the HCCC that Dr Ruff actually knew that the Panadeine Forte prescribed for Patient B was diverted to Patient A. It was put to Dr Ruff that on many occasions upon which she prescribed Panadeine Forte to Patient B, she did not see him, but only had a consultation with Patient A. Dr Ruff denied this.
Although there are grounds for suspicion that many of the prescriptions for Panadeine Forte written by Dr Ruff for Patient B were written in consultations solely with Patient A, and although there are grounds for suspicion that Dr Ruff actually knew that the Panadeine Forte she was prescribing for Patient B was not needed or wanted by him, that does not amount to proof on the balance of probabilities that Dr Ruff specifically knew that Patient A would take the Panadeine Forte, or that the consultations were with Patient A only.
We are not able to find that Dr Ruff actually knew that the Panadeine Forte she was prescribing in Patient B's name would be diverted to Patient A.
In his report, Dr Nespolon noted that there was effectively no assessment of Patient B by Dr Ruff on each occasion upon which Panadeine Forte was prescribed to him. Dr Nespolon identified 44 occasions in 2013-2015 on which Dr Ruff prescribed Panadeine Forte to Patient B without making a clinical note.
Particular 6 of complaint one is as follows: PATIENT C 6. The practitioner inappropriately prescribed the schedule 4D drug Panadeine Forte In Patient C's name on the dates and in the quantities set out in the schedule attached and marked C: a) in circumstances where she knew or ought to have known that the drugs were being diverted to Patient A; b) in circumstances where Patient A was in the treatment room and purporting to direct the treatment of Patient C; c) without performing an appropriate medical assessment of Patient C prior to issuing the prescriptions; d) for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to clause 34 of the PTGR.
Dr Ruff, in her Reply, admitted sub-particulars (b), (c) and (d). As to sub-particular (a), Dr Ruff said: I admit that I ought to have known that the drugs were being diverted to Patient A, however I do not admit that I knew that the drugs were being diverted to Patient A.
In evidence, Dr Ruff said that she ought to have known that the drugs were being diverted to Patient A because Patient A took control of the prescriptions. Dr Ruff said that Patient C always came with his mother, Patient A, and sometimes other family members. Dr Ruff said that this was so even though, in 2013, Patient C turned 30 years old.
No direct evidence was provided from Patient C. Dr Ruff denied the proposition that Patient C was not, in fact, present at the consultations at which she issued prescriptions in his name in 2012 and 2013. She claimed that it was her practice to open Patient A's records on her computer and then immediately afterwards, open Patient C's records, which explained why they were opened within a couple of minutes of each other. She said that, nonetheless, she consulted with each of them.
The state of the evidence does not prove on the balance of probabilities that Dr Ruff had actual knowledge that the drugs she prescribed for Patient C were to being diverted to Patient A.
It is clear, and it is admitted, that the drugs prescribed to Patient C were for an inappropriate therapeutic purpose and prescribed in inappropriate quantities.
In his report, Dr Nespolon identified 11 occasions in 2012-2013 upon which Dr Ruff prescribed Panadeine Forte for Patient C and did not make clinical notes
Particular 7 of complaint one is as follows: PATIENT D 7. The practitioner inappropriately prescribed the schedule 4D drugs Panadeine Forte, Diazepam and Temazepam, in Patient D's name on the dates and in the quantities set out in the schedule attached and marked D: a) in circumstances where she knew or ought to have known that the drugs were being diverted to Patient A; b) in circumstances where Patient A was in the treatment room and purporting to direct the treatment of Patient D; c) without performing an appropriate medical assessment of Patient D prior to issuing the prescriptions d) for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to clause 34 of the PTGR; e) in circumstances where Patient D was too young to have been prescribed those drugs; f) without making appropriate and timely referrals to a gynaecologist for management of Patient D's dysmenorrhea. g) without utilising appropriate non-pharmacological approaches to Patient D's pain.
In her Reply, Dr Ruff admitted the allegations in sub-paragraphs (b) to (g). Her response to sub-particular 7(a) was the same as her response to the equivalent sub-particular in particular 5 and 6.
Patient D is a daughter of Patient A. Patient D was born in 1990.
In his report, in relation to Patient D, Dr Nespolon noted that Dr Ruff's records said that on 12 February 2004, when she was 13 years old, Dr Ruff prescribed Patient D Temazepam for "insomnia" as she was having "difficulty sleeping, fever persists". Patient D was prescribed Temazepam again by Dr Ruff on 23 March 2010 for 'insomnia', and once more on 8 November 2010 without any diagnosis or prescription.
Dr Ruff prescribed Diazepam for Patient D on 1 February 2006 (50 tablets, 5mg, dose 1 tablet as needed) for 'Anxiety - generalised'. On 13 February 2006, Dr Ruff issued a further prescription for Patient D for Diazepam, again for 50 tablets, 5mg, 1 tablet as needed, for 'upset following prison visit'. Dr Nespolon points out in his report that that is 100 tablets in two weeks, prescribed to a 15 year old. There was a further prescription of diazepam to Patient D by Dr Ruff on 6 June 2007 for 'depressed and suicidal discussion'
In his report, Dr Nespolon said that Dr Ruff prescribed Panadeine Forte to Patient D on 26 July 2004 (20 tablets, dosage 1-2 every 4 hours), when Patient D was 13 years old, noting only 'pain' in the notes. No history, examination or diagnosis was recorded. Dr Ruff prescribed Panadeine Forte to Patient D again 3 days later, on 29 July 2004, with the same quantity and dosage, with no history, examination or diagnosis recorded. On 13 August 2004, Dr Ruff prescribed Panadeine Forte to Patient D again, noting only "effective for period pain".
