HCCC v Dr Christopher Roberts
[2007] NSWMT 15
•24 April 2007
New South Wales
Medical Tribunal
CITATION: HCCC v Dr Christopher Roberts [2007] NSWMT 15 revised - 14/08/2008 TRIBUNAL: Medical Tribunal PARTIES: Health Care Complaints Commission
Dr Christopher RobertsFILE NUMBER(S): 40037 of 2005 CORAM: Ainslie-Wallace, DCJ - Yeo, Dr G - Hely, Dr J - McNeil, P CATCHWORDS: Prescription of restricted substances and drugs of addiction - Failure to record diagnoses, medical treatment, particulars of clinical opinion and full particulars of prescribing LEGISLATION CITED: Medical Practice Act 1992
Medical Practice Regulations 1998
Poisons and Therapeutic Goods Act 1966
Poisons and Therapeutic Goods Regulations 1998CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336;
HCCC v Litchfield (1997) 41 NSWLR 630;
Law Society of NSW v Foreman (1994) 34 NSWLR 408;
Craig v Medical Board of South Australia [2001]SASC 169;
NSW Bar Association v Meakes [2006] NSWCA 340DATES OF HEARING: 12.2.2007 to 15.2.1007, 2.3.2007 DATE OF JUDGMENT: 24 April 2007 LEGAL REPRESENTATIVES: AJ Katzmann of Senior Counsel for the complainant
M Bozic of Senior Counsel with E Pike of Counsel for the respondentORDERS: Orders:; The Tribunal accepts the undertaking of the respondent’s solicitor that the respondent will cease practicing medicine and offering health services in the nature of counselling at 5.00 pm on Friday 27th April 2007; 1.order that the respondent’s name be removed from the Register of Medical Practitioners on 21st May 2007.That he not apply to be re-registered for a period of five years from the date of these orders; 2. That until he is reregistered as a medical practitioner he not offer any health service in the nature of counselling; 3. Respondent to pay the costs of the action; Orders:; The Tribunal accepts the undertaking of the respondent’s solicitor that the respondent will cease practicing medicine and offering health services in the nature of counselling at 5.00 pm on Friday 27th April 2007:; 1. order that the respondent’s name be removed from the Register of Medical Practitioners on 21st May 2007.That he not apply to be re-registered for a period of five years from the date of these orders.; 2. That until he is reregistered as a medical practitioner he not offer any health service in the nature of counselling.; 3. Respondent to pay the costs of the action
JUDGMENT:
THE MEDICAL TRIBUNAL Tuesday 24th April 2007
OF NEW SOUTH WALES
AT SYDNEY
No. 40037 of 2005
BETWEEN
Health Care Complaints Commission
Complainant
Dr Christopher Roberts
Respondent
Deputy Chair: Judge A M Ainslie-Wallace
Members: Dr G Yeo
Dr J Hely
Associate Professor Paul McNeill
Orders and Reasons for Determination
Order:
Pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992 the Tribunal has made a Non Publication Order in respect of the names of the patients referred to in the proceedings.
Introduction:
The Health Care Complaints Commission (the "HCCC") alleges that the respondent, a medical practitioner is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of sections 36 and 37 of the Medical Practice Act, 1992 in that he has:
- (i) demonstrated that the knowledge, skill or judgment possessed, or care exercised by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or
(ii) contravened the Medical Practice Regulation 1998; and/or
(iii) has engaged in improper or unethical conduct relating to the practice of medicine.
There are 161 particulars of the complaint. [1] The particulars relate to 30 patients. Not every particular is alleged in relation to each patient. The particulars are conveniently summarised in two categories.
Prescribing
- * That the respondent prescribed restricted substances [2] and drugs of addiction [3] when the practitioner knew or ought to have known that the patient was dependent or likely to become dependent on the restricted substances or drugs or addiction;
* when the practitioner knew or ought to have known that the patient was under the care of other medical practitioners who were also concurrently prescribing similar restricted substances for the patient;
* when the practitioner knew or ought to have known that the patient was a participant in a methadone programme;
* without exercising adequate medical judgment as to whether the prescribing of restricted substances and/or drugs of addiction was appropriate in the circumstances and/or in accordance with recognised therapeutic standards;
* that he prescribed restricted substances in quantities and/or for purposes not in accordance with recognised therapeutic standards of what was appropriate in the circumstances; [4]
* that he prescribed restricted substances to patients without recording the directions for use, as shown in the prescription; [5]
* that he recorded a date, other than the date of issue on prescriptions for restricted substances. [6]
Records
That the respondent failed to:
- * record information relevant to the patient's diagnosis and/or medical treatment;
* record particulars of any clinical opinion he reached;
* record treatment plans;
* record full particulars of the medication prescribed;
- * record information or advice given to patients in relation to proposed medical treatment of them;
* record his name as the practitioner who treated and prescribed the medication;
* record sufficient and appropriate details about cases to allow other registered medical practitioners to continue the management of the patient;
* clearly identify himself as the person who made entries in the patients' medical notes. [7]
Each particular of each complaint was admitted and the respondent admitted that he was guilty of professional misconduct.
Background
1 The respondent graduated MBBS in May 1975 from Sydney University. After graduating he completed an internship at Sydney Hospital and then worked in a number of hospitals in Sydney. He commenced private practice as a general practitioner in 1979.
2 In 1979 the respondent began the Holistic Medical Centre (the 'HMC') with a number of other doctors and at all relevant times he worked there for three days of each week. The HMC is a centre that includes Complementary and Alternative health practitioners, counsellors and general practitioners. He also worked in general practice in Campsie.
3 In 1987 the respondent joined two other doctors, Isaac Nadel and Steven Goodman who were practising together in the Redfern Street Medical Centre (the Redfern practice).
4 According to his curriculum vitae, the respondent has had an interest in counselling, natural therapies and dependency for some time.
