Health Care Complaints Commission v Whitton

Particular 1

1. We are satisfied that on one occasion, in about mid-2014, the respondent inappropriately self-administered a Schedule 8 drug of addiction within the meaning of the Poisons and Therapeutic Goods Regulation 2008. We make this finding upon the evidence of Patient A. That evidence is unchallenged by the respondent however, in order for us to make the necessary finding the evidence must be clear, specific and reliable. There is nothing to suggest Patient A is not a reliable witness, quite the contrary and we accept that she provided her statement knowing the purpose for which it would be used and therefore the seriousness of the possible consequences to the respondent of her statement. The statement of Patient A upon which we make the finding is as follows: "About six months after they commenced to cohabit Patient A observed the respondent, in his consultation room, draw up by syringe from a small brown bottle, a liquid and then observed him inject the content of the syringe into his thigh through his trousers. She then observed he became "relaxed" and he said to her he was "whoozy and floatey". She asked him what he had injected and he replied "Morphine"."
2. As can be seen, the statement identifies when the event took place, where it took place, what she observed and what the respondent told her. The words of the respondent, which she set out, amount to a confession and in the circumstances, both Patient A and the Tribunal are entitled to conclude that what he told her, the substance he injected, is accurate.
3. We also find that there is nothing in the evidence to suggest that the respondent was injecting himself with morphine to treat himself for a particular medical condition. The evidence is more supportive of the injection being for self-gratification. To the extent that it is necessary to do so, we do not accept the denial of the respondent, which is to the effect that he did not self-administer morphine.
4. We note, Schedule 8 of the Poisons and Therapeutic Goods Regulation 2008 includes morphine and is defined as a drug of addiction.
5. The self-administration of medication is contrary to Clause 9.2.2 of the Medical Board of Australia Code of Conduct for Doctors in Australia.
6. We also accept the evidence of the expert Dr Relf and find that the self-administration of morphine was conduct which was below the standard reasonably expected of a medical practitioner. It was significantly below the standard. It invites the expert's strong criticism.
7. Although Patient A asserted during her relationship with the respondent, "I think (respondent) injected Morphine on approximately 10 occasions that I know of", she did not say how she knew that. Accordingly, as we have earlier recorded, that statement cannot be given any meaningful weight by us.

Particular 2

1. This particular alleges that between January 2014 and December 2015 the respondent inappropriately self-administered Phentermine and Temazepam. The evidence of Patient A in paragraphs 29 and 30 (TAB 10 in exhibit A1) is relied upon by the applicant to establish the fact. The admission of the respondent to self-prescribing Temazepam is also relied upon.
2. The evidence of Patient A is not specific enough, on its own, to enable us to make the finding sought by the applicant. However, the admission made by the respondent on 23 December 2015 when he appeared before the HCCC, Medical Council of NSW interviewers, who were considering the imposition of protective orders and conditions pursuant to s 150 of the National Law is worthy of significant weight. In that interview, recorded and reproduced at TAB 4 of exhibit A1, the respondent said: "I've never consumed anything beyond that, apart from self-prescribed Temazepam". That admission we are able to accept and find that the respondent inappropriately self-administered that drug. We are satisfied the administration was inappropriate because of the opinion of Dr Relf as stated below.
3. The HCCC also alleges that the respondent self-administered Phentermine and relied upon a transcript of a recorded HCCC interview conducted with the respondent on 22 April 2016. A transcript of that interview appears at TAB 6 of exhibit A1 and the HCCC relies upon pages 29 to 31 to establish this allegation. However, that passage does not provide the admission sought and accordingly we cannot make the finding.
4. Whilst acknowledging he had said at an earlier time he had been "self-prescribing benzodiazepines", he stated that was a reference to Temazepam only.
5. The expert Dr Relf considered the self-prescribing of Temazepam for insomnia is poor personal conduct. He opined it fell below the standard reasonably expected of a medical practitioner however, not significantly below.

Particular 3

1. This allegation is that the respondent inappropriately self-administered medication prescribed for his mother and that was contrary to Clause 9.2.2 of the Medical Board of Australia Code of Conduct for Doctors in Australia.
2. We find this particular allegation established. The evidence relied upon is the admission made by the respondent to the Interviewing Panel during a recorded interview conducted on 22 April 2016. There at page 30 of the transcript (TAB 6 of exhibit A1) the respondent admitted, "I may well have used some of those tablets that were prescribed for her, which were at her house, which is basically in Camden as well. I probably did." The transcript makes clear that the tablets referred to by the respondent were Temazepam.
3. The HCCC rely upon the evidence of Dr Relf (TAB 13 of exhibit A1 at page 6 section 1(c)) where he opined that such action "is below the standard reasonably expected of a medical practitioner, it is also significantly below the standard and invites my strong criticism."

Particular 4

1. This particular alleges the respondent failed to keep records, in particular a "controlled drug register" of all Schedule 8 drugs of addiction, held at his practice and/or in his "Doctors Bag" contrary to Clause 46 of the PTGR (Poisons and Therapeutic Goods Regulation 2008).
2. The HCCC then set out specific dates from 15 August 2013 to 11 May 2015 upon which it is alleged the respondent prescribed/obtained ampoules of Morphine Sulfate 30mg/ml and failed to keep a prescribed record of same.
3. The HCCC rely upon the evidence contained in TAB 68 (pages 6 & 7) of exhibit A1 (Vol 2 of exhibit A1), which is a record of morphine sulfate ampoules identified for the purpose of the Doctors Bag. The HCCC rely upon the respondent's admission T24 at page 2 that he failed to keep a drug register in respect of pethidine or morphine obtained for his Doctors Bag. He recognised that failure to keep the record was a breach of his obligations.
4. The admission was relied upon by Dr Relf to reach his conclusion/opinion that the failure to keep the register amounts to conduct which fell below the standard reasonably expected of a medical practitioner (see TAB 13, page 9 heading (f)).

Conclusion to Complaint One

1. We are satisfied that the HCCC has made out Complaint One, paragraph (i), i.e. the respondent "engaged in conduct that demonstrates the 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;". The evidence set out above amply establishes, to our satisfaction, that complaint.
2. Section 139B(1)(l) requires the HCCC to establish, in this case, that the respondent: "engaged in improper or unethical conduct relating to the practice or purported practice of medicine."
3. The HCCC, in the submission provided in this matter submitted that the facts alleged in relation to Complaint One, if accepted in whole or part, must be illustrative of improper and unethical conduct. We accept that on the ordinary meaning of those words, the facts we have found to be established for Complaint One do satisfy us that the respondent's conduct amounted to improper and unethical conduct relating to the practice or purported practice of medicine.