There were a further 185 occasions upon which Dr Ruff prescribed Panadeine Forte to Patient D from 2004, when Patient D was 14 years old, to February 2015, without any clinical note. There were further prescriptions in 2005, 2006, 2007, 2008, 2011, 2012 and 2014 with various reasons given in the notes.
Patient D provided a statement, which was tendered in evidence. Mr Hutchings, counsel for Dr Ruff, said that Patient D was not required for cross-examination. As we have said, throughout the hearing, the Tribunal repeatedly told Mr Hutchings that the consequence of allowing the tender of a statement of evidence without requiring the deponent for cross-examination would be that the truth of the statement would be accepted by the Tribunal.
In her statement, Patient D said: 5. Dr Ruff was our family GP. I visited Dr Ruff along with my mum and my siblings regularly all through my childhood. 6. I remember visiting Dr Ruff for as long as I can remember. I would have started going with mum when I was an infant right up until I was a late teenager in 2007/2008. 7. As I was the youngest I didn't really know what was going until I was older. A visit to the doctor was just normal routine for us. It was our family outing. We would get lunch if we went. There was never any food in the house so we went with mum for a trip to the doctors otherwise we wouldn't get fed. 8. It was the routine maybe once a week when I got older as a teenager it was more frequent maybe twice a week usually on a Monday and a Friday. 9. Sometimes we would go in to the appointment depending on whether mum was wanting to play at being a good person. Sometimes she tried to pretend to be a good mother to Dr Ruff. 10. If we didn't go into the appointment we would just wait in the reception area. Often the receptionist send us to the bakery. That was at the first practice in Ingleburn. 11. I clicked on to what was happening when I was a teenager. At the times I was in an appointment with mum, she would ask Dr Ruff "for the usual". I would often sit in on these consultations. 12. Mum would then go straight to the chemist and take the drugs. Sometimes she would get an injection at the doctors. 13. 1 didn't think this was wrong at the time because Dr Ruff was a doctor and it must have been OK. 14. I don't believe I had any medical conditions at all as a teenager. ! had a cist on my hand once which Dr Ruff removed. I did also have an issue with my wisdom teeth recently in 2015. I got them taken out in 2 procedures. 15. I may have taken Panadeine Forte maybe one or two times in my life This would have been when I had the tooth problem that would've been twice a few months apart in 2015. 16. Other than this I have never taken or been prescribed Panadeine Forte. 17. lt would not surprise me if my mum was getting medication in my name. I remember seeing a doctors letter which had other medication on it I was not taking. 18. I do not remember ever speaking to Dr Ruff about period pains as a teenager. I never had any painful periods as a teenager. I was a very late developer and I only got my first period just before I was 18 years old. This was just before I fell pregnant. About twice a year I get uncomfortable sore breasts during periods but no period pains. 19. I have never had a bike accident. 20. I did rebel as a teenager. I lived at friend's house for a while. I smoked cigarettes and marijuana. I wasn't addicted to them. I never discussed these issues with Dr Ruff. 21. I have never discussed issues such as stress or anxiety with Dr Ruff. I have never been prescribed medication such as diazepam or temazepam. I have never discussed any boyfriend issues with Dr Ruff. I did not request or receive any medication for anxiety relating to relationship problems or my brother being sent to prison.
Based upon the statement of Patient D, we find that the prescriptions written by Dr Ruff for Patient D for Temazepam and Diazepam did not result from anything said by Patient D to Dr Ruff. Dr Ruff wrote them at the request of Patient A.
We also find that all of the prescriptions issued by Dr Ruff in the name of Patient D for Panadeine Forte, except for those specifically attributed to the removal of wisdom teeth on 16 December 2013, were not issued as a result of anything said by Patient D to Dr Ruff, but were issued at the request of Patient A.
Our conclusion is that either Dr Ruff actually knew that the prescriptions she was writing for Temazepam and Diazepam, and almost all of the prescriptions she was writing for Panadeine Forte were not for Patient D, but were being diverted to Patient A, or that Dr Ruff, for many years, simply gave Patient A the prescriptions that Patient A requested, without directing her mind to the ultimate recipient of the drugs. We are unable to find, on the balance of probabilities, what Dr Ruff's state of mind was, beyond her admission.
In any event, Dr Ruff has admitted that she ought to have known that the drugs were being diverted to Patient A, so the complaint is made out. We will consider particular 7 of complaint one as having been proved on the basis admitted by Dr Ruff.
Particular 8 of Complaint One is as follows: PATIENT E 8 The practitioner inappropriately prescribed the schedule 4D drug Panadeine Forte, in Patient E's name on the dates and in the quantities set out in the schedule attached and marked E: a) in circumstances where she knew or ought to have known that the drugs were being diverted to Patient A; b) in circumstances where Patient A was in the treatment room and purporting to direct the treatment of Patient E; c) without performing an appropriate medical assessment of Patient E prior to issuing the prescriptions; d) for an inappropriate therapeutic purpose and in an inappropriate quantity contrary to clause 34 of the PTGR; e) without adequate regard to Patient E's age; f) without making appropriate and timely referrals of Patient E for specialist assistance.
