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[2021] SACAT 47
SA Civil and Administrative Tribunal
2021-09-14
Mr J
Original judgment source is linked above.
Medical Board of Australia v Holder [2021] SACAT 47
The Medical Board of Australia referred a complaint to the Tribunal alleging that the respondent committed professional misconduct. The alleged professional misconduct included a conviction for attempting to murder a pharmacist who had made a notification to AHPRA. It also included inappropriately prescribing schedule 4 drugs, knowingly and deliberately providing misleading information to the Board, and inappropriately prescribing medication to his wife and himself.
The respondent admitted that his actions in attacking the notifier with a knife constituted professional misconduct but denied that he intended to murder the notifier. He also denied that his prescribing of schedule 4 drugs and drugs to his wife and himself were inappropriate and constituted professional misconduct. He admitted that his conduct in misleading AHPRA amounted to professional misconduct.
Health practitioners - Complaint by the Medical Board of Australia - Professional misconduct - Attempted murder conviction, Inappropriately prescribing schedule 4 drugs, Knowingly and deliberately providing misleading information to the Board, Inappropriately prescribing drugs to his wife and himself - Registration cancelled, Disqualified from applying for reregistration and prohibited from providing a health service for 25 years, Reprimand
Health Practitioner Regulation National Law (South Australia) Act 2010 s 11, Schedule 2 s 193
R v Holder [2019] SASCFC 73
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Rajagopalan v Medical Board of South Australia [1997] SASC 6363
Rajagopalan v Medical Board of South Australia [1998] SASC 7142
General Medical Council v Spackman [1943] AC 627
Nursing and Midwifery Board of Australia v Freeman [2020] SACAT 88
Marin v Chiropractic Board of Australia [2020] SASCFC 74
Medical Board of Australia v Sze-Tho [ 2019] VCAT 244
The Tribunal prohibits the publication of the names of, or anything tending to identify, the patients referred to in the evidence before the Tribunal.
1. Brian Holder (the respondent) is a former medical practitioner. He is currently serving a sentence of imprisonment for the offence of attempted murder. His registration has been suspended since 25 October 2017.
2. The Medical Board of Australia (the Board) alleges that the respondent has behaved in a way that constitutes professional misconduct and has referred that allegation to the Tribunal under s 193 of the Health Practitioner Regulation National Law (South Australia) (the National Law).[1]
3. By way of summary, the Board alleges that the respondent:
1. attempted to murder a pharmacist who had made a notification to the Australian Health Practitioner Regulation Agency (AHPRA) concerning the respondent's professional practice (the notifier);
2. inappropriately prescribed schedule 4 drugs (benzodiazepines and codeine-containing medicines) to various patients;
3. knowingly and deliberately provided misleading information to the Board in response to the notification; and
4. inappropriately prescribed medication, including benzodiazepines to his wife and himself.
4. Overall, the respondent admits professional misconduct, but there is a dispute about some of the allegations:
(a) As to the attempted murder, the respondent continues to maintain that he had no intention to murder the notifier. However, he has been convicted in the Supreme Court of that offence and concedes that the Tribunal is entitled to adopt that finding. Furthermore, his actions in attacking the notifier with a knife undoubtedly constitute professional misconduct and he does not argue otherwise.
(b) The respondent denies that his prescribing constitutes professional misconduct. He submits that it was appropriate prescribing.
(c) The respondent admits that he provided misleading information to the Board and concedes that this constitutes professional misconduct.
(d) The respondent does not admit that his prescribing for his wife or himself constitutes professional misconduct. He concedes that he did so in breach of the relevant Code of Conduct but argues that his prescribing was appropriate.
6. The book of documents contained an "Agreed Statement of Facts and Contentions".[4] We did not find it particularly helpful to have the agreed facts and disputed matters interspersed in one quite complicated document, but it was clear on close examination what had been agreed.
7. The book of documents also contained other material which has informed our findings. It included the documentary evidence upon which the Board relied. It also included an affidavit sworn by the respondent on 10 May 2021.[5] The parties had taken a pragmatic approach to the basis upon which this was tendered. It was agreed that respondent was not to be called to give oral evidence but that was not to be taken as acceptance by the Board of his evidence. His affidavit was to be given the weight that appeared appropriate on the whole of the evidence before the Tribunal. Such an approach was somewhat unusual, but in the overall context of this matter, it was not inappropriate.
8. Due perhaps to the conviction and incarceration of the respondent and the likely implications professionally, the prescribing allegations had not been investigated in the normal manner. The Tribunal has been presented with less information than would normally be expected in such a matter.
9. Furthermore, the complainant has chosen to confine its formal allegations to a small number of prescriptions, occurring over a short period. It has not presented any expert evidence in support of the allegations. This makes the assessment of such allegations more difficult and is not an approach that we would endorse as appropriate in the normal course.
10. The standard of proof in these proceedings is proof on the balance of probabilities, having regard to the Briginshaw[6] principle. We have regard to the seriousness of the allegations and the potential consequences for the respondent. Whilst the attempted murder charge has been found proved beyond reasonable doubt in the Supreme Court, these factors still inform our consideration of the remaining allegations. On this basis, we are comfortably satisfied of the findings that we make.
11. We make findings in accord with the agreed facts. Our further findings will be apparent from what follows. The various allegations are interrelated, but it will be convenient to arrange our findings under some loose headings.
12. The respondent was tried by judge alone in the Supreme Court in November 2018. He was convicted of attempted murder. He was sentenced to imprisonment for 15 years with a non-parole period of 10 years. The sentence was backdated to 10 October 2017 which was the date he was taken into custody. The findings and sentence were subsequently affirmed by the Court of Criminal Appeal.
13. We have before us the transcript of evidence in the trial, some exhibits and victim impact statements tendered to the Court, and the judgement and the sentencing remarks. Pursuant to s 11(2) of the Health Practitioner Regulation National Law (South Australia) Act 2010, we are entitled to draw any conclusions of fact from the evidence that we consider proper. We are also entitled to adopt, as in our discretion we consider proper, any judgement or findings of the Court.