5 He had pursued some counselling training in the USA in the model of co-dependency and addictions. The respondent said that the theory took into account the dynamic of the addict's family when dealing with addiction issues. [8]
6 When the respondent joined the Redfern practice, he described it as being a general practice with a mix of people with the usual ailments. Over time he noticed more and more drug-addicted people in the area were coming to the practice. He said that he tried to encourage the addicted patients to attend Narcotics Anonymous ("NA") and he would prescribe benzodiazepines for them if they would go. The respondent hoped that attendance at NA would help them overcome their addiction. In late 1997 he expanded this approach by having the patients enter into what he called "contracts" to attend NA, the reward being that if they agreed to attend at least three sessions each week, he would prescribe benzodiazepines on request. The respondent said that he also wished to encourage the patients not to go to other doctors for benzodiazepines but to attend the Redfern practice more frequently. As part of the treatment the respondent counselled the patients about the "nature of addiction and the drivers behind addiction". [9] By 1999 the respondent estimated that the practice saw about 700 patients all of whom were drug addicted.
7 The implementation of the respondent's theory resulted in him and his colleagues prescribing hundreds of tablets of benzodiazepines for drug-addicted patients who attended the Redfern practice. That conduct forms the basis of the complaint.
8 The respondent agreed that the cohort of thirty patients whose treatment comprise the particulars of the complaint were representative of his methodology of treatment of patients although, he said, that the 30 patients in the complaint received the most benzodiazepines. Of the 30 patients included in the complaint, two of them, patient DD and patient Z died of drug overdose while under the respondent's care.
9 The respondent left Australia in early March 1999 and returned in about May 1999. On his return he learned that the Pharmaceutical Services Branch of the NSW Department of Health (the 'PSB') had investigated his colleagues in relation to the level of prescribing of benzodiazepines in the Redfern practice. The respondent immediately wrote to the Minister for Health [10] asking for assistance in bringing the investigation to an end.
10 Mr Thompson, who investigated the other doctors at the Redfern practice for the PSB, attempted to interview the respondent but he declined to be interviewed.
11 The investigation by the PSB was not the first time that the respondent or the Redfern practice had been visited by the PSB about prescribing practices. In 1981 (when the respondent was practising at Campsie), he was spoken to about his prescription of Schedule 8 drugs. According to the note made by the PSB inspector[11], B. Darcy-Smith, following complaints from local pharmacists in Campsie that prescriptions for Endone and Ritalin were being issued to young people, an audit of prescriptions was conducted "with particular attention" to the prescriptions written by the respondent and his partners. After the audit, the respondent was interviewed.
12 The respondent was told during the interview that the patients under discussion were seeing each member of the practice in turn and obtaining regular quantities of narcotics. The respondent was urged to speak to his colleagues. At the conclusion of the interview the respondent was given a document which was entitled: "Recognising and Handling Addicts - Notes for General Practitioners". It dealt with how to recognise a drug-seeking person, consequences of prescribing for a drug-seeking patient and included a list of addresses and phone numbers of addict management facilities. The document pointed out that co-operation of doctors would not only assist the recovery of the patients but also minimise the diversion of the drugs to illicit channels. The respondent confirmed in writing that he had received and read the document.
13 In 1993, Dr Goodman was visited by Mr Thompson of the PSB in relation to the frequency with which he was prescribing benzodiazepines. Dr Goodman was given information of a similar kind to that given to the respondent in 1981. There was no dispute that the respondent knew of this visit.
14 In June 1999 a formal complaint about the respondent's conduct was made to the Medical Board and in September 1999 an inquiry pursuant to Section 66 of the Medical Practice Act was convened. At the conclusion of the inquiry, the Medical Board ordered that the respondent not be permitted to prescribe or otherwise deal with Schedule 4D and Schedule 8 drugs and ordered him to relinquish those rights. [12]
15 The Redfern practice was effectively closed within weeks of the orders of the Medical Board. From that time the respondent has been practising at the HMC.
The Complaint
16 The respondent said that through his work in the co-dependency model of treating addictions, he embarked on the implementation of prescribing on request subject to an agreement to attend NA. The respondent said that at the time he was increasingly frustrated with the available alternatives for the treatment of drug addiction which was to refer patients to drug and alcohol experts and detoxification programs which he believed did not address the problem of the addiction. He devised a treatment strategy which would allow the patients to continue using large quantities of drugs while he counselled them and encouraged them to attend NA where, he hoped they could substitute "medication for people". [13]
17 Despite knowing that drug seeking patients could be manipulative and liars, the respondent maintained that he could detect those who were not serious about treatment and said he would send them away. He also said that he could tell if the patients were actually attending NA meetings by questioning them.
18 The Commonwealth Health Insurance Commission (the 'HIC') conducted what was called the "Doctor Shopper Programme". The programme monitored the number of doctors attended by drug seeking patients to try and reduce the amount of drugs received and the number of doctors prescribing for the patients. The programme was developed to stop patients obtaining benzodiazepines or opiates from many different doctors and then selling them or swapping them for other drugs. As part of the programme, patients were asked to enter into Voluntary Agreements in which they agreed that details of drugs prescribed to them could be made available to the HIC. A number of the patients referred to in the Complaint had entered into Voluntary Agreements with the respondent and the other practitioners at the Redfern practice.
19 At regular intervals, the HIC provided the respondent with a computer print out for each patient with a Voluntary Agreement. It showed the number of distinct prescribers, the numbers and types of drugs prescribed in the period and the daily average number of tablets prescribed for that patient.
