Health Care Complaints Commission v Von Marburg

NCAT Occupational|2019-05-21|Before: Dr J

REASONS FOR DECISION

By amended complaint filed on 10 May 2019, the applicant seeks a finding that the practitioner suffers from an opioid dependence disorder, and further, that in consequence of conduct which is claimed to amount to unsatisfactory professional conduct, the respondent (the practitioner) has engaged in professional misconduct under section 139E of the Health Practitioner Regulation National Law ('the National Law').
It should be observed that Complaint Two was withdrawn by the applicant at the commencement of the hearing.
As will become apparent in these reasons, the respondent, who is legally represented, does not challenge the allegations contained in the complaints against him, other than where it is indicated.
The practitioner has filed a Reply to the allegations contained in the amended complaint which in substance admits the allegations although in some cases, an explanation is provided. The practitioner did not attend the hearing. The practitioner does not seek to cross-examine nor challenge the evidence provided by the applicant. The practitioner has provided a statement filed on 18 April 2019 which in part seeks to explain the conduct relied upon by the applicant in these proceedings. Although such statement predates the original complaint, it is still pertinent to the amended complaint which was filed on 10 May 2019.
The details of the practitioner's experience and qualifications are set out in paragraph 3 in the decision of Health Care Complaints Commission v Roland Alexander Von Marburg [2019] NSWCATOD 85, the hearing which took place with these proceedings.

Complaint One The Health Care Complaints Commission … hereby complains that: Dr Roland Von Marburg ("the practitioner") of 572 Kiewa Street ALBURY NSW 2640 being a medical practitioner formerly registered under the National Law, Has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice [sic] the profession of medicine.

BACKGROUND TO COMPLAINT ONE The practitioner was first registered as a medical practitioner in New South Wales in 1999. On 8 May 2012 the former New South Wales Medical Tribunal (established under the Medical Practice Act 1992 (repealed)) found the practitioner engaged in professional misconduct in relation to subject matter concerning inter alia, self-administration of pethidine between April and August 2008.

PARTICULARS OF COMPLAINT ONE 1. The practitioner suffers from an opioid dependence disorder. 2. From 2014 to 2016 the practitioner consumed on average between two and five 30mg codeine phosphate with 500mg paracetamol tablets per day. 3. Between April 2012 and 2016 the practitioner prescribed approximately 3180 tablets of 30mg codeine phosphate with 500mg paracetamol to Patient A in circumstances where some of the tablets were for his personal use. 4. Between April 2012 and 2016 the practitioner prescribed approximately 1650 tablets of 10mg temazepam to Patient A in circumstances where some of the tablets were for his personal use. 5. Between April 2012 and 2016 the practitioner prescribed approximately 2320 tablets of 30mg codeine phosphate with 500mg paracetamol to Patient B in circumstances where some of the tablets were for his personal use. 6. Between April 2012 and 2016 the practitioner prescribed approximately 1125 tablets of 10mg temazepam to Patient B in circumstances where some of the tablets were for his personal use. 7. Between April 2012 and 2016 the practitioner prescribed approximately 1240 tablets of 30mg codeine phosphate with 500mg paracetamol to Patient C in circumstances where some of the tablets were for his personal use. 8. Between April 2012 and 2016 the practitioner prescribed approximately 125 tablets of 10mg temazepam to Patient C in circumstances where some of the tablets were for his personal use. 9. Between April 2012 and 2016 the practitioner prescribed approximately 800 tablets of 30mg codeine phosphate with 500mg paracetamol to Patient D in circumstances where most of the tablets were for his personal use. 10. Between April 2012 and 2016 the practitioner prescribed approximately 25 tablets of 10mg temazepam to Patient D in circumstances where most of the tablets were for this personal use. 11. Between April 2012 and 2016 the practitioner prescribed approximately 900 tablets of 30mg codeine phosphate with 500mg paracetamol to Patient E in circumstances where most of the tablets were for his personal use. 12 Between April 2012 and 2016 the practitioner prescribed approximately 500 tablets of 30mg codeine phosphate with 500mg paracetamol to Patient F in circumstances where most of the tablets were for his personal use.