14. The Supreme Court material not only assists the Tribunal in determining the attempted murder allegation. It also throws light on some of the other matters for determination by the Tribunal. We shall return to such matters in due course.
15. We find it appropriate to adopt in their entirety the findings and remarks contained in the judgement[7] and the sentencing remarks.[8] We adopt the formal finding of guilt and the conviction for attempted murder. We find the allegation of attempted murder proved in these disciplinary proceedings and we adopt the learned judge's reasons for so finding.
16. In summary, the Court found the following facts to be proved. In 2017, the respondent was working as a medical practitioner in a general practice at Reynella, south of Adelaide. He had worked within that practice for many years. He lived in an Adelaide suburb.
17. The notifier was 28 years of age. She worked as a pharmacist in Port Lincoln. On a day in April 2017, she dispensed eight prescriptions, each written by the respondent, for eight individual aboriginal women, who all resided in Port Lincoln. Computer records indicated that all eight women had local doctors and the notifier knew that the respondent was based in Adelaide. The prescriptions were all for high quantities of diazepam and oxazepam (which are benzodiazepines) and Panadeine Forte (which contains codeine). Most of the prescriptions were endorsed by reference to "regulation 24" which endorsement gives authority to the pharmacist to dispense at the one time the initial script as well as any repeats. Many of the scripts were endorsed as "Non PBS" (or private scripts) which meant that no Government subsidy was to be paid. This meant that the cost to be borne by the patient would be higher, but the prescribing would be harder for the authorities to trace.
18. The notifier made a notification to AHPRA regarding these prescriptions. In doing so, she authorised release of her name to the respondent. Later the notifier was asked to forward a copy of the respondent's dispensing history at the Port Lincoln pharmacy, which was lengthy.
19. In late June 2017, AHPRA sent a copy of the notification to the respondent and advised him that it had resolved to conduct an investigation. The notification contained the notifier's full name and later the identity of the pharmacy was also provided to the respondent. The respondent was invited to meet with the investigator.
20. On 19 July the respondent and his representative from Avant Law met with representatives of AHPRA.[9] The respondent provided a document dated 13 July 2017 in response to the notification.[10] He indicated in the document that he was 'deeply embarrassed by my action which is out of character with my normal prescribing".
21. Subsequently, the respondent was advised by letter from AHPRA dated 22 September 2017 that the Board was proposing to impose conditions on his registration.[11] Submissions were invited. The letter referred to his prescribing to the patients identified in the notification "and numerous other patients". It referred to histories received from "pharmacies close to his place of practice" and to "a pattern of excessive prescribing of schedule 4 medicines".
22. Four days later, the respondent made an on-line booking at the Port Lincoln Hotel for the nights of 8-10 October. The following day, he made a booking at the Novotel Barossa Valley Resort, near Tanunda.
24. On 8 October, the respondent checked in to the Novotel Barossa Valley Resort. He called the Port Lincoln Hotel to advise that he would not be arriving until the following day.
25. On 9 October 2017 at about 3.22pm he checked in to the Port Lincoln Hotel. He had with him a filleting knife with a blade of about six inches, still in its packaging. That afternoon, he went to the shopping Centre where the pharmacy was located and sighted it.
26. The next morning, he drove past the notifier's house, having previously instructed and paid a private detective to ascertain her address. He made a telephone call to confirm where the notifier was working that day. He later went to a florist and purchased a bouquet of flowers. At 2.42 pm he attended the Post Office and sent an Express Post package to his wife. It contained a suicide note and some financial records.
27. He subsequently attended at the reception of the Port Lincoln hotel and sought assistance to open the packaging containing the knife. While putting the knife back into its sheath, he said "It's not like I'm going to stab anyone with it".
28. He went to the pharmacy at about 5.00 pm, carrying the flowers and with the knife concealed under his suit coat. It is relevant to note that neither he nor the notifier knew the other by sight. He asked an attendant for the notifier. He was told that she was on the phone but would be available shortly. He waited near the door of the pharmacy. When the notifier approached him, he said that he had flowers for her. He then pulled out the knife and attempted to stab her. She fought back. A struggle occurred between them in which the notifier sustained three lacerations and bruising and swelling to her left arm and hand. The Judge described these as "defensive injuries". A customer of the pharmacy intervened by grabbing the respondent from the rear. The respondent then ran from the pharmacy to his car and drove away. The events within the pharmacy were caught on CCTV footage by three cameras.
29. The respondent returned to his room at the Port Lincoln Hotel where he self-administered a number of insulin injections and some other drugs. Police officers found him there shortly afterwards, barely conscious. A further (shorter) suicide note was found in the room. He was taken to the Royal Adelaide Hospital.
30. The respondent denied in the Supreme Court proceedings that he had any intention to murder the notifier. He gave evidence that he had entertained suicidal ideation throughout his life. When he received the notification, he thought it would virtually end his practice and that he would most likely kill himself. He stated that he was "a little bit angry" with the notifier but understood why she had acted. He said he did not have any feelings about her personally. About two weeks before 10 October 2017, he thought of going to Port Lincoln to confront her and explain what effect her actions had had. He had in mind to "make her feel a little bit guilty", but he said at no stage did he think of killing her or indeed harming her. When he entered the pharmacy, he had no intention of using the knife against the notifier.
31. The Supreme Court essentially rejected the respondent's exculpatory evidence. The judge referred to aspects of his evidence which demonstrated his preparedness to be untruthful. She stated:[14]
I considered the accused to be an obviously intelligent man who had thought carefully about his account of events. However, I considered his explanations for his conduct leading up to 10 October to be implausible, and his account of the event itself to be contradicted by the CCTV footage. That shows violent and repeated strikes at [the notifier's] body with the knife. It shows that the attack commenced as soon as [the notifier] presented herself to the accused. It demonstrates that the accused was single-minded and determined.