COMPLAINT TWO

1. This complaint seeks a finding that the respondent is guilty of unsatisfactory professional conduct under s 139B of the National Law.

Particulars 1, 2 and 3

1. These three particulars relate to Patient A. It is alleged that: "1. On 3 January 2015 and 7 October 2015, the practitioner inappropriately prescribed Phentermine, a Schedule 4D prescribed restricted substance within the meaning of the PTGR to Patient A in circumstances where: a) there was no clinical indication for the prescription; b) the prescription was issued for a purpose that was not in accordance with a recognised therapeutic standard of what was appropriate in the circumstances contrary to Clause 34 of the PTGR; c) the practitioner failed to carry out an appropriate clinical assessment. 2. On 17 February 2015 and 21 July 2015, the practitioner inappropriately prescribed Alprazolam, a Schedule 8 drug of addiction within the meaning of the PTGR, to Patient A in circumstances where: a) there was no clinical indication for the prescription; b) the prescription was issued for a purpose that was not in accordance with recognised therapeutic standards of what was appropriate in the circumstances contrary to Clause 79 of the PTGR; c) the practitioner failed to carry out an appropriate clinical assessment. 3. Between January 2014 and December 2015, the practitioner inappropriately injected Patient A with Morphine, a Schedule 8 drug of addiction within the meaning of the PTGR on one occasion in circumstances where: a) there was no clinical indication for the injection; b) the injection was administered for a purpose that was not in accordance with recognised therapeutic standards of what was appropriate in the circumstances contrary to Clause 79 of the PTGR; c) the practitioner failed to carry out an appropriate clinical assessment prior to injecting Patient A."
2. The evidence to support these particulars are submitted to be found in different portions of the evidence. Firstly the applicant says TAB 66 of exhibit A1 is a prescribing schedule for Patient A. That schedule confirms the prescription of Phentermine and Alprazolam for Patient A, by the respondent, on the dates cited. Additionally, Patient A in her statement at TAB 10 (paragraphs 31 & 32) said the respondent prescribed Duromine for her. Additionally she said the respondent prescribed Alprax for her to assist her with flying as she was a "bad flyer". In the schedule at TAB 66 the prescription of Alprax (Alprazolam) by the respondent for Patient A can be seen on 17 February 2015 and 21 July 2015.
3. The applicant relies on the admission made by the respondent at TAB 26 (page 2) of exhibit A1. There, in a letter from his solicitor to the HCCC, the respondent agreed he had prescribed Duromine for Patient A however, he claimed extenuating circumstances. He said it was a continuation of a prescription that Patient A's GP had previously issued. Further, before writing the prescription, the respondent examined the patient. The patient was at the time his de facto wife.
4. It should be noted that Duromine is a commercial brand name for the drug Phentermine.
5. The applicant submits that the prescribing of Phentermine and Alprazolam by the respondent for Patient A, was opined by Dr Relf to have fallen significantly below the standard reasonably expected of a medical practitioner and he said it invites his strong criticism. Dr Relf further said at page 3 of his report: "The prescribing of phentermine for a person who is not overweight is highly inappropriate. There are indications and risk of long-term harm even in moderate use. There were no indications for this prescription and is concerning as to the motivation of the doctor - possibly to be attentive to her wishes and further the relationship. Further abuse of position and power and giving 'permission' for drug taking behaviour."
6. Under the heading "In summary:" Dr Relf said there was "No indications for prescribing either medications (phentermine and alprazolam) (and) that makes it look far more like 'recreational' prescribing". He said there are "indications that drug taking was encouraged by the doctor as part of the relationship…."
7. The HCCC also rely on the comment of Dr Relf on page 2 of his report where he said in relation to Question 5, "Regarding the prescribing of medication during a De facto relationship: Any prescribing for family members is against the rules of medical conduct, unless there are extenuating circumstances, but there are none in this case." Further at page 7 of the report, Dr Relf says in answer to Question 18: "Providing prescriptions for partners is misconduct unless there are extenuating circumstances. Each prescription is given from a new patient assessment, irrespective of whether the prescription is a repeat or not. Repeat prescriptions still require reassessment. This is below the standard reasonably expected of a medical practitioner. It is significantly below the standard and invites strong criticism. The strong criticism is because they are centrally acting and addictive drugs to a parent responsible for her child, the weight loss drug was prescribed to her despite the fact that she didn't need to lose weight, there was also likely secondary gains for the relationship and giving 'permission' for further drug taking."
8. In relation to the alleged inappropriate injection of Patient A with morphine, the applicant relies upon the evidence of Patient A. In her statement (TAB 10 at paragraph 26) Patient A states in early 2015, the respondent injected her in the upper thigh and said to her "well now we've shared a needle" and he showed her that he had the other half of the dose he had given her. The context for that statement is found at the commencement of paragraph 26 which states: "Sometimes Louis asked me to have Morphine with him. Other times, Louis would indicate that he was going to have an injection, but would say "I'm not sharing." I remember saying that "I didn't care because it made (me) vomit when I had it in hospital with my broken femur." Louis would often respond by saying that I "hadn't had the right dose and having a half dose would be enjoyable," After he said this one time in early 2015, I relented and said that I would "try"."
9. In paragraph 26 of her statement, Patient A clearly understands she was injected with morphine on the occasion referred to.
10. We find there is sufficient evidence from Patient A to establish that she was injected by the respondent on the occasion she stated. We find that the injection probably contained a substance which included morphine. The fact that she became ill and vomited for many hours after receiving the injection adds to the weight which can be given to her belief that she was injected with morphine.
11. Dr Relf in his report at TAB 13, page 6 Section 1(c) Question 11, said of this event: "Injection of her (sic) partner with S8 drugs is significantly below the standard and invites strong criticism because it (sic) true consent is not present and an abuse of power, puts the recipient at risk of dependency, is mood altering, is illegal and should not be done to someone responsible for a child." He considered the conduct was significantly below the standard and he said it invites very strong criticism. He added, "If proven it may be a matter for a police investigation."
12. Additional evidence which adds to the probability that the respondent did inject Patient A with morphine on the occasion set out above, is found in the further evidence of Patient A which is recorded above as: "Patient A stated that when she questioned the respondent about the continued use by him of Morphine he informed her he could only "get it from the Doctor's bag about once a month. He would say 'that is the only way I can get it'."