Dr Ruff, in her Reply, admitted sub-particulars (b) to (f), and replied to sub-particular (a) in the same was as she did to the equivalent sub-particular in particulars 5, 6 and 7.
The period of the prescribing to Patient E by Dr Ruff was from 2 February 2004 to 11 December 2013. During that period, Dr Ruff prescribed Panadeine Forte to Patient E on 63 occasions.
Patient E is a son of Patient A. In 2004, he was 14 years old. Patient E is about one year older than Patient D.
Patient E gave a written statement to the Tribunal and was not required for cross examination by the respondent. As with all the statements, the counsel for the respondent was warned that the indication that had been given that the deponents were not required for cross examination meant that the Tribunal would treat the statements as unchallenged fact. We accept the evidence of Patient E.
Patient E said, in his statement: 4. Dr Ruff was our family GP. She was the only doctor I ever saw as child. 5. The family used to visit Dr Ruff regularly when I was a kid. We would go about 3 times a week. We never had a normal doctor's visit. Mum would just tell Dr Ruff what to write out. 6. I would often wait in the waiting room sometimes I would go in with her. Mum would just go "my usual" and Dr Ruff then just wrote out the prescriptions for drugs. It was Panadeine forte, Temaze and Valium I think. 7. Mum would go straight to the chemist. She would take the pills immediately. I can remember the sound of her emptying bottles of pills she could take so many. 8. Mum also got strong injections once a month. 9. I didn't realise at the time what was going on. I know now that she was getting all the medications for herself. If I was in with mum and Dr Ruff, mum would say that I was having migraines. I would just nod my head in agreement. I think she did the same with [Patient D] and [Patient B]. 10. I do remember having conversations with Dr Ruff about the medications. I think she may have referred me to a neurologist. I never went to any neurologist though. 11. I did get bad migraines as a child but I haven't had one for about 10 years. I took migraine sticks for these you woufd rub them on your tongue. 12. I do not remember ever faking Panadeine Forte. I do not remember ever asking for Panadeine Forte. 13. After I turned 16 I didn't have to go the doctors any more so I didn't go. 14. I am aware that mum continued getting scripts in my name after I was 16. This was when I got in trouble with the police and appeared in court. The matter came up on my Psychiatric Report. The judge looked at me and asked me if I had been addicted to painkillers since I was a child. 15. I was sent to jail for 23 months. I handed myself to the police in 27/7/13 and released on 3/6/15. I have not seen Dr Ruff since about 2011. 16. I hated my childhood. My mum was always falling over or nodding off. it was really embarrassing for us. The house was always dirty and there was never any food to eat. I wouldn't want that to happen to anybody else. 17. I remember my dad and older brother speaking to Dr Ruff at some stage. They told her she had to stop giving mum all of these pills or they would report her. They never did and mum kept on taking them. 18. Mum kept on taking them up until a suicide attempt in 2015. When I was growing up she was like a zombie. She is 100% better now, she is clean of these drugs.
Dr Nespolon, in his report, said that there was not enough clinical information in Dr Ruff's notes to elucidate why Patient E was given Panadeine Forte.
Patient E was incarcerated from 27 July 2013 to 3 June 2015. However, Dr Ruff prescribed Panadeine Forte in his name on 25 November 2013 and 11 December 2013. In evidence, Dr Ruff insisted that Patient E was present in her surgery on both 25 November 2013 and 11 December 2013. Her computer records show that on each of those dates she opened Patient E's file within a few minutes of opening Patient A's file.
Clearly, Patient E was not in Dr Ruff's surgery on 25 November 2013 or 11 December 2013. On those two days, Dr Ruff prescribed Panadeine Forte to Patient E, at Patient A's request, without seeing Patient E. Dr Ruff either knew that the drugs would be diverted to Patient A, or did not direct her mind to the question of who the ultimate recipient of the drugs would be. Again, we are unable to find, on the balance of probabilities, that Dr Ruff knew that the drugs would be diverted to Patient A.
In any event, particular 8 has been made out.