Findings
I am satisfied beyond reasonable doubt that the accused went to the Liverpool Street pharmacy with the intention of killing [the notifier]. I am satisfied beyond reasonable doubt that once there, he put into action the plan he had developed, and followed it. I reject his sworn denials to the contrary. He was only prevented from fulfilling his aim by the victim's strength and determination to ward him off, and by the intervention of the customer whom I mentioned earlier. While [the notifier] sustained only minor injuries, that was not because of a want of determination on the accused's part; his own physical limitations hampered the fulfilment of his scheme.
...
... on the basis of the powerful evidence provided by the CCTV footage, combined with all the other evidence, I am satisfied that the accused formed a profound resentment towards [the notifier] and carefully formulated a plan over a period of a couple of weeks to attack and kill her with the lethal weapon purchased, I find, solely for that purpose.
32. The judge's findings were comprehensively affirmed by the Court of Criminal Appeal.[15]
33. In her sentencing remarks, the judge stated:[16]
That a person with your education, background and record of serving the community could plan and execute this event is extraordinary. It suggests to me that there is some underlying pathology in you which remains undiagnosed. On the face of it, there appears to be a moral dimension missing. Your own evidence that you had always felt unconnected with the world provides some sort of insight as to that. I have been given a report by Dr Raeside which addresses this issue. He diagnoses you as having a schizoid personality disorder and/or autism spectrum disorder. He sees your crime as arising from the stressors upon you in the weeks leading up to the crime. Dr Raeside puts the crime down to these stressors and expresses the view that, now they are removed, there is a "low risk" of further offending. I do not consider that Dr Raeside is aware of the full details of your crime. Certainly, he does not have my findings. That is not to criticise anyone, but rather to explain why I cannot accept his opinion, either that you are remorseful or that there is a low risk of reoffending. There was no hint of remorse in your evidence. In my view, the risk you pose in the future cannot be quantified. Whatever the reason for your crime, I have reached the conclusion that you are and will remain a dangerous man.
I take into account all the submissions made by your counsel, Mr Boucaut SC. I particularly have regard to your various medical conditions which will present some challenges while you are serving your sentence.
I see this crime of attempted murder as falling within the higher end of the scale of such crimes. Although the physical injuries suffered by the victim were not really serious, she will be psychologically scarred, perhaps forever and there is some significant residual physical deficiency in her left hand, as well as prominent scarring. That she should receive this treatment on account of her fulfilling her duty as a pharmacist is appalling.
34. To state the obvious, the behaviour of the respondent in attempting to murder the notifier constituted professional misconduct of a most serious kind. It was conduct entirely inconsistent with the respondent being a fit and proper person to be registered as a medical practitioner.
35. As indicated earlier, the prescribing conduct is inevitably over-shadowed by the attempted murder. However, we regard it as very serious in its own right.
36. The allegations in the complaint relate to prescriptions given to five aboriginal women in April and May 2017. However, the evidence provided a broader background to that prescribing.
37. The respondent gave evidence in the Supreme Court that there was a group of 20-30 aboriginal people (mainly women) from Port Lincoln who attended at his practice at Reynella and asked to be prescribed medicines that they claimed were normally prescribed to them by their doctors.[17]
38. They would sometimes claim that they were going "into the outback" and they wanted to take enough medicine to last.[18] That explained, he said, why some of the prescriptions had the Reg 24 endorsement.
39. He understood that he was a "high prescriber" of benzodiazepines and codeine-containing medicines.[19] He knew that AHPRA would take very seriously his level of prescribing and their investigation could result in the end of his practice.[20] An inability to prescribe such drugs would at least initially have had a significant impact on his practice.[21]
40. He said that he had provided non-PBS (private) prescriptions to aboriginal patients "because that is what they ask for". He agreed that such prescriptions were "less likely to be traced". He stated that perhaps 50% of the aboriginal patients had private scripts compared to about 2 or 3% of his local patients.[22] These were disadvantaged people. The only reason for private scripts would appear to be to avoid scrutiny by the authorities. The patients' willingness to pay extra for private scripts may reflect the possibility that the medicines were being sold to others. It certainly suggests that the patients were highly motivated to preserve this source of supply.
41. The aboriginal patients were bulked billed by the respondent. The cost of the consultations was met from public funds. The respondent benefited from those payments.
42. The complainant relied heavily on Clinical Practice Guidelines published by the Royal Australian College of General Practitioners (RACGP), as providing evidence of the standards accepted and applied in the profession. Specifically, reliance was placed on a suite of guidelines entitled "Prescribing Drugs of Dependence in General Practice (RACGP Guidelines).[23]
43. The Tribunal was also invited to bring its own professional knowledge and expertise to bear on that issue. We noted that some of the RACGP Guidelines were published in October 2017 (a few months after the prescribing in question), but the Tribunal was of the view that they stated principles that had been well-accepted and followed within the profession for a significant time prior to that prescribing. There had been earlier guidance to similar effect. The Tribunal indicated this preliminary view to the respondent's counsel during the hearing and he confirmed that the respondent did not take issue with it. We find that the RACGP Guidelines accurately reflect the views generally accepted and followed by competent practitioners at the relevant time.
44. In relation to benzodiazepines, we have regard to the "Key principles" set out in the guidelines at pages 653-654 of Exhibit C1. Benzodiazepine use (and particularly prolonged use) carries with it serious risk of harm. GPs should be aware of known harmful effects. Prescription should be based on a comprehensive medical assessment, a diagnosis, and a thoughtful consideration of the likely risks and benefits. Alternative interventions should be considered, a management plan developed and followed, and arrangements made for clinical monitoring. For the above reasons, and to prevent abuse, benzodiazepines should be prescribed from one practice and dispensed from one pharmacy. GPs should develop strategies to manage inappropriate requests by patients. They should be alert to drug-seeking behaviours, such as patients asking for specific drugs or seeking drugs from more than one source.
45. To minimise risks, benzodiazepines should be prescribed at the lowest effective dose and for the shortest clinical timeframe. They are generally regarded as a short-term option and use beyond 4 weeks should be uncommon. Prescriptions should be avoided in cases of alcohol or substance abuse disorders or polydrug use.