- “The respondent said that he used the HIC information to "confront" his patients about their behaviour and the information gave him objective evidence by which to determine whether they were doing what they had agreed to.” [14]
20 The respondent was of the opinion that all of his patients had psychiatric problems of which the predominant cause was emotional. Despite this, the respondent did not refer any patient to a psychiatrist because he felt that the co-dependency model that he had studied was:
- "...elegant in it's understanding of the cause of drug and alcohol. I felt that....I could show them something that perhaps the drug and alcohol experts could not." [15]
21 The training in the co-dependency model, on which this method of treatment was based was conceded by the respondent to be outside the mainstream. The training was given by an American who certified that the respondent could be a counsellor in " Co-Dependency and Addictions ". The respondent agreed that this certificate was not recognised by the medical profession, the Psychologists Registration Board or any other relevant organisation in Australia. [17]
22 The respondent conceded during the hearing before the Tribunal that there is nothing in the co-dependency model which recommended or advocated prescribing on demand and said that it was an extrapolation by him from the model because he thought that: " it may work ". [18]
Treatment Regime
23 During his treatment of the addicted patients, the respondent took minimal history from any patient, undertook no physical examination nor ordered any tests to diagnose or determine the effects on the patient of the proposed prescription of benzodiazepines. The respondent said that occasionally he would order a liver function test, not to monitor the effect of large quantities of benzodiazepines on any patient, but if the patient suffered from Hepatitis C. [19]
24 The vast majority of the respondent's patients were receiving Methadone. The respondent conceded that the doctor administering the Methadone would want to know that the respondent was prescribing benzodiazepines for the patient. He never contacted any Methadone prescribing doctor. The respondent did not regard this failure to notify the other doctors as possibly placing his patients at risk because, he said, the patients would obtain benzodiazepines from other practitioners in any event. [20]
25 The respondent said that he knew at the time that his treatment of these patients did not accord with the standards expected of an ordinary medical practitioner but said that at the time he did not see himself as being the patients "primary care practitioner". He said that he was seeing them for a very specific reason which was to get their drug taking under control and not attempt to get them physically well. He did agree that if a patient presented with a medical complaint which could be quickly attended to he would do it but he did not look at the whole patient. He saw his role as getting the patient off drugs. The respondent said that he did not regard himself as acting as a general practitioner during this time. [21]
26 The respondent maintained that he was medically supervising these patients. [22] He agreed that the usual medical supervision of a patient's intake of drugs would involve: "a doctor monitoring and keeping an eye with his clinical judgment on what he was prepared to let them have", and could involve routine blood tests. He did none of those things and said that his clinical judgment was that: "these people needed help to get to people, not to fix their bodies yet ... they needed something more important first, once their lives got in order then I would have started instituting some medical attention to their bodies". It was, he said, a matter of priorities. [23]
The state of the respondent's knowledge
27 The respondent first said that at the time of the complaint, he was aware of: " some risks " attendant on prescription of benzodiazepines. [24] He agreed that he had had a keen interest in benzodiazepines and other drugs from the 1990s and in pursuit of this interest would read any articles on the subject which came up during his usual journal reading. The respondent said that until the complaint was made he regarded benzodiazepines as: "safe, people did not overdose on them". [25] Since the complaint the respondent said that he realised that what he was doing was potentially harmful to patients.
28 The respondent conceded that he had read MIMS many times over the years and that it sets out the adverse consequences of benzodiazepine use. He knew at the relevant time that addicts could inject temazepam and knew the potential physical risks which could arise from that practice. He knew that benzodiazepines could be abused by excess use, that there is a risk of dependency through excessive use and patients could abuse benzodiazepines by obtaining them from multiple prescribers.
29 The respondent agreed that he knew at the time that by prescribing benzodiazepines he could be contributing to the risk of death in a patient, to the release of drugs onto the street and that he was prescribing in a quantity and for a purpose that did not accord with the recognised therapeutic standard. Despite that knowledge, he continued to prescribe on demand for patients. [26]
30 He agreed that he knew that in prescribing benzodiazepines, there was a risk of dependence and if a doctor encouraged patients to only attend one general practitioner this allowed their intake and potential for dependence to be monitored. [27]
31 The respondent conceded that at the time he was prescribing, he was well aware of the risks to the patients from using large amounts of benzodiazepines and he well knew that what he was doing was not in accordance with the proper exercise of skill and judgment expected of a practitioner. [28] After acknowledging that he was aware of the risks in pregnancy of high doses of benzodiazepines, the respondent said that he did not warn patients because they would not listen. [29] He did not counsel or warn patients about the risks inherent in taking large amounts of benzodiazepines because he thought it would be futile - they would have laughed at him. [30]
32 The respondent said that at the time of prescribing he was familiar with the contents of publications such as that issued by the Royal Australian College of General Practitioners [31]which outline guidelines for practitioners in the prescribing of benzodiazepines.
33 The document published by the Royal Australian College of General Practitioners in January 1994- "Guidelines for the rational use of Benzodiazepines" contains the following points:
(1) wherever possible avoid prescribing benzodiazepines especially to known polydrug users, including those with dependence;
(3) all patients prescribed benzodiazepines should be advised of the risk of dependence associated with long-term use;(2) reduction of benzodiazepines dose should be undertaken only with the patient's consent and co-operation;
- (4) patients receiving prescriptions for benzodiazepines should be advised to obtain all such prescriptions from the same doctor, wherever possible, so that risk of dependence may be monitored;
- (5) medication review should be a part of every general practice consultation. Specifically this should include a review of the indication(s) for continued use, medication dose and possible adverse effects. For all patients receiving long term benzodiazepines this is particularly relevant;
- (6) Non-medication management for conditions such as anxiety and insomnia includes clarification of the problem, counselling and specific advice, with referral where the diagnosis is uncertain or where assistance in management is required;
- (7) detoxification from benzodiazepines may be facilitated by changing patients to long half-life medications eg diazepam and then slowly reducing the dose. One-to-one counselling may be supplemented by self-help support programmes during withdrawal;
- (8) management of anxiety and insomnia should rely largely on non-pharmacological interventions;
- (9) when benzodiazepines are prescribed, the lowest dose to achieve the desired outcome for the shortest duration necessary should be provided
34 Were those points not sufficiently clear, the document contains explanatory notes for each point, describes the reasons for the introduction of guidelines and the prevalence and patterns of drug use and misuse.
35 The respondent agreed that he did not prescribe benzodiazepines for the reasons for which they were meant to be prescribed. However he said he had a rationale for prescribing which was to use the issue of prescriptions for benzodiazepines as a "reward" to patients who promised to do what he invited them to do. [32] The respondent did not follow any of the guidelines in relation to any patient.