Complaint Two - Patient F

Complaint two is as follows: The practitioner is guilty of unsatisfactory professional conduct under section 139(1)(a) and/or (l) of the National Law in that the practitioner has: iii. 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; and/or iv engaged in improper or unethical conduct relating to the practice or purported practice of profession [sic] Each of the particulars of this Complaint in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. PARTICULARS OF COMPLAINT TWO PATIENT F 1. Between 10 April 2007 to 22 July 2016 the practitioner inappropriately prescribed the schedule 4D drug Duromine to Patient F without performing an appropriate medical assessment prior to issuing the prescriptions, including: a) failing to take a detailed history when Patient F first presented; b) failing to perform a thorough physical examination including recording Patient F's weight; c) failing to obtain Patient F's medical records from her previous treating practitioner; d) failing to review the prescribing when Patient F was diagnosed with Bipolar disorder in February 2013. 2. Between 10 April 2007 to 22 July 2016 the practitioner inappropriately prescribed the schedule 4D drug Duromine to Patient F in circumstances where Duromine is clinically indicated for weight loss and: a. Patient F had previously been prescribed Duromine for weight management; b. Patient F had a history of anorexia; c. Patient F had a history of psychiatric illness including significant depression; d. She failed to monitor the impact of long term use of Duromine on Patient F's weight. 3. Between 10 April 2007 to 22 July 2016 the practitioner provided inadequate care and treatment to Patient F by prescribing Duromine for the purpose of improving Patient F's mental health in circumstances where: a. Patient F specifically requested Duromine by name and stated that she'd previously been prescribed Duromine; b. she relied on the recommendation of Patient F's counsellors, who were not appropriately qualified, to justify continuing to prescribe Duromine; c. it was not supported by clinical evidence or research about the long term use of Duromine in the management of mental health; d. without seeking or obtaining the support of specialist psychiatric or mental health services for the ongoing prescribing to patient F. 4. On 8 January 2014 the practitioner inappropriately commenced prescribing the schedule 4 drug, Quetiapine, to Patient F, in circumstances where; a. she failed to obtain clinical records from Patient F's treating mental health team to confirm the diagnosis of Bipolar disorder; b. she failed to obtain and record a detailed psychiatric history. 5. Between 7 January 2014 and 28 July 2017 the practitioner prescribed a dose and quantity of the schedule 4 drug, Quetiapine to Patient F which did not accord with therapeutic standards for the treatment of Bipolar disorder, contrary to clause 34 of the PTGR.
Dr Ruff admitted the whole of complaint two.
Patient F complained to the HCCC by email dated 9 October 2018. Her complaint, in so far as it is relevant to complaint two, is summarised in [19] above.
In her statement, Patient F said that her life and her mental health collapsed during the time that she was a patient of Dr Ruff.
She said that since she stopped consulting Dr Ruff, no-one else has prescribed Duromine for her. She said that she has now been referred to a number of organisations which have assisted her with her mental health issues, and commented that Dr Ruff did not refer or introduce her to any of those services.
Dr Nespolon provided a report in relation to Patient F, dated August 2019. As we have said, above, Dr Nespolon was not required by counsel for the respondent for cross-examination, and we accept his unchallenged evidence.
Dr Nespolon provided the product information for Duromine, the drug the subject of complaint two.
Under the heading 'Therapeutic Indications', the product information for Duromine says: Duromine is an anorectic agent indicated in the management of obesity as a short-term adjunct in a medically monitored comprehensive regime of weight reduction based, for example, on exercise, diet (caloric/kilojoule restriction) and behaviour modification in obese patients with a body mass index (BMI) of 30kg/m² or greater. The treatment with Duromine can be initiated in overweight patients with a lower BMT (25 to 29.9 kg/m²), which increases the risk of morbidity from a number of disorders. Secondary organic causes of obesity should be excluded by diagnosis before prescribing this agent.
The product information also says, among other things, under 'Dose and Method of Administration': Patients require medical review after a defined course of treatment, which should not exceed three months.
Under the heading 'Use with Caution in the Following Circumstances', among other things, the product information says: Duromine should be used with caution in patients receiving psychotropic drugs, including sedatives and agents with sympathomimetic activity.
Dr Nespolon said, in his report, that Duromine is not physically addictive.
Dr Nespolon notes that Dr Ruff did not, at any stage, record Patient F's weight. However, there is evidence in Patient F's medical records that she was, at material times, 'extremely thin' and had a Body Mass Index just below the normal range.
Dr Nespolon said that Dr Ruff was prescribing Duromine to Patient F for an off-label reason, namely for the management of her mental health. Patient F told Dr Ruff that Duromine helped her to concentrate and control her thoughts. Dr Nespolon said that, assuming that Patient F confined her supply to the prescriptions written by Dr Ruff, then the quantities indicate that she was taking Duromine on an intermittent basis.
Dr Ruff did refer Patient F to a psychologist at one point, but, as Dr Nespolon said in his report, advice on medication was outside of the psychologist's scope of practice. Dr Ruff relied, in part, on the advice of Patient F's 'counsellors' to continue prescribing Duromine. Dr Nespolon, in his report, pointed out that this is beyond the scope of practice of a counsellor. Patient F was referred to a psychiatrist at one point, but not for a medication review.
Dr Ruff began prescribing Quetiapine to Patient F on 8 January 2014.
Dr Nespolon, in his report, provided the product information for Quetiapine, sold under the brand name Seroquel XR. It is indicated for use to treat Bipolar disorder, Schizophrenia, Major depressive disorder and generalised anxiety disorder. The product information says, in relation to the use of Quetiapine for Bipolar disorder: Maintenance Treatment Patients who have responded to SEROQUEL XR for acute treatment of bipolar disorder should continue therapy at the same dose. It is generally recommended that responding patients be continued beyond the acute response, but at the lowest possible dose needed to maintain remission. For prevention of relapse/recurrence of manic, depressive and mixed episodes in bipolar disorder, the usual effective dose is within the range of 300 to 800 mg/day (see Section 5.1 Clinical trials). The dose of SEROQUEL XR can be re-adjusted depending on the clinical response and tolerability of the individual patient. Patients should be periodically reassessed to determine the need for maintenance treatment. Bipolar Depression When treating depressive episodes in bipolar disorder, treatment should be initiated either by the treating psychiatrist or by the general practitioner after consultation with the psychiatrist.