46. Almost identical principles apply in relation to the prescription of opioids.[24]
47. Where multiple providers are involved in the care of a patient, co-ordination in relation to opioid prescription is important.[25] Codeine is subject to misuse and dependence and associated with fatal overdoses. Its use should be closely monitored. There is no role for the use of codeine in chronic pain.[26]
48. The concomitant use of benzodiazepines and opioids should be avoided.[27]
49. With these principles in mind, we turn to consider the respondent's prescribing. It is fair to say that the respondent rejects the accepted views as to the prescription of the medications in question. In his Supreme Court evidence, he stated that there was no harm in taking benzodiazepines for a long period.[28] He agreed that benzodiazepine was highly addictive but stated that dependency on such drugs was not harmful.[29] His only concession was that such drugs might be misused in some cases.[30] He indicated that he had many patients to whom he had prescribed such medications on a long-term basis.[31] He said that he was using the same prescriptions he had been using for 40 years. He knew that the views of the medical profession and the government had changed, and his approach was no longer regarded as appropriate.[32] He stated:
A. ... I mean, I'd known for years that there was a tendency to go against these medications and in fact the government I believe a year or so, stopped the sale of over-the-counter codeine. So it was a complete change in attitude over a few years from what I've been doing for 40 years.[33]
50. With respect to his prescription of 240 Panadeine Forte tablets per month to some of the aboriginal women, he was asked:[34]
Q. But you were supplying them with large numbers of tablets. These drugs were taken in tablet form -
A. Well, a month's supply at 8 tablets a day is a fair number of tablets. I mean, that's 240 tablets.
Q. So it's obviously left to the patient's discretion as to how many of those 240 tablets they take in a day.
A. Yes
Q. And it was also, and you weren't aware, were you, left to the patient's discretion as to whether they'd share or distribute those tablets with others.
A. I don't have any control over that. Once I've made a decision that they have appropriate medical conditions to warrant this medication ..."
51. On a similar note, he was earlier asked:[35]
Q. Did you ever feel that these aboriginal women were seeking you out so that they could get these drugs
A. Yes, I thought of that on many occasions. But they had appropriate medical histories and there were notions that I felt justified the prescriptions, which I felt would make their lives better.
52. The respondent also agreed in evidence that he had been prescribing for the group of Aboriginal women for "a couple of years" and that he regarded such prescribing as "entirely appropriate".[36]
53. Similar views were expressed by the respondent to health practitioners who interviewed him in the context of the criminal proceedings. For example, he advised Professor Robyn Young that he disagreed with the current medical thinking in relation to the prescribing of benzodiazepines and that he remained convinced that there was no harm in prescribing them.[37] He advised Dr Craig Raeside that he disputed any major problems with the long-term use of benzodiazepines or codeine and disagreed with current medical thinking in that regard. He saw diazepam like insulin - "a daily medication to keep them well". He saw no problem with a patient taking diazepam 5mg three times a day for the rest of their life. He saw no reason for a patient to come off this medication.[38] We accept that the respondent made these statements and that they have been accurately reported. We reject later attempts by the respondent to give the comments a different emphasis or meaning.
54. The respondent's views as to use of these medications are repeated (in perhaps a more sanitised way) in his affidavit sworn 10 May 2021. His views may be genuinely held, but that does not make them right or acceptable. No expert or documentary evidence is called to support his views.
I occasionally saw patients from outside my geographical area. ...
These patients often indicated that they were prescribed certain medications by their local doctors and requested me to provide them with the same medications while they were staying away from their local area.
The histories of these patients would usually consist of some combination of dysfunctional family upbringing, physical, mental and or sexual abuse and chronic painful injuries from physical abuse, which was often ongoing with associated anxiety and fear, especially from male partners who had already been incarcerated.
As a general rule of practice, I accepted a patient's history unless there was significant evidence to the contrary.
56. We turn then to consider the patients and prescriptions identified in the complaint.
57. Patient 1 was an aboriginal woman and the niece of another patient. She attended on the respondent on 11/11/2014, 20/3/2015, 19/5/2015, and 14/7/2015, and on each of these occasions was prescribed oxazepam 30mg, 3 times a day prn, diazepam 5mg, 3 times a day prn, and Panadeine Forte 500mg, two tablets four times a day prn. The only reason to be discerned from the notes was reference to "r index finger fully flexed following injury 10 years ago. Refer to fmc plastics. Says rh a, chronic pain is on same meds as aunt", "chronic pain, anxiety" and "domestic violence victim".
58. On 30/9/2015 Patient 1 attended upon the respondent's colleague who noted in the patient records: "Dr Shopper, not on books".
59. Notwithstanding this, on 23/11/2015, 15/1/2016 and 17/2/2017 the respondent prescribed the same combination of medicines as previously, noting nothing of relevance except "domestic violence victim. finger", and, on one occasion: "talk says has not had medication since last visit. 'It's been a struggle'."
60. On 6/4/2017 the respondent issued the prescriptions charged in the complaint. The first was for Panadeine Forte 500mg, 140 tablets with one repeat. The instructions were to take two tablets, four times per day prn. The second was for oxazepam 30mg, 100 tablets with one repeat. The instructions were to take 3 tablets per day prn. (The respondent also prescribed diazepam 5mg, to be taken three times a day, but that prescription was not included in the complaint.) Apart from recording the prescriptions, the notes only stated: "11/7 early for tablets. Advised. chat tabs Reason for Visit: Domestic Violence".
61. Both of the prescriptions were endorsed "Reg 24", meaning that the repeat order could be dispensed immediately.
62. On her previous visit (17/2/2017) the patient had been given prescriptions for oxazepam which ought to have lasted 66 days, if she had taken the maximum dose allowed. She had returned after 48 days and ought to have still had 18 days' supply. Notwithstanding this, the patient was on 6/4/2017 given immediate access by the respondent to a further 200 oxazepam tablets. Similarly, she ought to still have had 12 days' supply of Panadeine Forte, but was given immediate access to a further 480 tablets. In all of the circumstances, including the note of the respondent's colleague, this prescribing was irresponsible and such as to facilitate abuse.