36 The respondent knew that repeat prescriptions of benzodiazepines should be limited because of the risk of people hoarding tablets and then taking a massive dose. [33] He denied that he had set out to subvert that by giving patients post-dated prescriptions and said that he was: "trying to make what I was doing work". The respondent would not agree that post dating prescriptions was dangerous but conceded that it was foolish. It was foolish because he said he did not think through what he was doing but was "overwhelmed" by the need to help these patients. He maintained that it was more dangerous not to post date prescriptions. [34]
37 He often wrote prescriptions for two different benzodiazepines for a patient at the same consultation. [35] Again, he denied that he was trying to subvert the prohibition on repeat prescriptions and when asked to explain why he prescribed two different benzodiazepines at the one time said: "I was trying to do something because I didn't feel people were getting well in our society". How prescribing two different benzodiazepines achieved that purpose was never made clear. [36]
38 In the light of this knowledge, the respondent embarked on this course of conduct knowing that there was no basis for it in the theory of co-dependency and no empirical evidence to support it. At best it was, as he described it: "an extrapolation" from the theory that "may" have worked. He spoke to no expert in the field of Drug and Alcohol Addiction, did no particular reading on the topic and at no time during this period did he discuss what he was doing with any colleague (other than those at the Redfern practice). He conceded that what he was doing between 1997 and 1999 was:
"At best an experimentation with human lives". [37]
39 The Tribunal is satisfied that during the years 1997 to 1999 when the respondent was putting into practice his "theory" it was not only in the knowledge of the risks and dangers of prescribing large amounts of benzodiazepines to dependent people but was in deliberate defiance of what he knew to be the guidelines established by his professional body for the safe prescription of benzodiazepines. It was also illegal, a point which the respondent first admitted he knew and later qualified.
40 During the period in which the respondent was undertaking this conduct he was also practising in the HMC. He did not discuss what he was doing with those doctors (one of whom was a psychiatrist). He said that at the time he did not believe that he was acting in a way which would have incurred their disapproval. [38] However a short time later in his evidence the respondent said that at the time he was prescribing benzodiazepines he knew that what he was doing was unorthodox and flew in the face of everything he had learned in his medical training. The inconsistency between these two statements is obvious and, given the visit by the PSB in 1981 and 1993 and, for other reasons which appear later, the Tribunal is of the view that his statement that he did not believe his conduct would meet with disapproval simply cannot be accepted.
41 Not only did the respondent not discuss his theory with his colleagues at the HMC (despite his assertion that he considered it "elegant" and that it provided something which was unknown to other drug and alcohol professionals), neither did he contact the Methadone providing practitioners for any of his patients. He said that he did not contact them because if he rang the practitioner and described what he was planning to do "they would not understand, they would not...want this happening...they would not approve". [39] In his evidence to the Section 66 Inquiry the respondent said that he did not contact the methadone prescribers because he was apprehensive that he would be told to stop. [40]
42 The Tribunal is satisfied that the respondent well knew that his conduct during this period was not only wholly inappropriate but involved significant risks to his patients and was outside the standard of treatment expected of a medical practitioner.
Case studies
43 It is illustrative of the course of conduct engaged in by the respondent at the Redfern practice, to examine a handful of the patients referred to in the complaint.
44 Patient DD had been a patient of the practice since July 1998. [41] On 8th September 1998 the notes record: "abusing Pan Forte. Takes 10 at once". The preceding notes for this patient show that on each visit she was prescribed Panadeine Forte x 20 tablets. The visit immediately after this on 12th September 1998 was with the respondent and he prescribed Panadeine Forte x 20 tablets. On 2nd October 1998 the respondent prescribed Panadeine Forte and Valium plus gave her two post-dated prescriptions for the same amount apparently because of a long weekend.
45 On 10th October, the patient saw the respondent and told him that she was "feeling more emotional, looking at what is the point of her life etc, that is waking up". The respondent prescribed 50 Valium and 20 Panadeine Forte tablets for her on that day because he said she asked for them. He knew that he had prescribed the same quantities two days before and that a colleague had prescribed the same quantities two days before that and regularly every two days in the past. [42] On that same day, the patient told the respondent that she wanted to cut down on her tablets. He recommended against that. He agreed that he devised no method or programme to assist her to reduce the numbers of tablets she was taking other than to encourage her to attend NA meetings. [43]
46 On 17th October 1998 the respondent noted that he confronted the patient about taking too many tablets. The patient had told the respondent that she had taken all of the tablets because she was depressed. The respondent advised her that it would make her more depressed and he told her that she must take less. He then prescribed her Panadeine Forte and Valium in the same quantities as before.
47 The respondent said that he was not worried that she might take her own life, either deliberately or accidentally although he conceded it was a possibility and counselled her against it. [44]
48 Despite telling the patient that she ought not take all of the tablets at once, the respondent prescribed the same quantity as before. He agreed that he could have prescribed less tablets and required her come back more often to receive the tablets but said that he did not do that because:
"these people would not come back if you started to make things complicated and start to try to control them". [45]
49 The respondent said that he had the impression that this patient was "doctor shopping" [46] and he presumed that she was getting drugs from other doctors in addition to the 70 tablets that he was prescribing for her every other day. He said that he was "hoping" that she was not getting many tablets this way. He did not ask her to sign a Voluntary Agreement which would have provided him with the information rather than relying on hope.
50 Throughout the notes there are references to the patient's claimed attendances at NA meetings; at various times she told the respondent that she attended five to six meetings a week, and on one occasion had told him that she attended seven-plus meetings in a week.
51 The patient attended the practice and received repeat prescriptions every day or every second day. On 8th December the respondent prescribed Valium and Panadeine Forte for the patient and later that same day prescribed the same amount again and noted: "claims tabs stolen." On 23rd December 1998 the respondent gave her a prescription for Valium and Panadeine Forte plus post-dated prescriptions for 28th December, 30th December and 1st January. On 24th December he again saw her and gave her a prescription for that day and also for the 26th and 29th December.