Patient F was diagnosed with Bipolar disorder between 6 September 2012 and 8 February 2013. Dr Ruff prescribed Quetiapine 25mg on 8 January 2014 without being in possession of any discharge summaries or specialist letters with respect to Patient F. There is no record of Dr Ruff contacting the relevant mental health services facility to obtain information about the diagnosis. There is no record as to what Dr Ruff thought was the medical indication for beginning the drug. Dr Nespolon said that Dr Ruff should either have contacted the relevant psychiatric service or she should have taken a detailed psychiatric history from Patient F.
Dr Ruff increased the dose of Quetiapine to 50mg on 3 March 2016. Her only note as to the reason for the increase said "urinary frequency+++with anxiety", which Dr Nespolon said was insufficient.
Regulation 34 of the Poisons and Therapeutic Goods Regulations 2008 is set out above at [51]. Dr Ruff, in her Reply, admits particular 5 of complaint two.
Dr Nespolon said that Dr Ruff should have reviewed the prescribing of Duromine for Patient F at the time of her diagnosis with Bipolar disorder.

Complaint Three

Complaint three is as follows: is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened the Health Practitioner Regulation (New South Wales) Regulation 2010 PARTICULARS OF COMPLAINT THREE 1. The practitioner failed to maintain adequate medical records in accordance with Schedule 2 to the Health Practitioner Regulation (NSW) Regulation 2010 for each of Patients A to F in that the practitioner failed to adequately record: a. information known to the practitioner relevant to her diagnoses and treatment of patients including sufficient detail of: i. the patients' medical history; ii. the results of any physical examinations of the patient; iii. use of any diagnostic tools; iv. the results of any tests performed on the patient; b. particulars of any clinical opinion reached by the practitioner; c. any plan of treatment for the patient; d. particulars of any medication prescribed; and e. sufficient information to allow another doctor to continue management of the patient's case.
In her Reply, Dr Ruff admitted the whole of Complaint Three.
The Health Practitioner Regulation (NSW) Regulation 2010 was applicable during the period referred to in the complaint. Schedule 2 of those Regulations was entitled 'Records kept by medical practitioners and medical corporations in relation to patients' and provided, among other things: 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following: (a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to medical treatment (including any medical or surgical procedure) proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient.
Dr Nespolon, in his report of May 2018, said that a doctor's records should be such that another GP, nurse or other staff member who provides clinical care could read and understand the notes and be equipped to manage the care of the patient. The routine recording of a patient's height, weight and blood pressure assists, in the case of a patient who is a child, in assessing growth and being alerted to failure to thrive or other indicators of disease.
Clearly, the keeping of records assists a doctor in identifying a pattern of change in an adult patient which could indicate an underlying medical problem as well.
On many occasions with respect to her treatment of Patient A and her family, and in relation to Patient F, Dr Ruff's notes were grossly inadequate. Sometimes, Dr Ruff did not make a note at all. Dr Ruff freely admitted in cross-examination that her notes were inadequate.
One consequence of the inadequacy or absence of notes in the medical records with respect to the patients the subject of this matter is that it is very difficult or impossible to ascertain what occurred between Dr Ruff and her patient during many of the consultations. As a consequence, we are left with records which indisputably show that quantities of Panadeine Forte and benzodiazepines well in excess of what a single patient could need, and well in excess of what was required for the dosages prescribed, were being provided by Dr Ruff to Patient A with no explanation.
Dr Nespolon, in his report of May 2018, at p 27, said the following: Did [Patient A] exhibit any drug seeking behaviours? If so, did Dr Ruff respond appropriately to this behavior? Dr Ruff should have been altered to potential abuse problems on 11 February 2004 "script for husbands leg injury", 1 March 2004 "Last script torn up", 3 March 2004 Threw last tabs away, 11 June 2004 "washed prescription", 19 August 2004 "Lost script did not fill", 2 March 2005 "Car broken into and tabs stolen", 28 October 2005 "Lost script", 30 November 2005 "Bottle thrown out in argument", 1 March 2006 "Tablets stolen from house along with Baclofen...", 3 April 2006 "Continuing theft from house", 30 August 2006 "Lost scripts", 28 February 2007 "Scripts gone missing", 12 October 2007 "Scripts thrown out by mistake", 18 April 2008 "Threw out last prescription with shopping by mistake", After 1 May 2008 "Left purse at the station", 6 June 2008 "Lost prescription", 11 July 2008 "Lost script from Monday", 20 February 2009 "Lost tabs", 4 May 2009 "script taken away when visiting goal", 18 August 2009 "Lost prescription", 11 March 2010 "Daughter cleaned house and through out all the scripts", 25 June 2010 "Lost prescription", 8 July 2010 "Tablets from 5/7 destroyed by dog", 12 October 2010 "gave tabs to daughter", 22 March 2012 "Tablets thrown out by husband", 5 September 2012 "Threw out tabs by mistake", 21 November 2012 "dog chewed up tablets and became angry chased dog and fell into hole...", 31 May 2013 "Dog bit through packet tabs", 25 November 2013 "finds that generic apo-diazepam crumbles when comes out of packet", 4 June 2014 "Tablets taken and thrown out by husband yesterday", 10 July 2015 "Scripts given to daughter to fill and told lost". While patient's like [Patient A] often do live disorganised lives, and a few of these excuses may have actually occurred, this is classic behaviour from patients inappropriately seeking medication. Dr Ruff should have developed 'rules' around these circumstances - namely, if a prescription is lost for any reason, it will not be replaced. Dr Ruff's conduct fell below the standard reasonably expected of a practitioner of her level of training and experience. This departure from the standard was significantly below and does invite strong criticism.