63. Looking at the notes overall (November 2014-June 2017), at no point do they record any physical examination of the patient, any relevant diagnosis, any rationale for the prescriptions, or any management plan. There is no suggestion that the respondent attempted to contact the respondent's local GP in Port Lincoln or to ascertain what medications she was getting from other sources. There is no indication that the respondent considered the potential harmful effects of his prescribing or counselled the patient in that regard. He could hardly have done so adequately as his own views about these matters were idiosyncratic and inadequate.
64. In his affidavit, the respondent contends that the Panadeine Forte was prescribed for finger pain and general chronic pain and the oxazepam for domestic violence and general anxiety. The only "assessment" he claims to have carried out was that:[41]
I noted that the patient had been assessed and prescribed these medications by previous practitioners. The patient provided an oral complaint and history indicating the above and I had no reason not to accept it.
65. In other words, he simply accepted the word of the patient that she had been prescribed certain medicines and gave her what she requested without conducting any adequate assessment or checking with her local practitioner. He took no steps to guard against misuse or manipulation. It is likely that he simply thought, as he stated in the Supreme Court, that the medicines would, in some unspecified way, make her life better. His approach was flawed and irresponsible. There was no proper indication for the prescribing. None of the medications should have been prescribed and the combination of opioids and benzodiazepines was particularly contra-indicated.
66. Patient 2 first attended the respondent on 23/3/2017 with another patient. The respondent noted: "she is locking herself in her room and crying...chronic back pain severe depression... Reason for visit: Anxiety/Depression back pain." The respondent prescribed diazepam 5mg, 100 tablets. The instructions were to take one per day prn. He prescribed oxazepam 30mg, 100 tablets with the instruction to take one per day. These were sufficient quantities to last well over three months. He also prescribed Panadeine Forte 500 mg, 100 tablets. The instruction was to take 2 tablets prn.
67. The patient returned on 3/4/2017 with the same companion. They both claimed that their scripts had been stolen. The respondent gave them replacement scripts for the same type and quantity of medication.
68. The patient returned on 3/5/2017. The notes indicate that she claimed to be "going to Qu tomorrow for 2/52 to see family". The reason for visit was recorded as "Anxiety/Depression back pain". The respondent wrote a script that is the subject of an allegation in the complaint.
69. He prescribed Panadeine Forte 500mg 100 tablets. The instruction was to take 2 tablets prn. He prescribed diazepam 5 mg, 100 tablets. The instruction was to take one per day prn. He prescribed oxazepam 30 mg, 100 tablets with instruction to take one per day.
70. This prescribing was highly irresponsible. The scripts for diazepam and oxazepam given on 3/4/2017 constituted a supply of each medicine that would last 3 months and 8 days. One month later the respondent has prescribed sufficient of the same medication to last a further period of 3 months and 8 days. The patient should still have had 62 day's supply still remaining from the previous script. There was no basis to give more. The script was marked "Non-PBS, meaning it was less likely to be detected by the authorities.
71. The irresponsibility is even greater, given the grounds to suspect that the initial script on 23/3/2017 may not have been stolen. On this scenario, the patient had been supplied within a period of 6 weeks with a sufficient quantity of each medication to last 300 days.
72. Despite all this, the patient returned again on 22/6/2017 (about seven weeks later) and the prescribing was repeated. This prescription was not included in the complaint, but it is relevant to assessing the respondent's mode of operation. Within 3 months, he had written scripts sufficient to last 400 days, assuming the patient took the maximum dose ordered.
73. Looking at the notes overall (March - July 2017), at no point do they record any physical examination of the patient, any relevant diagnosis beyond "back pain" and "severe depression and anxiety", any adequate rationale for the prescriptions, or any management plan. There is no suggestion that the respondent attempted to contact the respondent's local GP in Port Lincoln or to ascertain what medications she was getting from other sources. There is no indication that the respondent considered the potential harmful effects of his prescribing or counselled the patient in that regard.
74. The respondent claims in his affidavit that he prescribed codeine for the chronic back pain and benzodiazepines for her depression and anxiety. There was no proper indication for any of the medications to be prescribed on an ongoing basis. Codeine and benzodiazepines should not have been prescribed together. The respondent clearly conducted no assessment beyond accepting what the patient and her companion told him.[43] The respondent took no steps to guard against misuse or manipulation. Indeed, he facilitated such misuse.
75. Patient 3 first attended the respondent on 19/7/2016. She gave a history of emotional stress, domestic violence and a dysfunctional life, which the respondent noted in some brief detail. He prescribed Panadeine Forte, oxazepam, and diazepam.
76. She did not return until 16 March 2017. The respondent noted "talkn tabs" and the Reason for visit as: "Back pain". He prescribed Panadeine Forte 500 mg, 100 tablets with one repeat. The instruction was to take two tablets, four times per day prn. The respondent also prescribed oxazepam 30 mg, 100 tablets with one repeat. The instruction was to take one per day. He also prescribed diazepam 5 mg, 100 tablets, with one repeat. The instruction was to take one per day prn. The supplies of both benzodiazepines should have been sufficient to last for 100 days, or with the repeat, 200days.
77. On 28/3/2017 the notes record what appears to be a communication between the respondent and a pharmacist. It is noted that the patient says she is going bush for 3 months and wants the repeats early. This appears to have been approved by the respondent.
78. On 5 May the patient attended the respondent again. The reason for visit is recorded as "back pain, anxiety". The respondent prescribed the same medicines as on 16/3/2017 in the same quantities and again with one repeat. The prescriptions for oxazepam and diazepam are those referred to in the complaint. Panadeine Forte was also prescribed, but that prescription was not alleged in the complaint. The notes state: "2/52 early for tabs. Advised. No more till mid July."
