Health Care Complaints Commission v Sriskanda

Patient A

1. The respondent's assessment of the patient fell significantly below the standard reasonably expected and invites strong criticism.
2. The prescription of oxycodone fell significantly below the standard reasonably expected and invites strong criticism. On one occasion the respondent prescribed oxycodone to the patient, who did not attend the appointment, and the prescriptions were provided to his daughter. On another occasion prescriptions were provided upon email request.
3. The prescription was made in the absence of diagnostic processes and was grossly excessive: 1,092 tablets of oxycodone 40mg were prescribed between 24 March 2017 and 25 May 2018 and 1,036 tablets of oxycodone 80mg, an oral morphine equivalent daily dose (oMEDD) of 444.5mg whilst the patient was being treated for dependence on oxycodone on the NSW Opioid Treatment Program ("the OTP").
4. The patient exhibited drug seeking behaviours, which are documented in the clinical records. The respondent failed to act on the multiple red flags, documented in the medical records, pointing to the patient's drug-seeking behaviour. Further, she failed to act upon the concerns, noted in the medical records, of another medical practitioner in the practice that the patient was drug-seeking and that further prescribing of opioids was declined.
5. The respondent failed to make appropriate, specific or timely referrals to allied health practitioners or pain/addiction clinics and there is no record of assessment of opioid dependence and no record of a management plan. This conduct fell significantly below the standard reasonably expected and invites strong criticism. The prescription of oxycodone to the patient while the patient was on the OTP was inappropriate and invites strong criticism. In particular, the medical records include a reference, dated 22 March 2017, that the patient was on the OTP under an alternate prescriber, which should have alerted the respondent to the need to notify and liaise with the prescriber about the patient's opioid prescriptions. The respondent had completed an Opioid Treatment Accreditation course on 8 November 2017 and was later approved to be an OTP prescriber of methadone and buprenorphine.
6. The respondent's management of the patient following the banning of the patient from the practice was inappropriate: the respondent should have provided a management plan that involved appropriate addiction/pain specialist or service. The respondent should not have provided any opioid scripts unless authorised by an appropriate regulatory and clinical framework. The conduct, which was a significant departure from the standard, invites strong criticism.
7. Prescriptions for Schedule 8 drugs should not have been provided to the patient's daughter, nor should the respondent have provided scripts upon email request by the patient. Such conduct is significantly below the expected standard and invites strong criticism.
8. The expert noted that the medical records were mostly adequate as per The Royal Australian College of General Practitioners' (RACGP) "Standards for general practices", 4th edition ("the RACGP Standards"), criterion 1.7.1 and 1.7.2, in respect of prescribing records. However, Dr Sriskanda's medical records did not meet the "safe and quality use of medicines" criterion (5.3.1), in that her records failed to include the indicator that patients are informed about the purpose, benefits and risks of their medications; and the practice failed to comply with jurisdictional legislative requirements in respect of Schedule 4 and Schedule 8 medicines. The expert found that the medical records are significantly below the expected standard and invite strong criticism. Tribunal finding - Patient A: the Tribunal concurs with the opinion of the expert, specifically regarding the clinical assessment, management and prescribing of Schedule 8 drugs for this patient, as well as the medical records.