52 On 18th January the respondent noted: "in tears, my life's not worth anything". He prescribed Serzone 200mg x 56 tablets, 50 tablets Valium and 20 tablets of Panadeine Forte. On the 20th January a colleague prescribed the same amount of Valium and Panadeine Forte. The respondent agreed that the patient had appeared to be severely depressed for some period of time and he agreed [47] that it had occurred to him that the tablets he was prescribing could be used by her to attempt suicide.
53 On 25th January the respondent noted that he had been contacted by a psychiatrist from RPA Hospital who told him that the patient had taken an overdose and had been admitted. The respondent did not ask for a report, discharge summary or a copy of the records of the admission to hospital because, after speaking to the psychiatrist he decided that the patient's motivation was a "cry for help". He did not recall whether he informed the psychiatrist of the amount of benzodiazepines he was prescribing for the patient. Although in the notes of this consultation are the words: "seriously considering detox" and the respondent said that he gave her a referral to the Langton Clinic for an in-patient detoxification programme, he was unaware whether she had been given advice in the hospital about detoxification nor did he enquire.
54 The respondent agreed that when administering Valium to patients who were addiction prone it is undesirable to write repeat prescriptions without adequate medical supervision. It was suggested that the respondent exercised no caution in issuing repeat prescriptions, and said that he exercised: "my sort of caution" when he told the patient not to take all the tablets at once. [48] When the respondent was asked to consider whether, in light of this patient's assertions that she was attending up to eight NA meetings a week yet still coming to the practice every second day for the same amount of Valium and Panadeine Forte, that his strategy of encouraging attendance at NA in return for prescriptions was not working, said:
"No, it takes time. " [49]
55 Unfortunately for this patient, she did not have time.
56 The patient was seen on 30th January - the note reads: "says keen to live" and "( medication slowly". She was advised to attend daily NA and given her usual prescription. 1st February, she was seen by the respondent who noted that the: "OD was cry for help, not serious suicide attempt. Seriously consider detox". The respondent gave her the usual prescriptions. The notes of 3rd and 5th February record the same prescription and on the 3rd included the comment: "to cut down pan forte". The respondent prescribed for the patient on 8th and 10th February when he also gave her an extra prescription for Panadeine Forte. The respondent again prescribed for her on the 15th, 18th February and another day in February (the date is obscured) when he changed from Panadeine Forte to codeine phosphate. She then received codeine phosphate and Valium on 24th February, 27th February and 1st March from the respondent. She received those prescriptions on 3rd March, another date in March, 10th, 11th, 22nd, 26th (when she received a post-dated prescription for the 28th March), 29th March (plus a post dated prescription for 30th March) and 30th March (when she also received post dated prescriptions for 1st and 3rd April).
57 She continued to attend the practice and receive prescriptions for the same quantity of drugs. On 1st April she was noted to be confused, on 12th April the notes indicate that she had fallen down stairs on 8th April and been admitted to hospital. The notes also show: "Valium ( in hosp". On that day she received a prescription for Valium (which asked the chemist to dispense 12 tablets per day). The notes show that the patient was also receiving 13 tablets each day at the hospital. She was also given a prescription for codeine phosphate. The patient received Valium to be dispensed at the rate of twelve per day and codeine phosphate on 16th, 17th 19th, 21st and 24th April.
58 In April the notes record that the police rang to inform that patient DD had been found dead on 25th April.
59 In the month of February 1999 the patient received 220 tablets of Panadeine Forte or codeine phosphate. In the same period she received 550 tablets of Valium. Most of those prescriptions were written by the respondent.
60 The respondent said that at that time he did not believe that a person taking benzodiazepines in those quantities could suffer a fatal overdose and said that if he honestly had thought that a patient was suicidal he would not have prescribed those tablets. His judgment was that this patient was not suicidal at that time.
61 He did not refer her at any time to a psychiatrist and said:
"Because I assessed that she was suffering a lot of dynamics that needed addressing and I didn't feel that those things could be necessarily addressed by sending her to a psychiatrist."
62 The respondent was asked:
A. In this field, yes, at the time." [50]
Q. "You took the view that you didn't need any advice from a psychiatrist or anyone else because you knew best?
63 Notwithstanding having been told in January 1999 that the patient had overdosed, he continued to prescribe for her the same drugs and in the same quantities as before. He did not see the need to alter his prescribing since he was of the view that it was not a suicide attempt.
64 After her admission to hospital for the overdose and when he and his colleagues continued to prescribe for this patient at the same levels as before, the respondent said that he considered that the quantity of drugs being prescribed for her were potentially contributing to another overdose. However, he believed at the time: "that the childhood trauma that people have was a much bigger factor contributing to aberrant behaviour and dangerous risk taking behaviour." [51] He said that he was counselling her and hoped that it would stop her taking the risk.
65 After being informed of her death when he returned from overseas in May 1999, the respondent did not change his prescribing patterns because he said that he did not realise her death was a result of the combination of benzodiazepines and opiates, even though the Coroner's report noted the direct cause of death as: "a combination of benzodiazepines and opiates". The respondent maintained: "I don't think it hit me, the significance, I still didn't get it, opioids and benzodiazepines could be lethal". [52] The respondent knew at the time that he was prescribing large quantities of benzodiazepines that one of the effects of them as central nervous system depressants was that they could exacerbate depression and that suicidal tendencies tended to go with depression.
66 The respondent did not conduct a physical examination of this patient. He agreed that: "any ordinary medical practitioner prescribing drugs ought to conduct a medical examination before doing so" and said: "I felt that I was trying to do something very specific for them and that I wasn't trying to be their primary care physician". [53] The autopsy report noted that the patient had: "numerous white scars on the fronts of her forearms consistent with previous suicide attempts”. [54] The respondent said that he did not recall seeing those scars while treating the patient but said that he "imagined" that he would have seen them. He said they were common on people who were severely ill. He was aware at the time that she was quite capable of self harm and said:
"I believed that she was at enormous risk before I ever saw her and that I was trying to do something I believed may actually stop the cycle for her."