Finding: Complaint One

Proven, for the following reasons:
The facts concerning this complaint are conveniently set out in paragraphs 68 to 74 of the applicant's submissions. Since the respondent does not challenge such allegation and facts, the Tribunal repeats the submissions as follows: "68. The Respondent says in his reply: "I admit that in the past I have suffered from a dependence on medication I have acknowledged that. I am not practising medicine, and therefore cannot admit that I have an impairment that affects my capacity to practice. "69. In the 2012 proceedings, Dr Fisher, a psychiatrist, gave evidence. The Tribunal noted the following at [35]: "35. It is, therefore, necessary to consider the possibility of a relapse by the doctor. The question of the doctor's possible relapse was addressed by Dr Robert Fisher, Consultant Psychiatrist and the Medical Council's nominated assessor in the overseeing of the doctor's rehabilitation. Dr Fisher opined on 25 July 2011: "When doctors, or any other persons, have developed a pattern of drug abuse and, in particular, drug abuse with intravenous opiates, there is always a potential risk of relapse, and this would have to be deemed to be a potential vulnerability that exists life-long. "The risk of relapse in large part depends upon amelioration of factors that have lead [sic] to the use of, or experimentation with, such drugs in the beginning. This can include prescribed treatment for painful conditions, recreational use for euphoriant effect, or self-treatment of physical pain, or psychological distress and whether the person has developed a mindset that the use of such drugs is not an option, and that they are able to hold that resolve over time. . . . "As best I can ascertain, Dr Von Marburg expresses full commitment to remaining abstinent from self-administration of prohibited substances, and he says that his life situation is less stressful and that he is not troubled by headache as much as he was previously. "All these factors could be seen to reduce the risk of lapsing into Pethidine or other prohibited substance abuse. I do not believe it is possible for anyone to quantify the likelihood of Dr Von Marburg suffering a lapse. . . . "Apart from the evidence that he has not lapsed into self-administration of Pethidine or used any other prohibited substances, (as reflected in the supervised drug screening), Dr Von Marburg reports being less anxious, less stressed and generally happier over the years since 2008. He reports a very supportive and fulfilling family life and tells me that he has not been subject to any further complaints about his clinical practice. . . . "I believe that, as long as Dr Von Marburg desists from self-administration of Pethidine or any other prohibitive substances, and complies with the usual standards of medical practice and of his specialty ENT practice, he does not pose any risk to the community." "70. The Respondent was seen by Dr Smith on 27 March 2017 at the request of the Medical Council. Dr Smith prepared report (16/22) which included a diagnosis of Opioid Use Disorder, Severe (16/22/14). "71. In his report, Dr Smith noted that the Respondent had been abstinent of drugs whilst being monitored but relapsed when monitoring was removed and there was no ongoing engagement in a program of recovery (16/22/14). "72. Dr Smith considered the Respondent was impaired within the meaning of that term in the National Law and that his opioid use disorder was a chronic, relapsing condition which required a focus on abstinence from all addictive substances. Dr Smith recommended various treatment and monitoring steps (16/22/14-15). "73. In a report to the Medical Council dated 25 August 2017 (18/2) Dr Smith noted progress from the Respondent in dealing with his opioid use disorder. Of particular relevance, having regard to the paragraph immediately above, was the fact that the Respondent reported seeing a drug and alcohol counsellor monthly, a psychiatrist monthly and his GP fortnightly to monthly, for support in his endeavours to not misuse drugs."
Dr Smith prepared his third report dated 8 May 2019. The respondent objected to the tender of such report on the basis that Dr Smith had not consulted with him since his interviews referred to above.
The Tribunal considered that Dr Smith's report should be admitted. The report provided the Tribunal with information on the most likely assessment upon the issue whether the respondent currently posed a risk of relapse and whether the impairment was likely to continue. It was not necessary for Dr Smith to consult with the respondent to provide such an opinion. Further, the report specifically did not address the issue whether the respondent was currently competent to practise medicine, rather it related to the respondent's impairment.
Dr Smith stated that he believed the Respondent suffers, and will continue to suffer, from an impairment as defined in the National Law. This is because he is at a high risk of relapse into substance use (as evidenced by him having a severe opioid dependence disorder and his several relapses in the past) which could put patient safety at risk if he were not monitored and made the subject of conditions.
The definition of "impairment" is set out in the National Law as meaning (section 5) "the person has a physical or mental impairment, disability, condition or disorder bracket including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession".
Dr Smith provided oral evidence to the Tribunal, in addition to his written reports. Dr Smith reiterated his opinion that the respondent has a long-standing history of relapses; that the risk of relapse is high; that as a surgeon, the risk to patients was high including the potential risk of death to a patient. Dr Smith stated that even if the respondent had ceased his opioid use, and that there was independent evidence of this fact; and that he was involved in a treatment program, there remains a risk of relapse.