Patient B

1. Patient B is the daughter of Patient A. The expert found that it was not clinically indicated or appropriate to prescribe oxycodone to the patient on the dates and in the quantities described. There is no documentation in the medical records of the presenting complaint, the clinical assessment of the pain, the clinical indication for prescribing opioids and the management plan.
2. On 12 December 2016, after a colleague at the same practice had ceased oxycodone 40mg a day, the respondent significantly increased that opioid dose to oxycodone 120mg a day without reference to the clearly documented patient symptom history and references to drug seeking behaviours which were recorded. The respondent did not document a call to the Prescription Shopping Information Service ("the PSIS") or any assessment to see if the patient was on the OTP.
3. The prescription of oxycodone to the patient was inappropriate. The respondent did not prescribe oxycodone to the patient for an accepted therapeutic standard, dosage frequency or duration. This patient was prescribed 532 tablets of oxycodone 40mg and 504 tablets of oxycodone 80mg in the period 4 September 2017 to 27 December 2017, an oMEDD of 840mg.
4. The expert noted that there were appropriate referrals to allied health practitioners, such as a physiotherapist and chiropractor. However, there was no consideration of referral to a pain/addiction medicine specialist service and there are inconsistent notes concerning narcotic dependence.
5. There are numerous references to drug seeking behaviours documented in the clinical records by the respondent and her colleagues and notification by the Prescription Shopping Programme ("the PSP"). The respondent did not respond appropriately to such behaviour.
6. The conduct of the respondent was significantly below the standard reasonably expected and invites strong criticism.
7. Further, it was inappropriate for the respondent to prescribe Schedule 8 drugs to the patient without approval under section 29 of the PTG Act. The conduct, which was a significant departure from the standard, invites strong criticism.
8. The expert noted that the medical records were mostly adequate as per criterion 1.7.1 and 1.7.2 of the RACGP Standards. However, Dr Sriskanda's medical records did not meet the "safe and quality use of medicines" criterion (5.3.1), in that her records failed to include the indicator that patients are informed about the purpose, benefits and risks of their medications; and the practice failed to comply with jurisdictional legislative requirements in respect of Schedule 4 and Schedule 8 medicines. The expert found that the medical records are significantly below the expected standard and invite strong criticism. Tribunal finding - Patient B: The Tribunal concurs with the opinion of the expert, specifically regarding the clinical assessment, management and prescribing of Schedule 8 drugs for this patient, as well as the medical records.

Patient C

1. Patient C was prescribed oxycodone. The respondent's initial assessment on 11 September 2015 post-dated clearly documented concern regarding the patient's pain syndrome and concern about her use and dosage of opioids from several colleagues. The respondent did record notes referencing possible pain clinic assessment at Gosford Hospital but did not appropriately seek clinical clarification. There was no appropriate assessment of the patient's response to current analgesia; no physical or psychological examination recorded; and no records to show appropriate contact with the PSP.
2. The respondent did make appropriate referrals to the orthopaedic spine clinic, made reference to the patient attending a physiotherapist, and provided another referral to the Gosford Pain Clinic and to a neurosurgeon. However, these episodic referrals were in the absence of an overall focussed management plan. Further the respondent did not reference the outcome of the addiction clinic referrals when prescribing repeated doses of opioids.
3. The prescribing was not clinically indicated or appropriate and the respondent required authority under section 29 of the PTG Act. During the period 19 December 2017 to 12 June 2018 the respondent prescribed 20 tablets of oxycodone 5mg, 816 tablets of oxycodone 20mg, 28 tablets of oxycodone 30mg, 308 tablets of oxycodone 40mg and 280 tablets of oxycodone 80mg, an oMEDD 445.5mg while she was treated for dependence to oxycodone on the NSW OTP. The conduct, which was a significant departure from the expected standard, invites strong criticism.
4. There were recorded characteristics of the patient's drug- seeking behaviour and documented aberrant substance use presentations. However the respondent did not act on these warnings and continued to inappropriately prescribe opioids. For example, the patient sought opioids scripts on 24 March 2017, claiming that the scripts were not received in the pharmacy. Notwithstanding the respondent's medical records noting that she was notified these scripts were received by the pharmacist, the respondent inappropriately prescribed these medications, 3 days after the previous prescription. The conduct, which was a significant departure from the expected standard, invites strong criticism.
5. The expert noted that the medical records were mostly adequate with the exception of a failure to meet the "safe and quality use of medicines" criterion (5.3.1) of the RACGP Standards, in that her records failed to include the indicator that patients are informed about the purpose, benefits and risks of their medications; and the practice failed to comply with jurisdictional legislative requirements in respect of Schedule 4 and Schedule 8 medicines. The expert found that the medical records are significantly below the expected standard and invite strong criticism. Tribunal finding - Patient C: The Tribunal concurs with the expert's opinion, specifically regarding the clinical assessment, management and prescribing of Schedule 8 drugs for this patient, as well as the medical records.