Particular 4

1. This particular alleges the respondent injected Patient A using the same needle he had previously used for self-administration. The evidence to support this complaint is said to be in the statement of Patient A in TAB 10 at paragraph 26 where the following words are stated: "However, immediately after the injection, Louis said "well now we've shared a needle". He showed me that he had had the other half of the dose he gave me."
2. The question we have to determine is whether those words said by the respondent to Patient A as she records, are sufficient to enable a conclusion there was an admission. Patient A does not say she saw him inject himself on that particular occasion. However, she was clearly of the understanding that the respondent had injected himself with the same needle and had taken half of the available dose and then administered the balance of the dose to her.
3. Given the circumstance as described by Patient A in paragraph 26 of her statement, we accept the evidence is sufficient to allow us to conclude, on the requisite standard, that the respondent was asserting that he was sharing the injection with Patient A. That is, that the same syringe and needle was used by him before he used it to inject Patient A. The whole of the circumstance in which the statement was made suggest he was more likely to have been truthful than untruthful.

Particular 5

1. This alleges that the respondent had acted contrary to clause 3.14 of the Medical Board of Australia Code of Conduct for Doctors in Australia, in that, he was performing a medical procedure on a patient with whom he shared a de facto relationship.
2. We are satisfied the respondent did inject Patient A, as she has stated, at a time he was in a de facto relationship with her. We accept that was outside of an exception circumstance and he was at that time in breach of that Code.

Particular 6

1. This particular alleges that between the stated dates the respondent permitted Patient A to undertake procedures on his patients at a time he knew she was not appropriately trained to undertake same. The procedures were: to take blood; perform ECGs and conduct allergy tests.
2. The applicant relies upon the statement of Patient A found at TAB 10 of exhibit A1. There she stated (paragraphs 18 & 19) she undertook the taking of blood, the performance of ECGs and conducting allergy testing. For about 18 months she worked on Wednesdays and Saturdays. On Saturdays she took blood.
3. The respondent denied that Patient A undertook ECG procedures. He said through his solicitor that he did not recall Patient A taking blood and if she did, it was not with his knowledge or consent (TAB 32 page 11 at [33] in exhibit A1). However, in a statement made by him, on 23 December 2015 (TAB 37 in exhibit A1) he said, "I accept that on a couple of occasions I asked (Patient A) to take blood samples from patients."
4. The statement of Patient A is also corroborated by witness GB in her statement (see TAB 11 paragraph 23). She said Patient A did take blood from patients.
5. In the evidence of Dr Relf (TAB 13 page 5 section 1(b) under the heading Conduct), he opines that if Patient A's version of fact is accepted, then the conduct of the respondent fell significantly below the standard expected of a medical practitioner. Dr Relf also opined that even on the respondent's version of fact, his conduct fell significantly below the standard reasonably expected of a medical practitioner.
6. We have considered the evidence of Patient A on this allegation that she took blood, performed ECG procedures and tested for allergy on patients of the respondent. We have considered the respondent's evidence on the same subject and we find we do accept the evidence of Patient A on that matter. In doing so, we have taken into account the denial of the respondent in the letter written by his solicitor on his behalf to the HCCC and dated 18 January 2017. We have taken into account the admission made by the respondent in his signed statement dated 23 December 2015. The contradictory nature of those two different versions, attributed to the respondent in relation to this allegation, suggest to us unreliability for the respondent on that issue. We thus prefer the evidence based upon the statement of Patient A.
7. In addition to preferring the statement of Patient A on this particular allegation, we note the evidence contained at TAB 18 exhibit A1, where Austech Medical Laboratories forms, which accompany blood samples for testing, note the collector as a named female. The form is also signed by the respondent. The respondent has not put to issue that the person identified as the named female (collector) is not Patient A.

Particular 7

1. This particular relates to the respondent's mother and the treating of her by the respondent. It is alleged the respondent prescribed Schedule 4D restricted substances and Schedule 8 drugs of addiction contrary to clause 3.14 of the Medical Board of Australia Code of Conduct for Doctors in Australia ("the Code").
2. We have earlier set out the provisions of clause 3.14 of the Code.
3. The applicant alleges the respondent acted as his mother's primary care practitioner between 15 March 2000 and 9 February 2016. The Code provides that practitioners avoid providing medical care to anyone with whom they have a close personal relationship including family members UNLESS it is unavoidable.
4. At TAB 67 of exhibit A1 the prescribing schedule for Patient B is set out. The respondent's medical records for Patient B are set out at TAB 79 of exhibit A1. The progress notes date from 15 March 2000 (Page 107). The prescribing schedule at TAB 67 is for "Prescribing for (Patient B) by (the respondent)". The dates for the prescriptions range from dates in 2010 to dates in 2015. The records in TAB 67 show 709 scripts written for Patient B by the respondent. The medical records kept by the respondent for his mother commence in 2000 and continue until early 2016. The respondent admits to treating his mother until December 2016. The continued treating of Patient B by the respondent was opined by Dr Relf to be significantly below the standard reasonably expected from a medical practitioner (TAB 13 page 10 & 11). Dr Relf said that acting for his mother became a far more significant matter for the respondent when he commenced prescribing narcotics for his mother. That should have been the immediate cause for the transfer of her care to another practitioner.

COMPLAINT THREE

1. This complaint relates to Patients C, D, E, F, G, H, I, and J. The complaint is brought under s 139B(1)(a) and (l). The relevant provisions of that regulation are set out earlier in these reasons.

Particular 1 (Patient C)

1. The applicant alleges the respondent between 23 February 2012 and 9 February 2015, inappropriately prescribed Oxycodone, a Schedule 8 drug, in circumstances where the practitioner failed to: "a) conduct an appropriate medical assessment prior to prescribing Oxycodone; b) prescribe Oxycodone in an appropriate quantity; c) obtain an appropriate authority to prescribe Oxycodone in circumstances where the practitioner had formed, or ought reasonably to have formed the opinion that Patient C was a drug dependant person; d) prescribe Oxycodone for an appropriate therapeutic purpose; and e) make appropriate and timely referrals for specialist assistance."
2. The evidence to support this allegation is set out in Annexure C to the Complaint document at TAB 1 of exhibit A1. That shows the prescribing of Oxycodone by the respondent for Patient C between the dates set out above.
3. At TAB 13, page 16 Dr Relf considers the prescribing of oxycodone by the respondent for Patient C. He stated that the "presented information" (provided to the expert by the HCCC) was deficient in many areas. His criticism of the prescribing of oxycodone for Patient C is scathing of the respondent. He said: "It is extremely unusual for this patient to be managed with narcotics. It would need support from current specialist letters (orthopaedic/pain specialist). The medical records kept by the respondent for this patient were clearly inadequate if it was the case that the respondent carried out further investigations and consultations than those set out in the records."
4. The expert considered the conduct of the respondent with this patient was below the standard reasonably expected of a medical practitioner. He said the conduct was significantly below the standard. It did not invite strong criticism.