The Tribunal notes that during an interview with Dr Smith the respondent informed him (Dr Smith) that he (the respondent) had ceased the use of opioids between 2012 and 2016. Such statement was incorrect. The respondent acknowledged in a letter written to the applicant on 3 October 2017 that he had been consuming opioids since 2012. The numerous prescriptions which had been written, detailed in such letter, confirm that the respondent had consumed substantial quantities of codeine and temazepam "for my personal use".
The respondent submitted that no finding could be made of impairment as defined because the definition contained in section 5 of the National Law required that the evidence establish that the person (i.e. the practitioner) "has a physical or mental impairment"; that in the absence of contemporary evidence, no such finding could be made. It was submitted that Dr Smith's last examination occurred in August 2017 and was inadequate to establish that the practitioner was suffering from a current impairment.
The Tribunal rejects such submission. Firstly, Dr Smith testified that once a person has an opioid disorder, it remains although it may pass into remission. There is no evidence that the practitioner is in remission. Secondly, the definition is not limited to a finding that the practitioner "has" an impairment: the text of the definition includes "or is likely to detrimentally affect…" the person's capacity to practise the profession. Accordingly, even if it might be asserted that the evidence of Dr Smith was inadequate to reach the requisite current status of the practitioner, the Tribunal is satisfied that the condition which existed is one which is "likely" to affect his ability to practise. Dr Smith stated that, even in the best case scenario, where a practitioner had been abstinent, had been undertaking thrice weekly urine drug-testing and had been engaged in treatment, he would still consider that the practitioner had an opioid-dependence disorder, although in remission. In these circumstances Dr Smith was of the view that the practitioner would still require on-going treatment, engagement in the Medical Council's health program, and monitoring. Dr Smith observed that the practitioner had relapsed whilst under conditions imposed by the Medical Council which he considered to be indicative of a higher risk of future relapse.
Evidence was adduced of a hearing relating to the practitioner in 2012, at which Dr Robert Fisher, psychiatrist provided evidence. According to the transcript of those proceedings, Dr Fisher provided evidence that the practitioner's disorder was not affecting his capacity to practise medicine. Such evidence was given in relation to the Medical Council's assessment as part of the practitioner's involvement in a health program. Dr Smith did not agree with such assessment and expressed the view that the disorder potentially posed the risk of death to patients of the practitioner if he were permitted to engage in surgery.
The evidence of Dr Smith establishes that the practitioner has an impairment within the meaning of the definition arising from his substance use disorder which would be likely to detrimentally affect his capacity to practice medicine. The Tribunal rejects the submission that there is no evidence that the respondent does not currently have an impairment as defined in section 5 of the National Law.
The respondent submitted that before any finding could be made of "impairment" as defined in section 5, it was necessary for that person to be a registered health practitioner, or an applicant for registration as referred to in (a) of the definition. In support of such submission, the respondent pointed to the fact that once a practitioner is no longer registered, such person cannot be required to undergo compulsory medical examination. Further, the structure of Division 13 of the National Law makes provision for an Impaired Registrants Panel which is created for the purpose, as provided in section 170 3A of conducting reviews of registered health practitioners. The respondent also relies upon the referral of only registered health practitioners under Division 4 of the act which relates to the powers of the Tribunal to require a registered health practitioner to undergo examination (see section 152B of the National Law).
The Tribunal rejects such submissions. The Tribunal possesses such power: the provisions of section 139G applies Part 8 of the National Law to a former medical practitioner as if that person was a registered practitioner: as per section 139G (2) and (3). Such conclusion is confirmed by the provisions of section 149A of the National Law which empowers the Tribunal to impose various sanctions upon a medical practitioner. Subparagraph (3) thereof expressly extends such power to a former medical practitioner when it relevantly states: "If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only - (a) to prevent the practitioner being registered unless the order is complied with; …"
Further, taking into consideration the general objectives of the National Law as set out in section 3 (2) (a) and the guiding principle contained in section 3A of the National Law, namely, the protection of the public, the Tribunal is satisfied that Parliament intended, by virtue of the provisions of section 139G and of Part 8 of the act, that medical practitioners be the subject of continuing supervision.
Accordingly, the Tribunal may make a finding that a former practitioner is suffering from an impairment as defined in section 5 of the National Law. The Tribunal finds that the practitioner is so impaired.