79. This prescribing was also irresponsible. The patient had been given a supply of both benzodiazepines which should have lasted for 200 days from 16 March. On 5 May she should have still had 150 days' supply. Yet she was given a further prescription for 100 of each tablet, and a repeat of each. Furthermore, the script was marked "Reg 24", meaning that the repeat could be obtained immediately. The respondent had, within a period of 50 days, supplied the patient with access to enough tablets to last 400 days, if used as prescribed. The script was marked "Non-PBS" meaning it was less likely to be detected by the authorities.
80. Looking at the notes overall (July 2016-July 2017), at no point do they record any physical examination of the patient, any relevant diagnosis beyond "back pain, anxiety", any adequate rationale for the prescriptions, or any management plan. There is no suggestion that the respondent attempted to contact the respondent's local GP in Port Lincoln or to ascertain what medications she was getting from other sources. There is no indication that the respondent considered the potential harmful effects of his prescribing or counselled the patient in that regard.
81. The respondent states in his affidavit that the Panadeine Forte was prescribed for back pain and the benzodiazepines initially for "grieving" and then "domestic violence and dysfunctional life". There was no proper indication for the prescribing. The respondent clearly conducted no adequate examination or assessment, merely referring to the oral history given by the patient.[45] No proper consideration was given to potential harm and the patient was placed at unnecessary risk. The respondent failed to guard against manipulation or abuse.
82. Patient 4 first consulted the respondent on 17/2/2017. She stated that she had "recently moved here". She stated that she was going bush for two months. She gave a history of really bad anxiety, domestic violence, bad headaches, back pain, sleeplessness, high blood pressure, and said she was on Panadeine Forte and Valium. The respondent checked her blood pressure and pulse and prescribed Panadeine Forte and diazepam. The diazepam was prescribed as 100 tablets, to be taken two per day prn.
83. The patient next attended on 23/3/2017 when the reason for visit was recorded as "domestic violence victim". The respondent prescribed diazepam 5 mg, 100 tablets with one repeat. The instructions were to take one tablet twice a day prn. He also prescribed oxazepam 30 mg, 50 tablets with one repeat. The instruction was to take one tablet a day. Thus the patient was supplied with tablets of both medicines for 50 days, and with the repeat, for 100 days.
84. She returned on 5/5/2017 when the reason for the visit was recorded as "domestic violence victim". We take this as a way of saying that she came for her tablets, and not for any other noteworthy reason. The respondent prescribed the same medicines in the same quantities as on the previous occasion, with one repeat. This is the prescription that is referred to in the complaint. The prescription was marked "Reg 24" meaning that the patient could access the repeats immediately.
85. As at 5/5/2017 the patient ought to have still had 57 days' supply of each medicine, if it was being taken in accordance with instructions. It was irresponsible to prescribe more. Yet the respondent gave the patient access to a further 100 days' supply.
86. The notes do not record any adequate rationale for the prescribing, or any management plan. The respondent claims in his affidavit that the codeine was prescribed for a bad back and the benzodiazepines for anxiety caused by domestic violence. There was no proper indication for the prescribing. Once again, the respondent simply accepted what the patient said and continued medication she claimed to have been prescribed previously. There was no attempt to contact the patient's local practitioner. There was no proper consideration of potential harm and no adequate counselling about this. The respondent failed to take reasonable steps to guard against manipulation or abuse.
87. This patient first attended the respondent on 20/7/2016 and the respondent noted a history of back pain, anxiety attacks, and flashbacks. He prescribed diazepam, oxazepam and Panadeine Forte.
88. She attended on 24/2/2017. The reason for the visit was recorded as "pain, stress". The patient gave a history of domestic violence. The same medicines were prescribed. On 16/3/2017 the reason for visit was "back pain" and the same medicines were prescribed.
89. On 26 April 2017 the patient rang the respondent. She said she was away, but a person would attend and collect her medicines. The respondent prescribed the same medications. He prescribed Panadeine Forte 500mg, 240 tablets. Instructions were to take 6 per day prn. It is unclear whether there was a repeat on this. Assuming there was not, the prescription should have sufficed, at least, for 40 days. He prescribed diazepam 5mg, 100 tablets, to be taken 3 per day. This should have sufficed for 33 days. He prescribed oxazepam 30mg, 50 tablets, to be taken one per day. This should have sufficed for 50 days.
90. The patient presented again on 5/5/2017 (9 days later). She wanted more tablets. The reason for visit was recorded as "Back pain. anxiety". The respondent proceeded to once again prescribe the same medicines. He did so despite recording: "Early for tabs. advised. no more till end July".
91. This script is the subject of the allegation in the complaint. The respondent prescribed Panadeine Forte 500mg, 240 tablets, with a repeat. The instructions were to take 8 per day. The script was marked Reg 24, meaning that the patient could get immediate access to the repeat. The patient had returned at least one month early but was given access to 480 additional tablets.
92. The respondent also prescribed diazepam 5mg, 100 tablets with instructions to take 3 per day. The patient by that stage should only have used less than a third of her previous prescription and ought not to have been given more. He also prescribed oxazepam 30mg, 50 tablets, to be taken one per day. He did so although the patient ought to have still had 40 days' supply. The prescribing was irresponsible and such as to facilitate abuse.
93. Despite his note that there would be "no more till end July", the respondent again prescribed benzodiazepines on 15 June 2017.
94. The Notes do not record any adequate rationale for the prescribing, or any management plan. The respondent claims in his affidavit that the codeine was prescribed for a bad back and the benzodiazepines for anxiety attacks and domestic violence. There was no proper indication for the prescribing. Once again, the respondent simply accepted what the patient said and continued medicines she claimed to have been prescribed previously.
95. The standard of medicine practised by the respondent in relation to these five aboriginal women was very poor. He simply failed to have regard to appropriate prescribing principles as set out earlier in these Reasons. No proper assessment was made of the risks and benefits of the medication. If it had been, it would have been clear that the prescribing was not indicated. The respondent inappropriately prescribed the medications in question, aggravated by the use of benzodiazepines in tandem with codeine. The respondent failed in his responsibility to guard against manipulation and abuse. Indeed, he facilitated such abuse. He exposed patients to inappropriate risks of harm.