Particular 2 (Patient D)

1. The HCCC alleges: With respect to Patient D, the conduct complained of is that between 18 July 2011 and 23 April 2016, the practitioner inappropriately prescribed Diazepam, a Schedule 4D prescribed restricted substance in circumstances where the practitioner failed to: "a) conduct an appropriate medical assessment prior to prescribing Diazepam; b) prescribe Diazepam in an appropriate quantity; c) deal with Patient D's drug-seeking behaviour appropriately; d) prescribe Diazepam for an appropriate therapeutic purpose; and e) make appropriate and timely referrals for specialist assistance."
2. A prescribing schedule for Patient D is at Annexure D to the Complaint. That document shows a lengthy list of prescriptions for Diazepam for patient D under the hand of the respondent.
3. Dr Relf's opinion as to the respondent's conduct is at TAB 13, pp19-20 exhibit A1. He opines the conduct of the respondent fell below the standard reasonably expected of a medical practitioner but NOT significantly.

Particular 3 (Patient E)

1. The HCCC alleges: With respect to Patient E, the conduct complained of is that between 17 June 2011 and 25 April 2016, the practitioner inappropriately prescribed Diazepam and Oxazepam, Schedule 4D prescribed restricted substances and Oxycodone, a Schedule 8 drug, in circumstances where the practitioner failed to: "a) conduct an appropriate medical assessment prior to prescribing Diazepam, Oxazepam and Oxycodone; b) prescribe Diazepam, Oxazepam and Oxycodone in an appropriate quantity; c) obtain an appropriate authority to prescribe Oxycodone in circumstances where the practitioner had formed, or ought reasonably to have formed the opinion that Patient E was a drug dependant person; d) prescribe Diazepam, Oxazepam and Oxycodone for an appropriate therapeutic purpose; and e) make appropriate and timely referrals for specialist assistance."
2. A prescribing schedule for Patient E is at Annexure E to the Complaint. That shows a very extensive list of prescriptions of the drugs specified above. Most of the prescriptions are for Oxycodone.
3. Dr Relf's opinion as to the respondent's conduct is at pp21-23. In reaching that opinion, he had regard to the prescribing table, the patient records kept by the respondent and the respondent's response to the HCCC dated 18 January 2017.
4. He opines that the respondents conduct fell significantly below the standard reasonably expected of a medical practitioner but which generally did not invite strong criticism. He did reserve strong criticism in relation to the quantity of drugs prescribed by the respondent for this patient. He said he was unable to discern from the information provided (including the respondent's medical records for the patient), what was an appropriate dose for the patient. This is a comment which really reflects upon the record keeping of the respondent. Further, he said, "The actual prescribing is very high by any measure."

Particular 6 (Patient F)

1. The HCCC allege: With respect to Patient F, the conduct complained of is that between 18 June 2011 and 17 May 2016, the practitioner inappropriately prescribed certain Schedule 4D prescribed restricted substances and Schedule 8 drugs (as set out at Annexure F to the Complaint) in circumstances where the practitioner: "a) failed to conduct an appropriate medical assessment prior to prescribing Alprazolam, Phentermine, Diazepam, Fentanyl and Oxycodone; b) failed to prescribe Alprazolam, Phentermine, Diazepam, Fentanyl and Oxycodone in an appropriate quantity; c) failed to obtain an appropriate authority to prescribe Alprazolam, Fentanyl and Oxycodone to Patient F in circumstances where the practitioner had formed, or ought reasonably to have formed the opinion that Patient F was a drug dependant person; d) inappropriately prescribed benzodiazepines in combination with opioid medications; e) failed to prescribe Alprazolam, Phentermine, Diazepam, Fentanyl and Oxycodone for an appropriate therapeutic purpose; and f) failed to make appropriate and timely referrals for specialist assistance."
2. The prescribing schedule for Patient F is at Annexure F to the Complaint document. That shows prescriptions for Patient F detailing drugs which are specified above. Most of the prescriptions are for Alprazolam and Oxycodone.
3. Dr Relf's opinion as to the respondent's conduct is at TAB 13, pp24-26 of exhibit A1. He there opines the respondent's conduct fell significantly below the standard reasonably expected of a medical practitioner. He found that the respondent had not conducted an adequate assessment as evidenced in his notes. He was critical of the respondent for not instigating ongoing primary intervention. He was critical of the respondent prescribing S8 drugs to the patient without an authority under s 28 of the PTGA 1966. He said it was not appropriate for the respondent to have prescribed benzodiazepines to the patient in combination with a S8 drug. He said it created an increased risk to the patient. He opined that the respondent's records for this patient did not contain sufficient ongoing information to make the clinical decisions being made.

Particular 7 (Patient G)

1. The HCCC allegation in relation to this patient is as follows: With respect to Patient G, the conduct complained of is that between 20 June 2011 and 12 April 2016, the practitioner inappropriately prescribed certain Schedule 4D prescribed restricted substances and Schedule 8 drugs (as set out at Annexure G to the Complaint) in circumstances where the practitioner: "a) failed to conduct an appropriate medical assessment prior to prescribing Diazepam, Oxycodone, Pethidine and Phentermine; b) failed to prescribe Diazepam, Oxycodone, Pethidine and Phentermine in an appropriate quantity; c) failed to obtain an appropriate authority to prescribe Oxycodone and Pethidine in circumstances where the practitioner had formed, or ought reasonably to have formed the opinion that Patient G was a drug dependant person; d) inappropriately prescribed benzodiazepines in combination with opioid medications; e) failed to prescribe Diazepam, Oxycodone, Pethidine and Phentermine for an appropriate therapeutic purpose; and f) failed to make appropriate and timely referrals for specialist assistance."
2. A prescribing schedule for Patient G is at Annexure G to the Complaint document (TAB 1 exhibit A1). There is an extensive list of prescriptions for this patient. The largest quantity of prescriptions is for Diazepam.
3. Dr Relf's opinion as to the respondent's conduct is at TAB 13 pp27-28 exhibit A1. There he opines the respondent's conduct fell in a range between below the standard reasonably expected of a medical practitioner, and significantly below the standard reasonably expected of a medical practitioner.
4. Dr Relf is critical of the notes kept by the respondent on this patient. He was concerned about the high level of doses prescribed. He said there were no indications, nor was a case made for prescribing Diazepam. There were no history or examination findings indicative of requirement. He opined that the medical records were below the standard.