Complaint Three The respondent is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular 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.

BACKGROUND TO COMPLAINT THREE On 3 November 2008 conditions were imposed on the practitioner's registration including: 'To attend for treatment by a psychiatrist of his choice, experienced in the treatment of drug addiction at a frequency to be determined by Dr Von Marburg and the treating psychiatrist..." ("Condition A"). "To attend for treatment by a counsellor of his choice, experienced in the treatment of drug addiction at a frequency to be determined by Dr Von Marburg and the treating counsellor..." ("Condition B") The above conditions remained in place until the practitioner surrendered his registration on 20 October 2017.

PARTICULARS OF COMPLAINT THREE On 28 February 2017 the practitioner provided false and misleading information to the Council by stating in an email addressed to a Senior Program Officer of the Council, that "my drug and alcohol counsellor is Mr Alan Fisher" in circumstances where as at 16 April 2018, there had never been a consultation between the practitioner and Mr Fisher.

Finding: Complaint Three

Proven, for the reasons given in paras 26 to 32.
This complaint relates to the alleged misleading statement to the Medical Council concerning the practitioner's treatment provider. As a result of the hearing in Health Care Complaints Commission v Dr Roland Von Marburg [2012] NSWMT 5 at (33), conditions were imposed upon the practitioner's practice, including the requirement to attend a drug and alcohol counsellor.
The applicant's submissions succinctly state the facts concerning this complaint as follows: "92. In his reply the Respondent says that he viewed Mr Fisher as fulfilling the role of counsellor although he was not seeing him on any regular basis. He says he has not always been open in discussing his matter with the Council and if it mislead the Council it is below the standard expected of him. "93. In his statement the Respondent says Mr Fisher was aware he had been nominated as the Respondent's treating counsellor, that he met with him on a number of occasions and that he had never failed to attend on any request for a consultation. He said he was not aware how Mr Fisher chose to frame their relationship (undated statement at [7]). "94. The Respondent says he does not recall how often he saw Mr Fisher, though Mr Fisher attended the Respondent's rooms on 'a number of occasions' in 2008. The Respondent says as far as he recalls he never failed to follow any advice given by Mr Fisher (undated statement at [11])."
The email sent on 28 February 2017 by the respondent to the applicant contained the following statement: "My drug and alcohol counsellor is Mr Alan Fisher…"
Such statement is both false and misleading. Mr Fisher wrote to the applicant on 15 May 2017 stating as follows: "Dr RVM [the respondent] was seen on two occasions to provide treatment options all of which he declined. [The respondent] did not consent to formal referral with specialist AOD services, thus was not registered. The contacts were informal information and explanation of treatment modalities. This case attracted much media attention and he was seen in his rooms for anonymity in a small regional city and health service. [The respondent] did not engage in any formal treatment plan, and informed that he would "get in touch if need be" and that was the last time that I spoke to him. "I am grateful for the opportunity to clarify the non-existence of a formal professional relationship, and appreciate that you may have been led to believe differently."
Mr Fisher also wrote again to the applicant on 16 April 2018 in response to a summons he received for production of documents relating to the treatment provided to the respondent, stating inter alia: "There was no referral received, nor consent given to open a treatment episode, and thus no clinical documentation for any formal treatment episode for the person with this name and date of birth".
The Tribunal agrees with the applicant that it is plain there was never any treatment relationship between Mr Fisher and the respondent. Indeed, Mr Fisher says he offered the opportunity for treatment to the respondent, but this was declined.
The respondent's statement in reply obfuscates and does not address the critical issue, namely whether or not he provided false and misleading information as alleged.
The Tribunal is satisfied that this complaint is established, and that such conduct constitutes unsatisfactory misconduct.