In cross examination, Dr Ruff was being questioned about the issue of Patient A stockpiling the medication. Dr Ruff was referred to a statement she had made in writing to the effect that Patient A would tell her that Patient A did not intend to take the medication but was requesting that it be prescribed nonetheless. The following exchange took place [transcript p 30 line 23]: Q: Telling you that she's not taking the medication, but you're issuing a prescription to her, aren't you? A: Yes, because she, she would tell me that she needed the prescription so otherwise that to, to show to, to prove to her family that she needed to come to the surgery and that also she, she would tell me that she would be abused if she did not have her prescription.
Later in her cross-examination, Dr Ruff indicated that she did not know at the time that Patient A's excuses for requesting so much medication were excuses for 'her drug dependency desires', but indicated that she should have known at the time.

Complaint Four

Complaint four is as follows: The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or engaged in 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 the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT FOUR 1. Each particular of Complaints One and Two justifies a finding of professional misconduct. In the alternative, when two or more of the particulars of Complaints One, Two and/or Three are taken together, a finding of professional misconduct is justified.
In her Reply, Dr Ruff does not admit that she is guilty of professional misconduct.
The National Law defines professional misconduct as follow: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
Mr Hutchings argued that, in order to determine that professional misconduct has been committed, it is necessary to find that the practitioner is probably permanently unfit to practice. That is not the test. In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA said, at [20]: 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 judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct.
In our opinion, each of complaints one, two and three alone constitute unprofessional conduct.
Complaint one constitutes unprofessional conduct because of the obvious danger to the health of a patient to whom very large quantities of tranquillizers and Panadeine Forte are being prescribed, together with a regular, on average approximately monthly, injection of morphine and, for a period of time, Oxycodone as well. Patient A overdosed several times in the course of the time that Dr Ruff was her GP, leading up to the December 2015 suicide attempt.
In evidence, Dr Ruff said that she was, from time to time, concerned about Patient A's 'overuse' of drugs. She said that she was concerned about side effects, including that overuse of the drugs can cause a patient to suffer more pain, and can cause problems with drowsiness and cognition. Dr Ruff noted a high incidence of anxiety, depression, hyperalgesia and withdrawal symptoms. [transcript p 21 line 31 to p 22 line 45.]
Notwithstanding these concerns, Dr Ruff continued to prescribe in the manner set out in Schedule A. Dr Ruff did not adequately explain why she continued to prescribe in all the circumstances.
The impact of prescribing addictive drugs to a patient who is obviously drug addicted on the family of that patient is also relevant, especially when the members of that family are patients of the general practitioner in question. QL, in her complaint, set out above, spoke of the impact of her mother's addiction upon her. Patient C, in her statement, said: 24. It was just so normal that mum would just sleep all the time. She was knocked out constantly. It was unbelievable the amount of pills she could take at once. 25. Dr Ruff never contacted DOCS or anyone else. We were clearly being neglected. I don't know why she didn't contact DOCS at the time as surely they would have helped and she might have got rid of mum as a problem. 26. I cannot explain the mental and emotional abuse we suffered. We had no food, no clothes. We never had lunch for school, mum was asleep all the time. There was no hygiene in the house.
Patient E, in his statement, said: 16. I hated my childhood. My mum was always falling over or nodding off. It was really embarrassing for us. The house was always dirty and there was never any food to eat. I wouldn't want that to happen to anybody else. 17. I remember my dad and older brother speaking to Dr Ruff at some stage. They told her she had to stop giving mum all of these pills or they would report her. They never did and mum kept on taking them. 18. Mum kept on taking them until a suicide attempt in 2015. When I was growing up she was like a zombie. She is 100% better now, she is clean of these drugs.
QL, in her statement, said: 10. Sometimes mum would get an injection. I don't know what the injections were but it made her act like she was completely out of it. The injections happened about monthly. 11. Normally mum would just get her prescriptions and visit the chemist straight after seeing Dr Ruff. She would take the pills straightaway not even waiting to get home. She would be unable to communicate after taking them as she just started slurring. 12. From the age of 5 to 15 I remember learning for pills my mum was taking. Mum would often overdose which is why I needed to remember the colours of the pills. The green one was called Temaze. It was a sleepy pill. She also took Panadeine Forte, this was a white pill. She also took Antananx. From the age of 5, I was taught if mum was vomiting or foaming from the mouth you had to put on her on her side and phone for the ambulance. 13. I have made this complaint after my mum attempted suicide by overdose in December 2015. My mum regularly overdosed when I was a child and this was the final straw for me. I realised that it was not all my mum's fault and she had been prescribed these drugs by a medical professional which I think is wrong. 14. On that day I got a call from my sister. My mum had disappeared and we rang around several hospitals. We went to the ICU where she was in a coma. I remember we were given the 'death talk'. The hospital knew she had taken something but didn't know what. 15. I lost it. I got into my car and drove to Dr Ruff's surgery in XXXX. I walked into her practice and was very upset. I shouted and swore at Dr Ruff, which I regret. I said you have put a gun in my mum's hand and have ruined 4 children's lives for over 20 years. 16. I called Dr Ruff names. I shouldn't have acted like that but I was so upset. I said that I wasn't leaving until Dr Ruff wrote down a list of all the drugs she had prescribed mum. She eventually gave me a list which included diabetic medication. My mum is not and has never been diabetic. 17. Later I went to mum's house to see if I could find out what she had taken. I looked in mum's bedroom drawer. There were hundreds of boxes of pills. I don't know what type of pills they were. I was panicking, I was hysterical. I was trying to find out the dates of the pills, Some of the boxes had dad's name on them. Some of the prescriptions were over a year old. 18. My mum came out of the coma after 7 days. She woke up by herself but has severe liver damage. 19. Since the suicide attempt in 2015 mum is now a functioning person. Prior to this, she was not a functioning person for as long as I could remember. Mum was out of it all the time. She would often just wet herself.