Particular 8 (Patient H)

1. In relation to this allegation the HCCC says:
2. With respect to Patient H, the conduct complained of is that between 21 June 2011 and 26 April 2016, the practitioner inappropriately prescribed certain Schedule 4D prescribed restricted substances and Schedule 8 drugs (as set out at Annexure H to the Complaint) in circumstances where the practitioner failed to: "a) conduct an appropriate medical assessment prior to prescribing Oxycodone and Phentermine; b) prescribe Oxycodone and Phentermine in an appropriate quantity; c) obtain an appropriate authority to prescribe Oxycodone in circumstances where the practitioner had formed, or ought reasonably to have formed the opinion that Patient H was a drug dependant person; d) prescribe Oxycodone and Phentermine for an appropriate therapeutic purpose; and e) make appropriate and timely referrals for specialist assistance for Patient H."
3. A prescribing schedule for Patient H is at Annexure H to the Complaint document set out at TAB 1 exhibit A1. The list of prescription contains multiple references to the drugs named in the allegation.
4. Dr Relf's opinion as to the respondent's conduct is at TAB 13 pp29-30 exhibit A1. He opines the conduct of the respondent with this patient fell in a range between below the standard reasonably expected of a medical practitioner, and significantly below the standard reasonably expected of a medical practitioner.
5. Dr Relf said that "there were no history and examination findings consistent with the requirement to prescribe narcotics." He opined the dosages of the drugs prescribed were high compared to normal. He considered the high and frequent doses should have alerted the respondent to scrutiny and reassessment of the patient and making the appropriate checks for trafficking and drug abuse. He opined there was a lack of "adequate notes in the history".

Particular 9 (Patient I)

1. The HCCC allege in relation to this patient as follows:
2. With respect to Patient I, the conduct complained of is that between 27 June 2012 and 11 April 2016, the practitioner inappropriately prescribed certain Schedule 4D prescribed restricted substances and Schedule 8 drugs (as set out in the doses and quantities in the prescribing schedule at Annexure I to the Complaint) in circumstances where the practitioner: "a) failed to conduct an appropriate medical assessment prior to prescribing Schedule 4D and 8 medications; b) failed to prescribe Schedule 4D and Schedule 8 medications in an appropriate quantity; c) failed to obtain an appropriate authority to prescribe Oxycodone & Naloxone and Tapentadol in circumstances where the practitioner had formed, or ought reasonably to have formed the opinion that Patient I was a drug dependant person; d) inappropriately prescribed benzodiazepines in combination with opioid medications; e) failed to prescribe Schedule 4D and Schedule 8 medications for an appropriate therapeutic purpose; and f) failed to make appropriate and timely referrals for specialist assistance."
3. A prescribing schedule for Patient I is at Annexure I to the Complaint document at TAB 1 of exhibit A1. The annexure lists prescriptions for the drugs set out above.
4. Dr Relf's opinion as to the respondent's conduct is at TAB 13 pp31-32 of exhibit A1. He opines the respondent's conduct fell in a range between below the standard reasonably expected of a medical practitioner, and significantly below the standard reasonably expected of a medical practitioner.
5. Dr Relf said there were no history and examination findings consistent with the requirement to prescribe narcotics. He said the medical records made by the respondent for this patient were not up to standard.

Particular 10 (Patient J)

1. The HCCC allegation in relation to the conduct of the respondent with Patient J as follows:
2. With respect to Patient J, between 12 August 2011 and 1 July 2014 the practitioner inappropriately prescribed certain Schedule 4D prescribed restricted substances (as set out at Annexure J to the Complaint) in circumstances where the practitioner failed to: "a) conduct an appropriate medical assessment prior to prescribing Bromazepam, Diazepam and Temazepam; b) prescribe Bromazepam, Diazepam and Temazepam in an appropriate quantity; c) deal with Patient J's drug-seeking behaviour appropriately; d) prescribe Bromazepam, Diazepam and Temazepam for an appropriate therapeutic purpose; and e) make appropriate and timely referrals for specialist assistance."
3. A prescribing schedule for Patient J is at Annexure J to the Complaint document at TAB 1 of exhibit A1. The schedule contains multiple prescriptions for Diazepam. The other drugs referred to above are also set out.
4. Dr Relf's opinion as to the respondent's conduct is at TAB 13 pp31-32 of exhibit A1. He opines the conduct of the respondent with this patient fell in a range between below the standard reasonably expected of a medical practitioner, and significantly below the standard reasonably expected of a medical practitioner.
5. Dr Relf opines there were no history and examination findings consistent with the requirement to prescribe benzodiazepines. He opined there was insufficient evidence of active follow-up by history and examination for the condition treated. He opined the quantity of drug prescribed was excessive considering the specialist recommendations that primarily centred on depression and social issues/the involvement of alcohol. He said the medical records were below the standard.

Particular 11 (renewing prescriptions for S8 and s 4D drugs without consultation)