Patient D

1. The respondent's past notes record concerns about Patient D's pain management and risk of addiction. For example, on 18 November 2015, the respondent identified through her own enquiries and recorded in the medical notes that the patient was a prescription shopper with more than 6 prescribers in 3 months and more than 12 scripts. Notwithstanding the respondent having obtained this information, on the next occasion when she consulted the patient she prescribed three opioids - fentanyl, oxycodone and OxyContin. Two weeks later she repeated the fentanyl and OxyContin prescriptions and another two weeks later, on 1 April 2016, she prescribed Durogesic (fentanyl), OxyContin and Valium. She continued this kind of prescribing every 2-3 weeks up to at least 25 January 2019. The respondent's records don't reference any concerns about this prescribing and there was no record of a collateral history, no examination findings and no checking whether the patient was on the OTP prior to prescribing oxycodone or OxyContin in combination with diazepam and fentanyl.
2. The respondent prescribed oxycodone, diazepam and fentanyl patches when no appropriate assessment had been carried out; the prescription of such drugs was not clinically indicated or appropriate; the prescribing did not accord with accepted therapeutic standards regarding dosage, frequency and duration; and no appropriate and timely referrals for specialist assistance were made.
3. During the period 8 January 2018 to 28 December 2018 the patient was prescribed 560 tablets of oxycodone 5mg, 308 tablets of oxycodone 20mg; 112 tablets of oxycodone 30mg; 700 tablets of oxycodone 40mg; and a total amount of 190 fentanyl transdermal 50mcg/hour patches, an oMEDD of 325.5 mg. As fentanyl patches are intended to be used every three days, the patient was prescribed an excess quantity of 72 fentanyl transdermal patches in this period.
4. The respondent did not review and manage any past pain clinic assessment and inappropriately prescribed Schedule 8 drugs. The conduct of the respondent was a significant departure from the standard and invites strong criticism.
5. The expert noted that the medical records were mostly adequate, with the exception of a failure to meet the "safe and quality use of medicines" criterion of the RACGP Standards, in that her records failed to include the indicator that patients are informed about the purpose, benefits and risks of their medications; and the practice failed to comply with jurisdictional legislative requirements in respect of Schedule 4 and Schedule 8 medicines. The records are significantly below the expected standard and invite strong criticism. Tribunal finding - Patient D: The Tribunal concurs with the expert's opinion, specifically regarding the clinical assessment, management and prescribing of Schedule 8 and Schedule 4D drugs for this patient, as well as the medical records.

Patient E

1. The respondent prescribed oxycodone to Patient E for hip pain. Such drug was not clinically indicated or appropriate to prescribe. The patient was prescribed 370 tablets of oxycodone 20mg; 140 tablets of oxycodone 30mg, 336 tablets of oxycodone 40mg and 336 tablets of oxycodone 80mg in the period 1 September 2017 to 30 October 2017, an oMEDD of 1,320mg. The respondent's conduct in so prescribing is significantly below this requisite standard and invites strong criticism.
2. Such prescriptions exceed the guidelines and standards advising on safe upper limits of oMEDD of 100-120mgs by a significant margin. There was no appropriate clinical review or referral to an addiction specialist. No assessment was made by the respondent that this dose may be physically dangerous or that the patient was illegally utilising the prescriptions. The prescriptions do not accord with therapeutic standards regarding dosage and frequency of Schedule 8 drugs. Further, the respondent did not have the necessary approval to prescribe such drugs under section 29 of the PTG Act.
3. The respondent did not act appropriately in response to recorded drug-seeking behaviour and the recorded concerns of another practitioner that the patient was a "prescriber shopper". Instead, she continued to prescribe Schedule 8 drugs with no records of appropriate clinical review.
4. The expert noted that the medical records were mostly adequate as per the RACGP Standards, criterion 1.7.1 and 1.7.2. However, Dr Sriskanda's medical records did not meet the "safe and quality use of medicines" criterion of these Standards for "prescribing records" (5.3.1) in that her records failed to include the indicator that patients are informed about the purpose, benefits and risks of their medications; and the practice failed to comply with jurisdictional legislative requirements in respect of Schedule 4 and Schedule 8 medicines. The expert found that the medical records are significantly below the expected standard and invite strong criticism. Tribunal finding - Patient E: The Tribunal concurs with the opinion of the expert, specifically regarding the clinical assessment, management and prescribing of Schedule 8 drugs for this patient, as well as the medical records.