67 He went on to say that he now realised that it was too risky but at the time: "I believed that I may make a difference".
68 Patient Z was 16 years old when she first attended the Redfern practice. The first entry in the notes is on 4th December 1998 (made by a colleague of the respondent). It records that she was using heroin - $100 a day, trying to get on Methadone and wanted help with detoxification. She was prescribed Valium. The next day she returned and saw a colleague and received another prescription because she said the previous prescription had been stolen. This prescription was given notwithstanding that she is noted as appearing a: "bit dopey".
69 She first saw the respondent on 10th December. His note is: "normison 10(25). Won't put her on methadone. Min of 3 x NA if comes here". He saw her again on 17th December, noting that she was on 30mg Methadone and she received a prescription for Normison. The notes record that she would not receive tablets unless she does: "3 NA per week. She was encouraged to go to NA instead of receiving Methadone.
70 On 22nd December she was seen by a colleague who noted that her methadone had been increased to 40mg per day: "2 NA encouraged". She received the prescription for Normison.
71 She saw the respondent on 23rd December who wrote another prescription after being told her tablets were stolen. On 5th and 6th January, she received prescriptions because she said someone had torn hers up. On 7th January she saw the respondent who confronted her about the alleged destroyed prescriptions. He recorded that he told her that it was: "ok to get daily tabs + must do min of 3x NA". He prescribed Normison. She received the same prescription on the 9th, 11th, 12th and 14th January.
72 On the 16th January, the patient saw a colleague of the respondent. The note is "crying a lot ...cuts both wrists". She was prescribed the Normison and Zoloft. On 18th January she saw the respondent who continued the Normison and Zoloft.
73 She received Normison on the 18th, 19th, 20th, 21st, 22nd, 23rd, 25th, 27th, 28th and 30th January. The respondent's notes of the 21st January record that she was sometimes injecting the Normison which was being prescribed in capsule form.
74 On 30th January, her then boyfriend told one of the doctors at the practice that the patient had been anally raped the night before although there is no note of the patient mentioning it. The patient saw the respondent on 1st February and discussed the rape. She continued to receive regular prescriptions for Normison.
75 On 10th February, the notes record that the respondent: "pleaded with her to try and not shoot up Normison". She received a prescription for Normison on that day, and 11th, 12th, 13th even though she was observed to be: "a bit sleepy", told the doctor that she was prostituting herself and: "feels like killing herself". The respondent prescribed for her on 15th January. The patient continued to receive Normison which was later changed to Temaze.
76 On 24th February, the respondent noted that when the patient's boyfriend was shooting her up with Temaze, he hit an artery. The next prescription was issued on 26th February but in tablet form not capsule as before and there is a reference to her arm (presumably where she was injected). On 8th March there is a reference to her being off Methadone and using heroin. She is said to be depressed.
77 The patient continued to receive Temaze very frequently. On 30th March the notes are that she was using heroin daily. On 1st April she was given a prescription for Temaze plus two post-dated prescriptions for 3rd and 5th April.
78 The patient died sometime between 11 pm on the 7th May and 4 am on the 8th May 1999. The Coroner's report [55]noted:
- "This 16 year old girl was found dead in a bedroom of a boarding house... Empty bottles of Methadone, empty containers of Temazepam, Alepam and Diazepam as well as used syringes were seen in a small bin located in the room. The toxicological analysis revealed toxic blood levels of morphine and methadone and therapeutic blood levels of benzodiazepines."
79 The direct cause of death was recorded as: "the combined effects of opiate, methadone and benzodiazepine toxicity".
80 The respondent said that up to as late as June 1999 he believed that his treatment of this patient had nothing to do with her death. [56] He prepared a report dated 25th June 1999 for the Coroner on the death of this patient. [57] The respondent noted that he prescribed benzodiazepines at her request on her agreeing to attend three meetings of NA each week. The final paragraph of the report expressed the respondent's view;
"I am of the opinion her internal shame, pain and fear were so overwhelming and her relationship skills so undeveloped and her acting out with drugs and prostitution so contributing to her ongoing damage that this tragic kid just could not reach out to the human race sufficiently to allow her enough succour to survive".
81 The deaths of these two patients and the clear expressions in the Coroner's reports about the causes of death being a combination of benzodiazepines and opiates, did nothing to change the respondent's prescribing pattern or cause him to rethink his theory. He agreed that he only stopped prescribing as he was after the PSB investigation. [58]
82 Patient P first attended the practice in June 1997. He was on methadone. Over the period of time he was a patient of the respondent and his colleagues, he received increasing doses of benzodiazepines. Between January and April 1999, he received a total of 3,225 tablets of benzodiazepines.
83 Patient W received 6,400 benzodiazepine tablets between January and April 1999; averaging about 50 tablets per day. The patient was on methadone and, according to the notes had been released from prison in December 1998. The expert reviewer, Professor Bell, [59] said that the patient could not have had an habitual intake of benzodiazepines of this magnitude within a month of being released from prison. Professor Bell regarded the pattern of prescribing for this patient as "giving the patient a habit".
84 Patient A . The HIC printout for Patient A shows that he was receiving Diazepam which neither the respondent nor the other doctors in the Redfern practice prescribed. There was no note of this in the patient's file. Professor Bell commented that the pattern of prescribing for this patient showed escalating doses to what he described as "massive" levels, to the extent that in December 1998 the respondent prescribed 300 Serepax and 200 Panadeine Forte tablets for this patient. Despite a note that "this guy lies" in June 1998, the respondent continued to prescribe for him and, presumably accepted his assurances that he was attending NA.