1. The HCCC alleges in this particular that: Between 2011 and 2016, on diverse occasions, the practitioner failed to provide adequate care to Patients C, D, E, F, G, H, I and J in that he failed to conduct an appropriate consultation and assessment of each patient prior to writing prescription renewals for Schedule 4D and Schedule 8, in circumstances where: "a) the practitioner permitted each patient to telephone for prescription renewals; b) the practitioner permitted patients to collect the said prescriptions from the after-hours mail box; and c) the practitioner requested that Patient A fax through renewal prescriptions to pharmacies, on diverse occasions, when no consultation had taken place."
2. Both Patient A and witness GB, a former employee of the respondent in his medical practice who provided a statement which is contained at TAB 11 of exhibit A1, gave evidence of the practice of issuing prescriptions by phone order. At paragraph 10 of her statement, witness GB identified each of the patients named in this particular now under consideration.
3. The evidence of GB is that "when I was working for (the respondent) I would regularly receive calls from patients requesting scripts for their regular medications… they were not new patients. Some of the regular patients who would call requesting scripts for medication such as Oxycontin, Endone and Panadeine Forte." She then named the patients who appear as the subject of this complaint.
4. The witness said: "When this occurred, I would go to the patient's details in the computer and check usage of tablets, dosage and when the last script had been written. I then printed the script for (the respondent) to sign. I entered into the computer "no consultation" which indicated that the patient rang for the script and did not attend the surgery. Scripts issued when the patient did not see (the respondent) were generally picked up from the practice by the patient the next day. Sometimes scripts were sent directly to the patient's chemist or sent to their home address. If the practice was going to be closed when the patient was able to pick up the script, it could be left in the letterbox on the veranda of the surgery."
5. The witness said she did not leave scripts for "strong medicine" such as Oxycontin in the letterbox. Private patients left $5 for the script when they collected it.
6. The evidence of GB (as set out above) is supported by the evidence of Patient A. In her statement (TAB 10 paragraphs 14 to 17 in exhibit A1) Patient A also gives evidence corroborating the practice of issuing scripts to patients who rang the surgery. She recalls sending a script by fax to a pharmacy for a patient who did not attend the practice while she was there. The prescription was for Endone and/or Oxycontin. She did that on at least 10 occasions.
7. The respondent admits, via letter from his solicitors (at T32 in exhibit A1) to providing prescription renewals without consultation to Patients D (p3 at 4(i)), E (p4 at 7(i)), G (p7 at 15(i)) and H (p8 at 18(i)). He had in an earlier declaration (T37 in exhibit A1) stated that he would personally hand the renewal to the patient when that patient attended to collect the prescription. That evidence is inconsistent with the evidence of both Patient A (T10 at [15] Exhibit A1) and GB (T11 at [13] exhibit A1) as set out above. The suggestion that the prescriptions would be "personally" handed over by the respondent is not noted in his later solicitor's letter.
8. As to the process described above constituting misconduct, Dr Relf opines it fell significantly below the standard reasonably expected of a medical practitioner and in some instances invited strong criticism.
9. Dr Relf opined that "the practice of allowing patients to telephone for renewal of S4 and S8 prescriptions goes against the normal process of medical practice". A further examination and history taking and considering is necessary for each script renewal. "Many levels of this process are breached by this conduct. There would have to be exceptional and extenuating circumstances for this to even occur on one occasion. In this case there were no exceptional circumstances."

Particular 12 (The billing of Medicare for an "Item 3")

1. The HCCC allege that between 2011 and 2016, on occasions, the practitioner billed Medicare an "Item 3" for prescriptions that were written following Patients C, D, E, F, G, H, I and J telephoning the practitioner for prescription renewals in circumstances where no consultation had taken place.
2. Patient A gives evidence (TAB 10 at [15] exhibit A1) of entering an "Item 3" in such instances. The respondent has not addressed in correspondence or other material this conduct.
3. Item 3 is a Medicare billing number and is listed on the Medicare Website as: "Professional attendance for an obvious problem characterised by the straightforward nature of the task that requires a short patient history and, if required, limited examination and management."
4. As to constituting misconduct, the expert Dr Relf (TAB 13 at p4, Q7(d)) opines the respondent's conduct in this activity fell significantly below the standard reasonably expected of a medical practitioner and it invites strong criticism. He said, "Billing Medicare for any item number when no consultation takes place is fraudulent and is also medical misconduct." He also said, "Charging patients $5 to pick up the prescription when no consultation took place is not proper medical conduct."

COMPLAINT THREE (2nd Complaint Three)

1. This complaint is set out in the Application and asserts the respondent: "is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2010."
2. In relation to this complaint the HCCC submits that the respondent is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Health Practitioner Regulation (NSW), in, inter alia, failing to maintain adequate medical records in respect of each of the patients C - J.
3. Particular 1 relevantly is that between 2011 and 2016, the practitioner contravened Clause 7 of Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 in relation to the overall clinical records for Patients C, D, E, F, G, H, I and J in that the practitioner failed to: "a) maintain adequate medical records for each patient; b) include information that would enable other practitioners to understand such patients' current management for the continuity of their care and treatment; c) ensure that medication annotated in the detailed progress notes was listed in "Previous Prescriptions" located at the front of each patient's medical record; and d) ensure that medication prescribed was recorded and/or recorded accurately all relevant dates in the progress notes for each patients' medical record."
4. Clause 7 of Part 4 of the Health Practitioner Regulation (New South Wales) Regulation 2010 and Schedule 2 to that regulation provide in relation to the keeping of medical records as follows: 2 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment.
5. The HCCC submits the issue of the adequacy of the relevant patient records is addressed in Dr Relf's report (T13) with respect to: 1. Patient C - at p18, item 7 which he opines fell significantly below the standard reasonably expected of a medical practitioner; 2. Patient D - at p20, item 14 which he opines fell significantly below the standard reasonably expected of a medical practitioner; 3. Patient E - at p22, item 23 which he opines fell significantly below the standard reasonably expected of a medical practitioner; 4. Patient F - at p25, item 32 which he opines fell significantly below the standard reasonably expected of a medical practitioner noting specifically that the "long term and large quantities of prescribing makes abuse, trafficking and suicidal risk significant issues that should have been addressed"; 5. Patient G - at p28, item 41 which he opines fell significantly below the standard reasonably expected of a medical practitioner; 6. Patient H - at p30, item 49 which he opines fell significantly below the standard reasonably expected of a medical practitioner; 7. Patient I - at p32, item 58 which he opines fell significantly below the standard reasonably expected of a medical practitioner; and 8. Patient J - at p34, item 65 which he opines fell significantly below the standard reasonably expected of a medical practitioner.
6. We accept the submission of the HCCC in relation to Complaint Three. Throughout these reasons we have recorded the opinion of Dr Relf as to the inadequacy of the medical records kept by the respondent as he considered the particular questions asked of him by the HCCC.
7. We are satisfied that Complaint Three (2nd Complaint Three), as above set out, is established.

COMPLAINT FOUR

1. In the Application, Complaint Four is stated as follows: "is guilty of unsatisfactory professional conduct under section 139B(1)(c)(i) of the National Law in that the practitioner has engaged in conduct that contravened (whether by act or omission) a condition to which the practitioner's registration is subject."
2. The Complainant also contends that the Respondent is guilty of unsatisfactory professional conduct under section 139B(1)(c)(i) of the National Law in that the practitioner has engaged in conduct that contravened (whether by act or omission) a condition to which the practitioner's registration is subject.