Patient F

1. Patient F was prescribed oxycodone, diazepam, alprazolam and oxazepam for a diagnosis of stress and later chronic pain. There was no appropriate physical examination and no supportive evidence of a management plan that integrated the inappropriate prescribing of a potent opioid. The respondent did not check the PSIS or appropriately check if the patient was on an OTP.
2. The prescriptions were not clinically indicated or appropriate to prescribe on the dates and in the quantities described. The doses are excessive for benzodiazepines and the quantities of opioids exceeded the guideline standard of risk level of 100-120mgs oMEDD to a level of 816mgs oMEDD a day in the patient.
3. In the period 7 January 2017 to 20 October 2017 the respondent prescribed the patient 360 tablets of oxycodone 10mg; 340 tablets of oxycodone 20mg; 2,044 tablets of oxycodone 40mg; 868 tablets of oxycodone 80mg. The respondent also prescribed 120 tablets of alprazolam 1mg; 500 tablets of alprazolam 2mg; 1,700 tablets of diazepam and 475 tablets of oxazepam.
4. The prescriptions did not accord with accepted therapeutic standards regarding dosage, frequency and duration and there was an absence of adequate general practice assessment, appropriate allied health support for chronic pain and appropriate addiction medicine or pain specialist assessment. The respondent appeared to provide additional prescriptions on 20 or more occasions to the patient on his request, when he claimed he had either lost or misplaced or had his prescriptions or medications stolen, during a nine-month period. The respondent issued additional prescriptions to the patient on five occasions when he had reported lost or stolen medication or prescriptions.
5. It was inappropriate for the respondent to prescribe benzodiazepines in combination with oxycodone to the patient due to the known combined risks of combinations.
6. Such conduct is significantly below the standard reasonably expected of a practitioner and invites strong criticism.
7. The expert noted that the medical records were mostly adequate as per the RACGP Standards, criterion 1.7.1 and 1.7.2. However, Dr Sriskanda's medical records did not meet the "safe and quality use of medicines" criterion of these Standards for "prescribing records" (5.3.1), in that her records failed to include the indicator that patients are informed about the purpose, benefits and risks of their medications; and the practice failed to comply with jurisdictional legislative requirements in respect of Schedule 4 and Schedule 8 medicines. The expert found that the medical records are significantly below the expected standard and invite strong criticism. Tribunal finding - Patient F: The Tribunal concurs with the opinion of the expert, specifically regarding the clinical assessment, management and prescribing of Schedule 8 and Schedule 4D drugs for this patient, as well as the medical records.

Patient G

1. The respondent prescribed oxycodone, diazepam and tramadol to Patient G upon a complaint only of "pain during day and night". There was no appropriate evaluation seeking past history from any previous prescribers; no assessment for possible prescription shopping or checking to see if the patient was on the OTP.
2. No pain or addiction specialist was consulted. On 2 August 2016 the respondent prescribed diazepam with a diagnosis recorded as insomnia. The notes indicate that the respondent asked the patient about injecting drugs, thereby raising her awareness of possible aberrant drug use, yet she prescribed diazepam without appropriate assessment of risks such as benzodiazepine and opioid combinations being associated with driving risks, sedation and synergistic impairment with alcohol.
3. The prescription of these drugs was not clinically indicated or appropriate. There was no appropriate evaluation seeking past history or any assessment for possible prescription shopping. The prescriptions did not accord with therapeutic standards regarding dosage, frequency and duration. The respondent failed to make appropriate and timely referrals for specialist assistance, though she was aware that the patient admitted addiction to and intravenous injection of OxyContin. The patient claimed to have lost prescriptions and medication, thereby exhibiting drug seeking behaviours. The respondent should not have prescribed Schedule 8 drugs without the necessary authority under section 29 of the PTG Act.
4. The patient was prescribed oxycodone continuously by the respondent at oMEDD 553mg between 13 January 2017 and 20 October 2017. According to the PRU report, during the period 13 January 2017 to 6 October 2017 the respondent prescribed oxycodone at oMEDD 498mg, as well as 600 tablets of diazepam 5mg, 50 tablets of nitrazepam 5mg, 125 tablets of oxazepam 30mg and 30 tablets of fentanyl 30mg. The PRU records show that the patient was first treated with methadone, on the NSW OTP, on 1 November 2017 for oxycodone dependence.
5. It was inappropriate for the respondent to prescribe benzodiazepines in combination with oxycodone due to the known combined risks of combinations and, given the quantities of opioids prescribed, there were grave risks of drug combinations causing respiratory depression from overdose.
6. Such conduct fell significantly below the standard reasonably expected and invites strong criticism.
7. The expert noted that the medical records were mostly adequate as per the RACGP Standards, criterion 1.7.1 and 1.7.2. However, Dr Sriskanda's medical records did not meet the "safe and quality use of medicines" criterion of these Standards for "prescribing records" (5.3.1), in that her records failed to include the indicator that patients are informed about the purpose, benefits and risks of their medications; and the practice failed to comply with jurisdictional legislative requirements in respect of Schedule 4 and Schedule 8 medicines. The expert found that the medical records are significantly below the expected standard and invite strong criticism. Tribunal Finding - Patient G: The Tribunal concurs with the opinion of the expert, specifically regarding the clinical assessment, management and prescribing of Schedule 8 drugs for this patient, as well as the medical records.