We note that QL was 16 years old in 2004, which is the first date cited in the complaint. We rely on her evidence of events before 2004 only for context.
Dr Ruff said that on a number of occasions, throughout the years the subject of complaint one, she tried to get Patient A to stop using the drugs that she was prescribing. However, Dr Ruff did not follow through on her warnings that she would stop prescribing for Patient A.
Before us, Dr Ruff discussed the morphine injections. She said that she did not want to give Patient A morphine injections, but 'she kept asking me for it'.
Before us, when discussing August 2004, Dr Ruff said that she was trying to 'wean' Patient A 'off medication'. However, Patient A overdosed on 6 October 2004, to Dr Ruff's knowledge, and then Dr Ruff injected Patient A with morphine on 10 November 2004.
There was a succession of overdoses which did not have a significant impact upon Dr Ruff's persistent prescribing for Patient A.
Dr Ruff, when asked in cross-examination about these events, repeatedly said that there was a lot going on which was not reflected in her notes. She said repeatedly that it was a complex situation and that her notes do not reflect the complexity. Dr Ruff did not, however, provide an adequate or cogent medical explanation for her prescribing over the course of the period addressed in complaint one.
In her letter to the HCCC of 17 September 2017, Dr Ruff said: [Patient A] was counselled and examined on each occasion that she presented. Consultations were often long, extended and complicated. She was constantly provided with alternative pain management strategies. I appreciate this is not reflected in the notes and as I have stated earlier, I will make sure this is not the case going forward. I can see now from [Patient A's] behaviour that I allowed myself to be manipulated into continuing to prescribe for her. It is difficult to turn away a patient in distress with so many problems and I tried to find her help in many different ways.
Dr Ruff's gross overprescribing to Patient A and her family seem to arise from Dr Ruff's will effectively being overborne by Patient A in the sense that Dr Ruff complied with Patient A's requests for prescriptions against Dr Ruff's better judgment.
There is nothing before us which gives any indication that Dr Ruff has addressed the character flaw which led to her prescribing behaviour with Patient A.
Complaint two also constitutes professional misconduct. Patients are entitled to expect that medication will not be prescribed for them unless it is supported by clinical evidence or research as to its likely effectiveness. Patients are entitled to expect that Schedule 4 drugs will not be prescribed by a general practitioner unless there is a proper basis, including a proper diagnosis.
Dr Ruff said, in cross examination, that she prescribed Duromine to Patient F because 'it seemed to make a positive impact on her mental health'. However, Dr Ruff then conceded that during the time that she was prescribing Duromine, Patient F's mental health deteriorated to the point that Dr Ruff prescribed Quetiapine. Dr Ruff then said that Patient F's mental health was 'up and down'.
It was pointed out to Dr Ruff in cross examination that Dr Wan refused to prescribe Duromine for Patient F on 13 January 2016. Dr Wan's note records that Patient F requested Duromine, but that Dr Wan refused to prescribe it on the basis that there was 'no weight issue'. Dr Ruff then saw Patient F on 14 January 2016 and prescribed Duromine, even though she read Dr Wan's note. The following exchange took place: Q So why would you prescribe Duromine to Patient F in circumstances where a fellow colleague has refused it the day before? A Because I wasn't prescribing it for her weight, I was prescribing it for her mental state. Q I suggest you prescribed it on that occasion because you were just acceding to her dependency desires over proper treatment of her? A She, she was - she - there, there were mental health issues there. Q Well, you were prescribing, you say, for mental health issues and Duromine was, you accept, not doing the purpose for which you prescribed it? A Yeah Q So why keep prescribing Duromine? A The, the consultations were really difficult. There were, there were a lot of, sort of, like issues there to deal with and that's why I, I ended up prescribing. Q Because you didn't want to deal with her complexities and just accede to her demands? A No.
Again, Dr Ruff, with a patient with complex issues, seemed to be unable to avoid prescribing a drug against her better judgment. Again, this is not something that Dr Ruff has demonstrated that she has addressed subsequently.
Complaint three, in context, constitutes professional misconduct. The inadequacy of the records kept by Dr Ruff was not the result of occasional carelessness. The records were inadequate very frequently over a very long period of time. Dr Ruff blamed the inadequacy of her records on her busyness. This is simply unacceptable. The keeping of records in accordance with the Regulations is an essential component of medical practice, not a technical requirement to be satisfied when time permits. A routine of practice must be adopted which enables proper notes to be made and recorded as a matter of course.