Contracts
85 The respondent said that adherence to the contract to attend NA was a seminal part of his treatment theory. He said that he would send away any patient who was not anxious to engage in treatment. However, there were instances in the patient notes where it is clear that the respondent considered the patient to be a liar (Patient A) and on another occasion knew that the patient was not attending NA. For example, on 22nd December 1998 Patient Q's father rang to inform the practice that his son was injecting Normison, was behaving so erratically that he had taken an Apprehended Violence Order against him and said that his son never attended NA. This note was made by another doctor in the practice. At the bottom of that entry is a note drawing the next doctor's attention to that entry. The respondent was the next doctor to see Patient Q. The note was that he would get a privacy release (a Voluntary Agreement) form for the next visit and reminded himself to ask the patient about attending meetings. At the next visit, the respondent notes that the patient told him that his father was dead and a flat mate was impersonating his father (there is no indication that this was verified by the respondent). The patient told the respondent that he was attending three NA meetings a week. He was given a prescription for Normison and Serepax. The previous pattern of prescribing continued.
86 The respondent defended his continued prescription to these patients on the basis that in his clinical judgment, they were seriously trying to work at recovery. [60] He also maintained that he could tell whether a patient was, in fact, attending NA by asking questions about what had happened at the meeting. He persisted in this view despite acknowledging that drug-seeking patients were particularly manipulative and adroit liars who could easily discuss among themselves what to say to get a prescription. [61]
87 The respondent made no effort to verify independently whether the patients were attending NA, he never attempted to contact a nominated sponsor. [62] He agreed that it would be possible for a patient to gain enough information about NA either by going once or twice to a meeting or sharing information with another patient to make it appear that the patient was attending. Notwithstanding those possibilities he said that he was able to tell whether a patient was attending NA by "penetrating questioning".
88 The "reward" for entering into the contract to attend NA was that the patients would be prescribed benzodiazepines and other drugs at their request. In some cases it was not necessary for the patient to say that he or she was actually attending before the respondent would prescribe the benzodiazepines requested, agreeing to go in the future would result in a prescription.
Counselling
89 Counselling was a critical part of the theory adopted by the respondent. The basis for the counselling sprang from the respondent's view that the addicts had psychiatric problems and, he said, 90% of them had experienced childhood abuse. There is little in the notes to support this assertion.
90 Despite this the respondent never referred any patient to a psychiatrist and when a patient (DD) was admitted to hospital with an overdose, the respondent spoke to the psychiatrist who treated her but he did not seek further information.
91 He agreed that neither Dr Goodman nor Dr Nadel had any qualifications in counselling. He said that it was only a small section of counselling training which was necessary at the Redfern practice and he tried to train his colleagues in the basics needed to implement the theory, including such matters as being able to recognise whether a patient was indeed attending NA. The other doctors apparently did not need to understand or explore:
- "…the childhood trauma which was in most of these people they weren't anywhere nearly ready to process that stuff. It was going to take years for them to get to the psycho-dynamics". [63].
92 The respondent agreed, and it is starkly apparent from his entries in the patient notes, that Dr Nadel did little if any counselling. Often his notes simply record the repeated prescription of drugs already given. The respondent said that Dr Nadel "was not willing to go along with the way they'd said they would". Dr Goodman did more counselling but the respondent said he did not write extensive notes. [64]
Successes
93 In his letter to the Minister for Health [65] and his submission to the Section 66 Inquiry, [66] the respondent claimed that he had had significant success with his patients through implementing his theory. To demonstrate this, he prepared a series of graphs that was provided to the Section 66 Inquiry and produced to this hearing. He also produced a list of patients whom he regarded as successes [67] and said that they were "patients that were tapering off their intake and their visits, by tapering off their intake they would have to be tapering off their visits". [68]
94 During the Tribunal hearing the respondent said that he no longer regarded these patients as having been successfully treated because of the risks that he had put them through. [69] He had claimed that they were successes because: "anecdotally and statistically ... they were showing signs of improvement". He said that he hoped he could show: "that there was some benefit to the patients by going to NA and coming down on scripts". [70] He said that this improvement was demonstrated for each patient by the reduction both in numbers of prescriptions written and distinct prescribers reflected in the HIC Doctor Shopper printouts. [71] The respondent said that the HIC printouts vindicated his claim to success. However he agreed that the printout also showed that while there may have been a reduction in the number of doctors visited, in most cases, the daily dose of benzodiazepines remained the same and in some cases, increased. In relation to many patients, the daily dose reduced only when Drs Goodman and Nadel had their prescribing rights withdrawn.
95 The respondent agreed that in judging success he had not taken into account the part of the print-out which listed the daily dose of tablets. Even while conceding that there had been an increase in the daily dose in relation to some patients whom he had claimed as a success, the respondent said that it (the success of his treatment) "takes time". [72]
96 The respondent's answer that he "never thought of looking at the daily dose" when claiming success is, in the Tribunal's view, completely disingenuous.
97 The respondent sent graphs to the Medical Board which he said supported his claimed success. He conceded before the Tribunal that he had included in those graphs information which post-dated, not only the withdrawal of Dr Goodman and Dr Nadel's rights to prescribe, but also the withdrawal of his own rights to prescribe that a decrease in daily dose was noted.
98 In nearly every case which the respondent claimed as a success, the patient continued to doctor shop.
99 The respondent still claimed a degree of success before the Tribunal. He referred to a number of patients and said that they were "anecdotal" successes based on his clinical impressions. For example, one patient was apparently taking Rivotril for which he had a medical need, according to directions and another said that he had found a sponsor at NA.
Records
100 At the beginning of the hearing, the respondent conceded each particular of the complaint relating to his record keeping.
101 When asked about his medical records he said that he did not think that there was anything wrong with his clinical notes. He could not remember what information had to be recorded by a practitioner under the Medical Practice Act. [73]
102 The following evidence about his clinical records is illustrative of the respondent's attitude to his professional responsibilities:
"... I know it was different to the average general practice where you would be seeing people in a general practice. Technically yes I breached the Medical Practice Regulations Act (sic) ..."
He continued:
- "... our practice was a really special case where we were seeing some of the most difficult people and we were trying to get through it in a practical, pragmatic way."