Patient H

1. Patient H was prescribed oxycodone and alprazolam in the absence of any valid clinical reasoning evident in the notes on which to base the prescribing, other than the recorded patient narrative of "bad anxiety".
2. The respondent did not seek any past medical records of diagnoses, appropriate investigations or assessments, despite the fact the patient had reported the apparent use of Xanax or Kalma (alprazolam) for 10 years, which is meant to be a short-term medication.
3. The respondent apparently did not seek assessment for prescription shopping, nor any appropriate management plan, before continuing the medications. In the period 12 March 2018 to 25 June 2018 the respondent prescribed 550 tablets of the Schedule 8 drug of addiction alprazolam 2mg, equivalent to a daily dose of over 10mg of alprazolam. The patient was also prescribed the Schedule 8 drug of addiction oxycodone at an oMEDD of 192mg in this period. Such prescription exceeded the safe OMEDD of 100-120mgs a day. It was not clinically indicated nor appropriate to issue such prescriptions.
4. The records of the PRU show that on 18 May 2018 the respondent applied for an authority to prescribe alprazolam at a daily dose of 6mg to the patient. The respondent advised, in the application, that the patient was drug dependent and the respondent had concerns of drug seeking, lost prescriptions/medication and medical dependence. The application also recorded that the patient was taking alprazolam in Queensland and had not been linked to local mental health services and a psychiatrist review had not been planned. On 18 June 2018 a senior pharmaceutical officer of the PRU spoke to the respondent and advised the respondent to refer the patient to a psychiatrist or addiction medicine specialist and was provided with the drug and alcohol specialist advisory service contact number for further support. The respondent had requested her application be withdrawn and confirmed that she was aware of the need to reapply for an authority after obtaining specialist report. The records show that the respondent had continued to prescribe alprazolam to the patient without an authority despite the above conversation with the PRU officer.
5. The medical records showed the patient repeatedly exhibited drug seeking behaviours. The respondent responded inappropriately to these behaviours by issuing prescriptions and not seeking specialist addition medicine support.
6. The respondent did not make appropriate referrals for specialist assistance even though the patient repeatedly exhibited drug seeking behaviours, as recorded in her clinical record.
7. The conduct of the respondent in so prescribing was significantly below the standard reasonably expected and invites strong criticism.
8. The expert noted that the medical records were mostly adequate as per the RACGP Standards, criterion 1.7.1 and 1.7.2. However, Dr Sriskanda's medical records did not meet the "safe and quality use of medicines" criterion of these Standards for "prescribing records" (5.3.1), in that her records failed to include the indicator that patients are informed about the purpose, benefits and risks of their medications; and the practice failed to comply with jurisdictional legislative requirements in respect of Schedule 4 and Schedule 8 medicines. The expert found that the medical records are significantly below the expected standard and invite strong criticism. Tribunal finding - Patient H: The Tribunal concurs with the opinion of the expert, specifically regarding the clinical assessment, management and prescribing of Schedule 8 drugs for this patient, as well as the medical records.