96. We have no doubt that the behaviour of the respondent in this regard constitutes professional misconduct. It is conduct that falls substantially short of the required standards.
97. The respondent was cross-examined in the Supreme Court concerning his letter to AHPRA dated 13 July 2017:[48]
Q. In that letter did you say you were deeply embarrassed.
A. Yes. That was a letter - how should I put it? It was a letter to make them - to try to make out I was a good guy, you know.
Q. So it was -
A. It was - that whole letter was a bit farcical.
Q. So you weren't genuinely deeply embarrassed as you told AHPRA.
A. No, no,
HER HONOUR
Q. What do you mean the letter was farcical.
A. I'm sorry?
Q. Did you say the letter was farcical.
A. Well yeah, I'm trying to find a word. I mean, it's a letter that I've made up to try and play down the situation which I knew would not get me anywhere but it was just part of the process
Q, So it was not genuine what you said.
A. Probably not. Parts of it were but parts of it weren't.
XXN
Q. You also said in the letter, didn't you, that the prescribing that they were looking at was out of character.
A. Yes.
Q. And at that early stage in the notification process they were talking about a group of four or five aboriginal women, weren't they.
A. Yes.
Q. You in that letter give them some details about these four or five women coming on a particular occasion and needing some medications to tide them over -
A. Yes.
Q. -is that right. And you said that situation was out of character in your letter to AHPRA.
A. Yes.
Q. That wasn't genuine either, was it.
A. No
Q. It was -
A. As I said, that letter was a vain attempt to try and stop the process at that stage. I thought if I, you know - but I knew it wouldn't do that and then next it would be to examine all my prescribing through Medicare and so -
98. The respondent knowingly and deliberately provided misleading information to AHPRA in an attempt to forestall a more general investigation into his prescribing. He knew that his prescribing was based on views and practices that would not be accepted as appropriate. He tried to conceal the true situation, so that he could proceed unhampered with his unconventional and unprofessional approach.
99. It is essential that practitioners exhibit honesty and integrity in their dealings with the professional regulation authorities. The respondent's failure to do so constitutes professional misconduct and he has conceded that this is so.
100. The respondent stated in his Supreme Court evidence that he had been prescribing Oxazepam and a codeine-containing medicine to his wife for many years.[49] He agreed that these medicines could be highly addictive. He conceded that his wife was dependent on benzodiazepines. He did not expect that his wife would be able to source such drugs from another source, given the standard approach to their prescription.[50] He expressed the view that:
...they were not doing any harm, although if she had tried to stop them, obviously there would have been withdrawal effects. But there was no harm in taking them for long periods.[51]
101. He also deposed that he had been prescribing oxazepam to himself for many years. He did so because, at various stage of his life, he had trouble getting to sleep. He prescribed and took this medicine consistently over many years, including at times when he was not having trouble sleeping. He agreed that he was dependent on this benzodiazepine, but considered that such dependency was not harmful.[52]
102. The respondent's prescribing for his wife and himself was not appropriate. There was no proper indication for such prescribing in either case.
103. Furthermore, the respondent concedes that such prescribing was in breach of the principles set out in the publication: "Good Medical Practice: A Code of Conduct for Doctors in Australia" published by the Board in March 2014.[53] It is clearly unprofessional to prescribe such medication on an extended basis to oneself or a person with whom one has a close personal relationship. To do so invites lack of objectivity, and inappropriate diagnosis or treatment decisions.
104. The aggravating factor in the present case is that the respondent knew that he was prescribing on the basis of non-conventional views that would not be accepted by competent practitioners. He was essentially abusing the prescribing privileges that he had as a registered medical practitioner to obtain for himself and his wife medicines that would not be available to them from a competent and professional practitioner. We consider that such behaviour clearly constitutes professional misconduct.
105. We impose a reprimand to express our utter condemnation of the professional misconduct.
106. The respondent accepts that his registration must be cancelled. He has demonstrated that he is not a fit and proper person to be registered. We cancel his registration.
107. The Board submits that he should be disqualified for applying for registration for a substantial period and that he should be prohibited from providing any health service for a similar period. The respondent is 71 years of age. He will not be eligible for release from prison for another six years. He states that he has no intention of practising medicine again and he makes no submission concerning the above matters.
108. The Board submitted that the Tribunal should set separate disqualification periods for the attempted murder and the other misconduct and then order that the two periods be served cumulatively. We do not consider that to be an appropriate approach in the circumstances of this case.
109. We will approach the matter on a global basis. This will enable us to set a disqualification period which will reflect the unfitness to be registered which is apparent from the totality of the conduct.
110. However, in deference to the submissions of the Board, we make some comments specifically concerning the prescribing and related conduct in misleading AHPRA. We acknowledge that only a small number of prescriptions and patients are included in the referral. The alleged prescribing was confined to a relatively small period. However, the extent of departure from accepted standards was significant and it was accompanied by steps taken to avoid detection. We are most concerned that the respondent still has no insight as to the wrongfulness of his prescribing actions. He still maintains that his prescribing was appropriate. He has expressed no remorse or contrition. Even these proceedings have not brought home to him the seriousness of his defaults. There is no reason to think that he would change his ways if ever allowed to practise in the future. Furthermore, he attempted to mislead the regulatory authorities so that his aberrant prescribing could continue unhampered. If these aspects of the respondent's conduct had come before us without the complication of an attempted murder, we may well have imposed a disqualification of 5 years, being the upper limit of the range suggested by the Board.
111. However, that conduct is over-shadowed by the attempted murder and by the Supreme Court's findings as to the risk the respondent continues to pose. He still denies his guilt of the charge. The respondent's criminal conduct was such as to strike at the heart of the regulatory system under the National Law. He attempted to murder a notifier because she made a notification about him to the authorities (as was her duty). It was found by the Court to be an act of vengeance. It is difficult to envisage more serious conduct of a professional nature.
112. In General Medical Council v Spackman [1943] AC 627, Viscount Simon LC stated:
The high reputation of the medical profession as a whole depends in no small measure on excluding from it those whose professional misconduct makes them unworthy to belong to it, and the confidence which the public are accustomed to put in the family doctor is intimately connected with the assurance that those who practise the art of medicine are, in all relations with their patients, individuals of the highest honour.