Particulars 1-3

1. The particulars of Complaint Four are that the respondent breached Condition 3 imposed on his registration on 23 May 2016 by: "1. On 30 November 2016, prescribing Reandron (a Schedule 4D drug) to Patient K; 2. On 12 December 2016, prescribing Oxazepam (a Schedule 4D drug) to Patient L; and 3. On 31 March 2017, prescribing Reandron (a Schedule 4D drug) to Patient M."
2. The practice conditions are at TAB 7, p10 at [2] and [3] of exhibit A1 and took effect from 23 May 2016 (TAB 7, p2, first unnumbered paragraph). The conditions prevented the respondent from prescribing S8 and/or S4 drugs.
3. In respect of Patients K, L and M, the relevant scripts are respectively at TAB 59, p1, TAB 60, p1, and TAB 61, p1 exhibit A1. The respondent admits the issue of each of the prescriptions (TAB 48, p2, at [7] exhibit A1). The respondent says through his solicitor that, "The first time he became aware of Reandron being a prohibited medication (i.e. his conditions prohibited him prescribing it) was when he received a letter from MCNSW dated 10 May 2017". He provided an explanation as to how this slip took place and apologised for his oversight.
4. The respondent's version of events is also set out at TAB 48 exhibit A1. With the prescription of Oxazepam, the respondent asserts that it was done in error, by reason of a failure to check scripts that had been printed off by his staff.
5. The HCCC asserts that each of the prescriptions constitutes a breach. Given the context in which the conditions had been placed on the respondent (including that he had a previous section 150 hearing for breach of conditions, being a positive test for Codeine, as well as failed attendances for EtG and urine drug testing - see TAB 7, p3 exhibit A1), the respondent's subsequent breach of conditions on three occasions is serious.
6. We find that this complaint is made out. However, we do accept that the respondent was endeavouring to comply with the condition and his explanation for his failure is plausible.

COMPLAINT FIVE

1. The application document sets out this complaint 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; 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. PARTICULARS OF COMPLAINT FIVE 1. Complaints One, Particulars 1 and 3 are repeated and relied upon individually. 2. Complaints Two, Particulars 1 to 7 are repeated and relied upon individually. 3. Complaints One to Four and the particulars thereof are repeated and relied upon cumulatively."
2. This Complaint wraps up many of the earlier complaints and requires the Tribunal to consider the aggregation of the findings which have been made in relation to those complaints. Section 139E is relied upon by the HCCC to ground the order it seeks for the cancellation of the respondent's registration as a medical practitioner, should he currently be so registered.
3. The HCCC submits that the respondent is not contesting the proceedings. He admits a number of the particulars of the conduct, including with respect to failing to keep a drug register in respect of Schedule 8 drugs, self-prescribing of a Schedule 4D drug, the treatment of close personal relatives, renewals of prescriptions without consultations, poor record keeping in respect of patients, and breaching practice conditions. No substantive answer or explanation is provided in respect of his prescribing Schedule 4D and/or Schedule 8 drugs over a significant period of time to a number of patients, and in particular without appropriate authority. He denies the allegations of self-administering morphine, and or administering morphine to Patient A, but for the reasons above, Patient A's evidence in this regard should be preferred.
4. In determining whether a finding can be made of professional misconduct, the HCCC submits the Tribunal must determine whether as outlined in Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99 at [18] "when the Respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration".
5. The HCCC submits the respondent's conduct was of such a nature that the unsatisfactory professional conduct displayed by him falls within the definition of "professional misconduct" pursuant to s 139E of the National Law. Accordingly, on the above facts and in accordance with the respondent's admissions, the Tribunal should find that the respondent is guilty of professional misconduct pursuant to s 139E of the National Law.
6. We accept that the respondent has made the admissions listed by the HCCC in the previous paragraphs. We have made findings in relation to the earlier counts as set out in these reasons. We have accepted some of the evidence of Patient A as establishing Complaints and we have made no finding adverse to her credit. There is nothing inherently unbelievable in the evidence she gave. To the extent that we have been unable to make some of the findings urged by the HCCC based primarily upon the evidence of Patient A, it has occurred because that evidence has not been specific enough to meet the evidentiary burden which is required.
7. We are satisfied the HCCC has established this Complaint.

DETERMINATION OF PROCEEDING

1. The HCCC in their written submission provided the following in relation to the jurisdiction which this Tribunal is asked to exercise in this determination.

Nature of Jurisdiction "i. The nature of the jurisdiction of the Tribunal is not to punish the Respondent, but to protect the public and to maintain proper standards in the profession of the practice of medicine. ii. In Clyne v New South Wales Bar Association [1960] HCA 40 at 201-202, the High Court said: "Although it is sometimes referred to as the 'penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege." iii. As observed by Basten JA in Prakash v HCCC [2006] NSWCA 153 at [91]: "The purpose of any order consequent upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However the public interests include indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards...of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognize the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted." iv. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to s3A of the National Law."

1. We accept the submission made by the HCCC as set out above.
2. The HCCC submits that the conduct of the respondent is of a sufficiently serious nature to warrant the cancellation of the respondent's registration. We accept that submission. We find that given that the respondent has voluntarily removed himself from the register, in practical terms, limited alternative options are available to the Tribunal.
3. As set out earlier in these reasons, complaints are brought by the HCCC under each of subsections 139B(1)(a) and (l) of the National Law. Subsection (l) requires a determination by the Tribunal of whether the respondent's conduct demonstrates improper or unethical conduct relating to the practice or purported practice of medicine and is therefore unsatisfactory professional conduct. The National Law does not define the words "improper" and "unethical".
4. As can be seen, we have found that the complaints brought by the HCCC have been established where we have so stated.
5. The HCCC submits the conduct in respect of Complaint One involved a flagrant breach of standards. We accept that submission in relation to Particulars 1 and 3.
6. The conduct in respect of Complaint Two, with respect to Patient A, involved the prescription of drugs that affected the central nervous system and/or drugs of addiction to a de facto partner. The prescription was not for therapeutic purposes but, as the expert opined, "largely invoked for the relationship" (TAB 13 at p3 exhibit A1). The administration of morphine, in the manner we accept it was applied to Patient A and the respondent, is characterised by Dr Relf as an "abuse of power" (TAB 13 at p6 exhibit A1). Patient A had the care of a child at the time. Doing so in the context of sharing needles carried with it serious risks of harm. Each of these matters were, in Dr Relf's opinion, significantly below the standard reasonably expected of a medical practitioner and invites strong criticism. The treatment of his mother, Patient B, which occurred over a significant period included, on the respondent's version of the events, the possible administration of narcotics, resulting in a situation that "put his mother into dependence on strong medication or this became a source of medication for himself, likely in the knowledge that his mother would not testify against him." (TAB 13 at p11 exhibit A1).
7. The conduct in respect of Complaint Three involved prescriptions over a significant period of time, ranging from 3-5 years. As identified, no substantive explanation is provided by the respondent in relation to this conduct. Many instances of that conduct were, in Dr Relf's opinion, significantly below the standard reasonably expected of a medical practitioner, including, as to the respondent's overall record keeping. No response is before the Tribunal concerning the issue of potentially defrauding Medicare, which in itself, is a significant matter.
8. We find that the HCCC has established the complaints brought against the respondent upon the evidence provided by the HCCC, to the extent that we have made the findings set out herein.