Complaint Four The respondent is guilty of unsatisfactory professional conduct under section 139B(1)(c) of the National Law in that the practitioner has contravened a condition to which the practitioner's registration was subject. Each particular 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.

BACKGROUND TO COMPLAINT FOUR The background for Complaint Three is repeated.

PARTICULARS OF COMPLAINT FOUR Between early 2012 and 19 October 2017 the practitioner contravened a condition of his registration in that he failed to consult with a counsellor experienced in the treatment of drug addiction, contrary to Condition B.

Finding: Complaint Four

Proven, for the following reason:
The practitioner has not adduced any evidence that he engaged with any counsellor, other than his claim that he had consultations with Mr Fisher, which, as set out in the above findings, has proven to be false.
The failure of the practitioner to fulfil the condition is factually established, and constitutes unsatisfactory professional misconduct.

Complaint Five The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) and/or (I) of the National Law in that the practitioner has: i. contravened the regulations under the National Law; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular 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.

BACKGROUND FOR COMPLAINT FIVE The background for Complaints One and Three is repeated.

PARTICULARS OF COMPLAINT FIVE 1. Between April 2012 and December 2014 the practitioner failed to keep any records of medical care or treatment provided to Patients, A, B, C, D, E, F or G contrary to the requirements of clause 7 and Schedule 2 clauses 1 and 2 of the Health Practitioner Regulation National Law Regulation (NSW) 2010 (repealed). 2. Between April 2012 and 31 August 2016, the practitioner failed to keep adequate records of medical care or treatment provided to Patients, A, B, C, D, E, F or G contrary to the requirements of clause 6 and Schedule 4 clauses 1 and 3 of the Health Practitioner Regulation National Law Regulation (NSW) 2010 (repealed). 3. Between 1 September 2016 and 31 December 2016, the practitioner failed to keep adequate records of medical care or treatment provided to Patients, A, B, C, D, E, F or G contrary to the requirements of clause 7 and Schedule 2 clauses 1 and 2 of the Health Practitioner Regulation National Law Regulation (NSW) 2016.

Finding: Complaint Five

Proven, for the reasons given in paras 37 to 41.
Whilst the practitioner, in his statement, asserts that his records, in part, were lost as a consequence of a computer virus, the practitioner has produced no evidence to support such allegation and has failed to provide any sworn statement verifying his assertion. In the absence of such evidence, the Tribunal is satisfied that the practitioner's explanation should be rejected.
The practitioner was prescribing medication for relevant patients from April 2012. No records have been produced for the relevant patients between April 2012 and 2014. In 2014 records commence, but not for all patients, nor for all episodes of prescribing. In respect of some patients, patient records do not commence until 2016. However, it is plain from the prescribing record that the practitioner was prescribing both codeine and temazepam to patients from 2012.
Accordingly, the Tribunal finds that no patient records were kept prior to 2014 for the relevant patients.
In respect of the period April 2012 to 31 August 2016 and from 1 September 2016 to end of 2016, the records maintained for patients A to G were inadequate in that they lacked the requisite detail. The substantial amounts of medication appear to have been consumed mainly by the respondent, who acknowledges such fact.
The Tribunal finds particulars 1, 2 and 3 of complaint five proven, and that such conduct constitutes unsatisfactory professional conduct.

Complaint Six 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, or ii. 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

BACKGROUND TO COMPLAINT SIX The background for Complaint One is repeated.

PARTICULARS OF COMPLAINT SIX 1. Complaint Three and Complaint Four are repeated and relied upon individually. 2. Complaints Three, Four and Five and the particulars thereof are repeated and relied upon cumulatively.

Finding: Complaint Six

Complaint Six is proven. The conduct particularised constitutes unsatisfactory professional conduct.

Summary of Findings

The Tribunal finds in respect of Complaint One; that the practitioner suffers from an impairment as defined in section 5 of the National Law. The Tribunal finds that in respect of Complaints 3, 4 and 5, the conduct of the practitioner constitutes unsatisfactory professional conduct. When considered cumulatively, the Tribunal finds that the conduct constitutes professional misconduct by the practitioner.
Finding: 1. The proceedings are to be adjourned for consideration of protective measures required (stage 2).

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 13 June 2019

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