113. In Nursing and Midwifery Board of Australia v Freeman [2020] SACAT 88 the respondent had attempted to murder his wife. He was convicted of that offence and sentenced to imprisonment for nine years with a non-parole period of 5 years and 6 months. It was conduct largely unrelated to his practice of nursing, although he failed to use his nursing skills to assist his wife after attacking her. Mr Freeman had serious health issues of a progressive nature which made it likely he would never be able to practice nursing again. The Tribunal stated:[54]
The present task for the Tribunal is to impose disciplinary action that adequately reflects the incompatibility of the misconduct with the fitness of a person to be registered in the nursing profession. The disciplinary action should be such as to convey to other practitioners and the general public that such conduct is incompatible with registration and will not be tolerated. It should be sufficient to assure the public that standards within the profession will be maintained and the public will be adequately protected.
114. Noting that the practitioner's registration had already been suspended for two years and 10 months, the Tribunal in that case cancelled his registration and imposed a disqualification for a period of 15 years. The Tribunal stated:[55]
The respondent's conduct involved an unprovoked, premeditated and brutal attack on his then wife in her own home. He persisted in the attack and, despite his nursing knowledge and experience, failed to render any physical assistance to the victim when she was in danger of dying. We consider that it would be an affront to public confidence in the nursing profession if such a person was allowed to apply for registration at any earlier time.
115. Similar principles are relevant to the present case. The respondent's conduct in attempting to murder a notifier was directly relevant to his registration as a medical practitioner. Furthermore, it had a clear connection to inappropriate prescribing and was accompanied by attempts to mislead and deceive the regulatory authorities concerning that prescribing. Viewed globally, the respondent's conduct is incompatible with fitness to be registered to a greater extent than was the conduct of Freeman. There is a greater degree of future risk.
116. We impose a disqualification period of 25 years. We also prohibit the respondent from providing any health service for the same period. These orders are necessary to:
(a) Protect the public from the risks presented by a person who is not a fit and proper person to be registered;
(b) Reflect the incompatibility of the respondent's conduct with fitness to be registered;
(c) Bring home to the respondent and other practitioners the fact that such conduct will not be tolerated and that it will be met by substantial sanctions;
(d) Thereby assure the public that standards within the profession are being maintained and that health services are being appropriate regulated in the public interest; and
(e) Protect and maintain the reputation of the medical profession.[56]
117. We reject any suggestion that the orders are unnecessary due to the respondent's age and present incarceration. He states he has no intention of returning to practice, but that statement does not bind him, nor prevent him from providing non-regulated health services. Furthermore, there is still the need to send an appropriate message to other practitioners and to the public. There is still the need to maintain the reputation of the profession.
118. We make some further comments of a more general nature. In Marin v Chiropractic Board of Australia,[57] the Court made the point that the Tribunal usually has before it a wealth of information that may not be before a national board on a subsequent application for readmission. The Tribunal is far better placed to understand the extent to which the conduct is incompatible with fitness to be registered.
119. We note that the National Law requires a disqualification to be for a specified period. We also acknowledge that in most cases there will be some prospect of rehabilitation over time. Despite these considerations, we also consider that there are some cases where it is clear that a person will never be a fit and proper person to be re-registered. As the Victorian Tribunal suggested in Medical Board of Australia v Sze-Tho [2019] VCAT 244 at [51], there are some cases that are so serious that the sanctions must be "career-ending".
120. In such cases, the Tribunal should not hold out false hope to the former practitioner. It ought not to place the relevant national board in the undesirable position of dealing with unmeritorious applications for readmission. It should not give the public the false impression that the offending practitioner may yet be welcomed back into the profession. The Tribunal should set a period of disqualification which makes it clear that the person's career in the profession is over.
121. This is one such case. This respondent could never again be trusted with the responsibilities of a registered medical practitioner. The public, and other health practitioners should never again be put at serious risk from the respondent. It is appropriate to set a disqualification which makes it clear to everyone that his career as a medical practitioner is over. The respondent is 71 years of age. He will be 96 when our orders expire. The public and other health practitioners have the reassurance they deserve.
(a) The Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
(b) The Tribunal imposes a reprimand to express its utter condemnation of the professional misconduct.
(c) The Tribunal cancels the registration of the respondent.
(d) The Tribunal disqualifies the respondent for a period of 25 years from applying for registration as a health practitioner.
(e) The Tribunal prohibits the respondent for a period of 25 years from providing any health service. "Health service" bears the meaning that it has in the National Law.
(f) The respondent is ordered to pay the Board's costs of the proceedings to be agreed or, in default of agreement, to be fixed by the Tribunal.
(g) The Tribunal prohibits the publication of the names of, or anything tending to identify, the patients referred to in the evidence before the Tribunal.
[1] The National Law is to be found in schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (the Act).
[2] Exhibit C1: Tribunal Book (Volumes A and B).
[6] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362-363; Rajagopalan v MBSA [1997] SASC 6363, affirmed in Rajagopalan v MBSA [1998] SASC 7142.
[9] A record of this meeting appears at C1 Tab 13, page 70.
[40] Patient Notes at C1 Tab 50; prescriptions at C1 Tab 7, pages 16-17.
[42] Patient Notes C1 Tab 51; prescription C1 Tab 7 page 15.
[44] Patient notes C1 Tab 52; prescription Tab 7 page 14.
[46] Patient Notes C1 Tab 53; prescription C1 Tab 7 page 13.
[47] Patient Notes C1 Tab 54; prescription C1 Tab 7 page 12.
[54] [2020] SACAT 88 at [16].
[55] [2020] SACAT 88 at [18].
[56] Marin v Chiropractic Board of Australia [2020] SASCFC 74 at [70]- [74].
[57] [2020] SASCFC 74 at [70].
Medical Board of Australia
Holder [2021] SACAT 47
(1938) 60 CLR 336