Appropriate Protective Orders

1. The Commission submits that given the gravity of the conduct, the appropriate order for the Tribunal to make is disqualification of the Respondent's registration.
2. The Complainant seeks the following Orders: "1. pursuant to s 149C(4)(a) of the National Law, order that if the respondent were still registered, the Tribunal would have cancelled the respondent's registration; and 2. pursuant to s 149C(4)(b) of the National Law, order that the respondent be disqualified for a period of two years; and 3. pursuant to s 149C(4)(c) of the National Law, the Tribunal requires the National Board to which the person was registered to record the fact that the Tribunal would have cancelled the Respondent's registration in the National register kept by the Board."
3. The HCCC submits the Tribunal must consider current unfitness to practise rather than focusing on a determination of probable permanent unfitness in making a cancellation order as held in Health Care Complaints Commission v Dr Jamieson [2014] NSWCATOD 56 at [102] and Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31.
4. Further the HCCC submits, relevant to the issue of unfitness, is the question of insight. If the Tribunal finds proven those parts of the Complaint concerning self-administration of morphine, intentional self-administration of medications prescribed to Patient B, or the administration to Patient A of morphine, it necessarily follows that the respondent has demonstrated no insight or contrition for his conduct.
5. The Commission submits that the respondent's conduct in the present case is clearly serious and capable of attracting a cancellation order.
6. In Spicer v New South Wales Medical Board & Ors (Court of Appeal (NSW), 19 February 1981, unrep), Hope JA, with whom Reynolds and Huntley JJA agreed, observed (at 5, 6): "In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way which is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner."
7. In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA at paragraphs 20 to 21 considered the exercise of powers by Tribunals to make protective orders and concluded: "Essential to a proper assessment of a Tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards."
8. As observed by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted."
9. The Commission submits that the respondent's conduct in the present case is clearly serious and capable of attracting the protective orders as outlined above.
10. We have carefully considered the submissions of the HCCC, together with the evidence we have accepted in this matter and we accept, that it is appropriate to make the protective orders sought by the HCCC. We find the case established by the evidence we have accepted in this matter overwhelmingly requires the imposition of the protective orders sought by the HCCC.
11. The HCCC requested that there be a non-publication order made in relation to the names of any of the patients who provided evidence to the Tribunal through their statements and also for any of the names of patients which appear in any document provided to the Tribunal as part of the evidence tendered in this hearing.
12. The Tribunal accordingly makes the protective orders set out at the commencement of these reasons.
13. An order will also be made requiring the HCCC to forward to the respondent's former solicitor Ms Priestley a copy of the protective orders made by the Tribunal together with a copy of these reasons for the making of the protective orders.

COSTS

1. The HCCC applies for an order for its costs to be paid by the respondent. It does so notwithstanding that there may be difficulty in collection of any costs order made. There is no evidence before the Tribunal in relation to the financial circumstances of the respondent and in any event the relevance of same to a costs order being made, in this jurisdiction, appears marginal at best.
2. The Commission submits that the Respondent should be ordered to pay the Complainant's costs.
3. An order for costs is discretionary.
4. Clause 13 of Schedule 5D of the National Law states: Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate.
5. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342, Meagher JA, Emmett JA and Beech-Jones J held at paragraphs 44 and 46 in relation to costs orders and the consideration of a Respondent's individual financial circumstances: "… It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. … The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. In all of the circumstances, I consider that the exercise of the discretion on the part of the Tribunal miscarried. The direction made by the Tribunal that there should be no order as to costs should be set aside."
6. There are no matters that arise in these proceedings that displace the ordinary presumption that costs should follow the event. The conduct complained of necessitated the bringing of proceedings against the respondent. Accordingly, the Commission submits that it would be appropriate for a costs order to be made in these proceedings.
7. Accordingly, the Commission submits that it would be appropriate in the present proceedings for the Tribunal to make an order as to costs in favour of the Commission.

Determination of costs application

1. In relation to the appropriate costs order to be made, we have considered the necessity for the Tribunal to have heard the Complaint brought by the HCCC. In this case the evidence shows that the respondent has surrendered his registration as a medical practitioner and has advised the Tribunal, through his solicitor, that he has left the country and does not intend to practise as a medical practitioner in Australia in the future.
2. The assertion that he does not intend to practise in Australia again carries with it no absoluteness of that event. He could, in the future, change his mind and apply for registration. If that were to occur, it is reasonable for the HCCC to oppose his registration, as with other relevant bodies. At the time of such happening, it may be that relevant witnesses and documents which have been available to us in this proceeding are no longer available. As such, we consider it was appropriate, if not necessary, for the protection of the public, for the HCCC to have proceeded with this action.
3. Additionally, there must be an obligation to other jurisdictions/countries where the respondent may apply to be registered as a medical practitioner. In such circumstance, it is reasonable to expect that the relevant authority in such jurisdiction/country would inquire of the Australian authorities as to the prior record of the respondent as a medical practitioner. If that were to occur, it would be important for the Australian authorities to be able to advise that his registration had been cancelled following action brought against him.
4. For those reasons we will make the costs order sought by the Complainant.

ORDERS 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law, it is declared that if Dr Louis Albert Whitton (the practitioner) had been registered at the date of the hearing, the Tribunal would have cancelled his registration. 2. Pursuant to s 149C(4)(b) of the National Law, order that the respondent be disqualified for a period of two years. 3. Pursuant to s 149C(4)(c) of the National Law, the Tribunal requires the National Board to which the respondent was registered to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board. 4. The Health Care Complaints Commission is to cause a copy of this order and a copy of the judgment delivered in this matter to the respondent's former solicitor Ms Priestley, with a request that she forward same to the last known email address she holds for the respondent. 5. The practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed, and failing agreement, as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 6. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made restricting the publication of the names of the patients set out in the schedule to the complaint filed on 16 July 2019.

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: 19 November 2019