Patient I

1. Patient I was prescribed alprazolam, clonazepam, diazepam, flunitrazepam, nitrazepam, oxazepam, temazepam and oxycodone. Such drugs were provided for a diagnosis of insomnia and mood disorder for which the patient had been taking anti-depressant medication. During the period in which the respondent managed the patient, she prescribed temazepam often in combination with other long acting benzodiazepines without appropriate assessment and notation supporting the clinical reasoning for such; there is no notation about clinical risks to the patient, especially with knowledge that there were issues of drug dependence and illicit drug use and that the patient was on the methadone program.
2. There was no appropriate assessment of insomnia or concomitant risks such as alcohol intake. The respondent frequently prescribed diazepam which, in combination with numerous other addictive drugs already prescribed, would have increased his physical risks of serious side-effects.
3. There was no appropriate assessment and management of the patient prior to the respondent prescribing nitrazepam, such as seeking the advice of an addiction specialist and contemplating the risks of combining benzodiazepines and opioids.
4. Six days after prescribing nitrazepam, the respondent prescribed clonazepam in addition to other benzodiazepines, knowing that the patient was on a methadone program. There was no appropriate assessment and management of the patient prior to this prescribing.
5. It was not clinically indicated nor appropriate to prescribe alprazolam, clonazepam and diazepam to the patient on the dates and in the quantities described based upon the detailed clinical record describing aberrant drug seeking behaviours, known drug dependence and lack of appropriate clinical referrals for management of multi-drug use or appropriate response to documented concerns of colleagues about the patient's prescriptions and illegal drug use. The respondent continued to prescribe drugs while failing to adhere to appropriate regulatory or legislative requirements.
6. The respondent's prescribing did not accord with accepted therapeutic standards regarding dosage, frequency and duration and it was inappropriate to prescribe Schedule 8 drugs without approval under section 29 of the PTG Act. The PRU records record that the respondent had prescribed up to 8 different benzodiazepines and up to 3 different benzodiazepines concurrently to the patient. The patient had been infrequently on the NSW OTP for treatment of dependence to heroin since 24 June 2013. From 6 December 2017 the patient had been continuously treated for dependence to heroin, benzodiazepines and other drugs with methadone on the NSW OTP.
7. From 22 December 2017 to 22 May 2018 the respondent prescribed 30 tablets of alprazolam 1mg, 200 tablets of clonazepam 500mcg, 900 tablets of diazepam 5mg, 30 tablets of flunitrazepam 1mg, 25 tablets of nitrazepam 5mg, 325 tablets of oxazepam 30mg, 125 tablets of temazepam 10mg and 20 tablets of oxycodone 5mg to the patient. On the background of what is recorded in the patient's medical records, with documented aberrant substance use presentations and the advice from colleagues expressing concern about management of the patient's addictions, the respondent should not have provided additional non-PBS scripts to the patient.
8. The conduct of the respondent fell significantly below the expected standard and invites strong criticism.
9. The expert noted that the medical records were mostly adequate as per the RACGP Standards, criterion 1.7.1 and 1.7.2. However, Dr Sriskanda's medical records did not meet the "safe and quality use of medicines" criterion of these Standards for "prescribing records" (5.3.1), in that her records failed to include the indicator that patients are informed about the purpose, benefits and risks of their medications; and the practice failed to comply with jurisdictional legislative requirements in respect of Schedule 4 and Schedule 8 medicines. The expert found that the medical records are significantly below the expected standard and invite strong criticism. Tribunal finding - Patient I: The Tribunal concurs with the opinion of the expert, specifically regarding the clinical assessment, management and prescribing of Schedule 8 and Schedule 4D drugs for this patient, as well as the medical records.
10. With respect to her inappropriate prescribing of opioids in combination with other drugs of dependence to drug-seeking patients, it is salient to note that at the section 150 hearing the respondent recalled that during her training she was specifically warned, by one of her supervisors, about taking on face-value patients who are drug-seeking, and again in the same practice where she worked there were explicit concerns in her patients' records, from the same supervisor and others in the practice, about her patients exhibiting drug-seeking behaviour, and concerns about further prescribing of opioids.
11. In addition, the respondent was specifically warned by the Council in a letter on 9 January 2018 about the risks of her combined prescribing of opioids and benzodiazepines: "[Y]our attention is also directed to the risk associated with interactions of opioids and benzodiazepines medications". Despite such notice, the respondent's prescribing continued and appears to have escalated, at least with respect to Patients E and I.