103 Eventually, the respondent conceded that he had a "serious problem" with his clinical notes at the Redfern practice. [74] The respondent said that he now identifies himself on the notes and if he prescribes for his patients, he makes a note of the indication or dose. His present practice is almost entirely counselling. He has not done any course or reading on the proper method of record keeping for a medical practitioner. His notes are not seen by his colleagues. Dr Aitken, who works with the respondent at the HMC, said that if she sees one of his patients for a non-counselling consultation, she receives the patient's file but the counselling records are kept in a separate, confidential envelope within the file. The respondent has not asked her to look at his notes.
Isolation
104 In his evidence before the Tribunal the respondent attributed his conduct to professional isolation. He said that there was no-one trained in the same counselling method as he who could look at what he was proposing to do. As a consequence, he said that he spoke to no one other than his colleagues at the Redfern practice before embarking on his treatment regime.
105 Despite adopting a theory of treatment of addiction which he described as "elegant", the respondent only applied it at the Redfern practice. He said that if drug seeking patients attended the HMC they would be turned away because: "it was a different practice". [75] Given that, according to the respondent, the other practitioners at the HMC were supportive of him and that he did not realise at the time that what he was doing at the Redfern practice would incur their disapproval [76] the Tribunal finds it difficult to understand why he made no mention of what he was doing.
106 The Tribunal is satisfied that the respondent did not tell his colleagues at the HMC about his practice at Redfern because he was well aware that it would not meet their approval.
107 The Tribunal finds that any isolation was self-imposed. The respondent knew from the literature he was given as early as 1981, the names and telephone numbers of Drug and Alcohol experts and treatment facilities. He contacted none of his own volition. On one occasion he referred a patient to Dr Alex Wodak, a well-known expert in this area. He did that not because he sought advice or assistance but because it was a condition of him being allowed to continue to prescribe a Schedule 8 drug to the patient. He said that he did not associate with drug and alcohol experts because he felt that they would not understand what he was doing. [77]
108 The isolation and the protestation that the respondent could not associate with any colleagues to discuss what he was doing because his method was unorthodox and would not be readily understood by those not trained in the co-dependency theory rings particularly hollow because the respondent knew at that time that there was nothing in the theory to support him.
109 The Tribunal finds that the respondent kept the implementation of the theory to the Redfern practice because he knew it was, in essence, an experiment.
110 The respondent said that since coming to the notice of the PSB and ultimately the Tribunal, he has adopted a system to prevent him from being professionally isolated again.
111 He said that he regularly speaks with two people who are trained in co-dependency counselling, neither of whom is a medical practitioner. In 2004 the respondent began meeting with a psychologist, Rosalyn Daymon, for what he termed "supervision". The purpose, he said, was to allow him to discuss his present case-load with her and for her to provide peer review for him. Ms Daymon is a long-standing friend of the respondent and had been a patient of his at both the Redfern practice and at the HMC.
112 Ms Daymon wrote a reference for the respondent and also gave evidence about her supervision of his work. Her note of their first meeting was: "spoke of Redfern ... the process of realising that prescribing benzos as he had been was wrong". Ms Daymon referred to this note (and others) as being a "prompt" to which she could refer at a later stage. She was asked what about the prescribing of benzodiazepines was wrong in the respondent's opinion but she could not amplify the conversation on which her note was based. Ms Daymon's answers to questions were often unresponsive. For example, she was asked whether she understood the respondent to be well aware of the dangers to his patients from prescribing large amounts of benzodiazepines. [78] In response, Ms Daymon outlined the respondent's theory of treatment. Eventually she said that he had not discussed the dangers to his patients with her. The Tribunal formed the view that Ms Daymon was being protective of the respondent in her evidence rather than attempting to assist the Tribunal.
113 The respondent worked at the HMC with Dr Leonie Aitken. She gave evidence before the Tribunal. She said that since its inception the doctors at the HMC had regular meetings both formal and informal. At no time before the respondent was brought before the Medical Board had he told her of the way in which he was managing drug dependent patients at the Redfern practice neither did he discuss with her any problems which he might have had at the Redfern practice. Dr Aitken said that soon after the complaint was made, the respondent explained to her his rationale for treating addicted patients. In more recent times, she said, that he had said that he appreciated the risks to which he had exposed his patients. She did not approve of his treatment of the patients in the Redfern practice.
Credit
114 The applicant submitted that there was much in the evidence of the respondent which was contradictory and evasive and would lead the Tribunal not to accept him as a truthful witness.
115 The respondent asserted that he was not aware when prescribing that there was a risk of overdose from benzodiazepine consumption and that it was not until after the complaint was laid that he realised that there were risks associated with prescribing benzodiazepines. That statement was demonstrably false.
116 The respondent was asked whether he was aware of a risk of overdose and he said: "I didn't think there was much risk and ... any risk was outweighed by the good I could do them". [79]
117 He agreed that an entry in Patient Q records of the 11th December 1998: "took some sleeping pills, some he found at home ... went stupid, was taken to psychologist hospital..." was strongly suggestive of an overdose on sleeping pills. The respondent then modified his earlier answer and said that he meant that he was unaware of death resulting from overdose. [80]
160. During the period 22 February 1999 to 1 March 1999 the Practitioner contravened clause 84(1) of the Poisons and Therapeutic Goods Regulation 1994 by prescribing drugs of addiction (as defined by section 4(1) of the Poisons and Therapeutic Goods Act 1966) to Patient DD (as shown in Schedule DD) and failing to record the particulars of:
(a) the name, strength and quantity of the drug prescribed; and/or
(b) the maximum number of times the drug may be supplied on the prescription; and/or
(c) the directions for use as shown on the prescription.
161. The Practitioner contravened section 28(b) of the Poisons and Therapeutic Goods Act 1966 by prescribing Codeine Phosphate, being a drug of addiction (as defined by section 4(1) of the Poisons and Therapeutic Goods Act 1966) to Patient DD during the period 22 February 1999 to 1 March 1999 (as shown in Schedule DD) otherwise than in accordance with an authority given to the Practitioner, when the Practitioner knew or ought to have known that Patient DD was during that period of time an addict (as defined by section 27 of the Poisons and Therapeutic Goods Act 1966).
_____________________________
Karen Mobbs
Director of Proceedings
Health Care Complaints Commission
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