Complaint four has been made out.

Protective Orders

The disciplinary powers of the Tribunal are set out in Subdivision 6 of Division 3 of Part 8 of the National Law.
The purpose of a disciplinary order is not to punish the practitioner, but to protect the public, to preserve the standards of the medical profession and to maintain public confidence in the high standards of the medical profession. There is also an element of deterrence, or encouragement to other practitioners to continue observing the appropriate standard of practice. (see Prakash v Health Care Complaints Commission [2006] NSWCA 153 and Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]).
Having found that Dr Ruff has committed professional misconduct, in that three complaints have been proven against her which comprise 'unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration', we will now consider whether suspension or cancellation of Dr Ruff's registration is called for, or whether some other protective order is appropriate.
Dr Ruff began practising as a general practitioner in 1988. In 2004, she had been practising for 16 years.
Dr Ruff said that from 2004 until October 2015, when she was practising at the small practice, she was largely unsupported in that she would be the only doctor consulting when she was present at the practice and her hours did not usually overlap with the other doctor at the practice.
Since October 2015, Dr Ruff has been practising at the larger practice, and she believes that she has more support.
We reject Dr Ruff's characterisation of herself as a relatively junior practitioner during her years at the smaller practice. She had already been a general practitioner for 14 years by the time she began work at that practice.
Dr Ruff should have been sufficiently capable by 2004 to seek help with patients who she found challenging, notwithstanding that her consulting hours did not coincide with those of the practice principal.
Dr Ruff said that in the larger practice she has a mentor in Dr Wan and other colleagues. She also pointed to the practice's policies with respect to prescribing. She said that she has improved her record keeping and time management skills. She said that the practice provides opportunities for collegial education.
Dr Ruff undertook a number of courses in 2018 and 2019 regarding prescribing, pain and addiction.
In her letter of 20 September 2017, Dr Ruff said that she had, from 2006 to 2012, undertaken a number of courses, workshops, meetings and a webinar about pain management and drug seeking patients. In cross examination before us, however, Dr Ruff agreed that notwithstanding those courses, she continued to inject Patient A with morphine approximately monthly. She also continued to prescribe excessively for Patient A. Dr Ruff said, under cross examination, that Patient A manipulated her. Dr Ruff said, in her letter of 17 September 2017, that she was 'totally out of her depth' with Patient A and her family.
In evidence, Dr Ruff said that she moved to the larger practice early in October 2015.
Dr Ruff prescribed Oxycodone for Patient A on 2 October 2015, 6 October 2015, 9 October 2015, 12 October 2015, 15 October 2015, 19 October 2015, 22 October 2015, 26 October 2015, 29 October 2015, 2 November 2015, 5 November 2015, 12 November 2015, 16 November 2015, 19 November 2015, 23 November 2015, 26 November 2015, 30 November 2015, 3 December 2015, 7 December 2015 and 14 December 2015. Each prescription was for 20 tablets.
Dr Ruff wrote numerous prescriptions for Patient A for Panadeine Forte and Diazepam in the months of October, November and December 2015, leading up to Patient A's attempted suicide.
By December 2015, Dr Ruff had been practising as a general practitioner for a period of 27 years.
It was submitted on behalf of Dr Ruff that the appropriate protective order would be to impose conditions upon her registration. The conditions suggested include a condition that Dr Ruff not prescribe Schedule 4D and Schedule 8 drugs. They also include a condition that Dr Ruff be supervised and required to discuss professional boundaries with her supervisor. Further, it is suggested that Dr Ruff nominate a professional mentor and discuss specified issues with that mentor from time to time.
It was submitted on behalf of the HCCC that the appropriate protective order is that the practitioner's registration be cancelled pursuant to s 149C of the National Law, and that an order be made that the practitioner may not seek a review of the cancellation order under Division 8 of Part 8 of the National Law for a period of two years after the cancellation order.
In all of the circumstances, the appropriate protective order is that Dr Ruff's registration as a medical practitioner be cancelled and that she may not seek the review of the cancellation for a period of two years.

Orders 1. Dr Ruff's registration as a medical practitioner is cancelled. 2. Dr Ruff may not apply for the review of the cancellation of her registration for a period of two years from the cancellation. 3. The appropriate review body is the Civil and Administrative Tribunal of New South Wales, pursuant to s 149E of the Health Practitioner Regulation National Law. 4. Any application for costs in this matter should be filed and served within 21 days of the date of publication of this decision, together with written submissions in support of the application. 5. Written submissions in response to an application for costs should be filed and served within 21 days of receipt of the application for costs. 6. In the event that the question of costs is agreed, the parties may file joint written submissions in lieu of the written submissions referred to in orders (4) and (5). 7. Under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), an order is made prohibiting disclosure to any person or entity of the names of the patients set out in the complaint and the name of any child of Patient A.

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 02 November 2020 - Removed irrelevant coversheet details 23 November 2020 - Pursuant to reg 9 of the Civil and Administrative Tribunal Regulations 2013, and with the consent of the parties, the entire text of Order 3 is replaced and the words 'The order will provide that it may be reviewed by the Medical Council.' is deleted from par 195. 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: 23 November 2020

At a glance

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Judgment (14 paragraphs)

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Cases Cited (6)