Applicant's expert evidence - Complaints Three and Four

1. These complaints arise out of substantially the same issue, namely the fact that the respondent attended a consultation with Patient J who had recently separated from his wife, Patient K. Two days later, namely on 10 October 2018, Patient K attended a consultation with respondent. During that consultation the respondent disclosed confidential information, namely the fact that Patient J was conducting an extramarital affair. Such disclosure was made without Patient J's knowledge or consent; in the absence of any proper therapeutic or clinical reason, and in the absence of any legal or public interest requirement.
2. The Medical Board of Australia has issued a publication entitled "Good Medical Practice: A Code of Conduct for Doctors in Australia" (the Code). The Code was published in March 2014.Clause 3.4 relates to confidentiality and privacy. It states: "Patients have a right to expect that doctors and their staff will hold information about them in confidence unless release of information is required by law or public interest considerations. Good medical practice involves: 3.4.1 Treating information outpatients as confidential…"
3. The expert has considered the conduct of the respondent in revealing the extramarital affair to Patient K. By reference to the Code, the expert has expressed the opinion that the conduct of the respondent fell significantly below the reasonably expected standard of a practitioner and invites strong criticism. Tribunal finding - Patients J and K: the Tribunal concurs with the findings of the expert that the breach of confidence constitutes a breach of the Code. The answers provided by the respondent to questions asked of her during the section 150 hearing held on 31 January 2019 demonstrate that the respondent did not foresee any conflict of interest between the consultation with Patient J and that with Patient K and stated that she was "not even thinking about confidentiality during this consult". The respondent stated that she was more concerned about Patient K either self-harming or harming her husband or the third-party. The respondent said she thought she would reduce such risk by telling her that her husband was unsure whether he wished to return to the relationship. The respondent showed a total lack of understanding: she said she thought it would be all right to inform a spouse that she had seen the partner, without having obtained any consent to do so. She considered that as long as she didn't show a file or "tell them anything on their file" it was appropriate. The respondent said that, with hindsight, she realised revealing such information could have escalated the potential conflict between the two patients.

Complaint Three

1. Complaint Three also alleges that the respondent, being aware of disclosures made during the consultation on 10 October 2018 that Patient K had been self-harming and had made a threat to the woman involved in the affair with her husband, failed to conduct an adequate examination of Patient K and failed to refer her for appropriate specialist allied health and psychiatric support and to construct an appropriate ongoing management plan for her.
2. Questions were asked of the respondent during the section 150 hearing held on 31 January 2019 concerning her course of action concerning Patient K. The respondent stated that her plan was to offer "some kind of, sort of, offer her to sort of see - refer her to a psychologist, which she declined and said she was also already under treatment". It is plain that the respondent did not offer any plan or referrals.
3. The expert observed that it was alarming that the patient mentioned she was self-harming and that she wanted to "kill the other partner" of her estranged husband. The psychological needs of Patient K were acute yet no plan was devised. Tribunal finding: The Tribunal agrees with the opinions of the expert.

Complaint Four

1. Complaint Four alleges that the respondent failed to make and keep a record of a treatment plan for Patient K following a consultation, contrary to Schedule 4, clause 1 (2)(c) of the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW).
2. The expert observed that the respondent mentioned that Patient K had had past counselling sessions. However, based on the clinical notes, the respondent did not appear to be offering ongoing assistance. The expert opined that an intervention with a mental health care plan, acute distress tool (K10) assessment to gauge severity, and psychological referral would be possible and usual in such circumstance. Certainly, organising further clinical review was the minimum requirement. The expert concluded that the failure to offer such advice fell significantly below the standard reasonably expected of a practitioner; was a significant departure from the standard and invites strong criticism.
3. The expert noted that the respondent mentioned Patient K commenting on self-harm, but there is no record in the notes of the respondent exploring the relevance and severity of any psychological/psychiatric accompaniment or diagnoses to the patient's narrative. There was a high likelihood of possible major depression and other somatic symptoms. The patient could have been referred to support services such as "Beyond Blue". Whether the respondent should have notified the police of any danger to the other woman or to Patient J was difficult to discern bearing in mind the minimal medical record. Tribunal finding: The Tribunal agrees with the opinions of the expert.

Complaint Five

1. Complaint Five alleges unsatisfactory professional conduct of such a sufficiently serious nature as to constitute professional misconduct. For the reasons set out hereunder, the Tribunal finds that the conduct of the respondent constitutes unsatisfactory professional conduct and professional misconduct.

Standard of proof

1. The applicant is required to establish to a high standard that the conduct that is the subject of the complaint has occurred. Whilst there is no burden of proof in a tribunal hearing where the rules of evidence do not prevail (see FTZK v Minister for Immigration and Border Protection [2014] HCA 26 at [33]-[36]), the standard in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 is the usually accepted standard (see also the observations in Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14] and the observations of the Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41).

The respondent's conduct

1. In this application, the Tribunal observes the gross, dangerous and reckless overprescribing of opioid medications and the inappropriate prescribing of Schedule 8 and Schedule 4D drugs, and combinations of these drugs, including the inappropriate prescribing of Schedule 8 drugs to drug-dependent persons, which the respondent had no authority to prescribe. On every occasion, there was a lack of the required due diligence to ascertain if the patient was drug-dependent, a lack of clinical assessment and a lack of a comprehensive management plan. In certain instances, the prescription quantities were so high as to give rise to serious concern that the prescribed drugs could have put the patient at risk of significant harm and/or that these drugs were being illegally diverted to other persons. In addition, with respect to each patient, there was poor documentation in the medical records of the required history of the presenting complaint, examination findings, clinical assessment and the clinical indication for prescribing the various medications and a lack of documentation of a management plan including follow-up, which makes it difficult for any other practitioner to continue the care of the patient.
2. In these circumstances, the court notes the following observations of the Tribunal in Health Care Complaints Commission v Dr Mohammed Sadiq Asar [2016] NSWCATOD 157, which concerned conduct that bears a close similarity to the conduct engaged in by the respondent in these proceedings: 79. … The respondent conceded that, in the bulk of the cases, he did not perform an appropriate medical assessment prior to issuing the scripts, he did not exercise responsible medical judgement as to whether it was appropriate to issue the scripts, he failed to refer the patients to a specialist for treatment, review or advice and he was aware that his conduct in prescribing drugs of addiction was contraindicated because of the likelihood of substance abuse. In effect, based on the evidence of the respondent himself, as well as the expert opinion of Dr Patterson, the respondent was in the same position as a drug supplier, dispensing drugs of addiction to persons who were, or might become, addicted and drug-dependent. In addition, as is clear from the expert opinion of Dr Patterson and as conceded by the respondent the fact that he prescribed Schedule 8 drugs in combination with a benzodiazepine created significant health risks for some of his patients. These included the possibility of respiratory depression with potentially fatal outcomes as well as the increased risk of benzodiazepine-dependence.
3. The Tribunal also notes the following observations in the above decision at [81]: It is a trite observation that comprehensive record-keeping is essential to assist a medical practitioner in affording proper and appropriate treatment to patients. A history of reported symptoms, diagnoses, tests and procedures, medication, and referrals amongst other matters are necessary tools in the practice of medicine. It is important also that another medical practitioner who may be required to afford treatment to the patient, be able to become informed about the patient as quickly as possible by reference to existing medical records. A failure to keep and maintain necessary and appropriate records may not only constitute a breach of the statutory requirements referred to above, but may, in appropriate cases per se be characterised as constituting unsatisfactory professional conduct and professional misconduct.

Relevant principles - professional misconduct

1. In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA said at [20]: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgement made by the Tribunal."
2. Professional misconduct is defined in section 139E of the National Law as meaning: (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.
3. The definition of professional misconduct was referred to in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], where Basten JA said: "The first aspect of this challenge is based on an assumption that the Tribunal should start with the possibility of deregistration, once a finding is made of professional misconduct, because, by definition, such conduct is of its nature sufficiently serious to justify suspension or removal of the practitioner's name from the register: the Act, s 37. However, it is clear that the definition is focused on the nature of the conduct, which must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss 60-64, which provide that the full range of disciplinary powers is available on a finding of professional misconduct. The statutory constraints operate differently. Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1). Further, the power to impose a fine depends upon a finding that the person is guilty of unsatisfactory professional conduct or professional misconduct: s 62(2). Otherwise, the discretion of the Tribunal is at large and will depend upon the circumstances of the individual case: see, in relation to legal practitioners, Walsh v Law Society of New South Wales (1999) 198 CLR 73 at [76] (McHugh, Kirby and Callinan JJ)."
4. The Tribunal is satisfied that the conduct of the respondent referred to in the complaints is established as follows:

• Complaint One: professional misconduct;
• Complaint Two: unsatisfactory professional conduct;
• Complaint Three: professional misconduct;
• Complaint Four: unsatisfactory professional conduct.

1. Collectively, the conduct particularised above constitutes professional misconduct as alleged in Complaint Five.

Orders

1. The Tribunal makes the following orders: 1. The Tribunal finds that the conduct of the respondent satisfies the definition of both unsatisfactory professional conduct and professional misconduct as alleged in the Complaints; 2. The proceedings be adjourned to determine the appropriate disciplinary sanction to be imposed (Stage 2 of the proceedings).

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 April 2021