HCCC v Dr Kalarostaghi

[2009] NSWMT 2

New South Wales

Medical Tribunal

CITATION:	HCCC v Dr Kalarostaghi [2009] NSWMT 2
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission Dr Ali Hooman Kalarostaghi
FILE NUMBER(S):	40003 of 2008
CORAM:	Ainslie-Wallace, DCJ - Wright, Dr J M - Ng, Dr J - Kiel, Ms H
CATCHWORDS:	Impairment - Mental illness - Self-prescription - Prescription for relatives - Prescription in the names of other people for own use
LEGISLATION CITED:	Medical Practice Act 1992 Medical Practice Regulations Poisons and Therapeutic Goods Act 1966 Poisons and Therapeutic Goods Regulations
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 362; Director-General, Department of Community Services; re Sophie [2008] NSWCA 250; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; Rajagopalan v Medical Board of South Australia (unreported) Full Court Supreme Court SA 5.5.2998
DATES OF HEARING:	3 to 6 November 2008, 14 November 2008, 19 December 2008, 6 to 8 July 2009
DATE OF JUDGMENT:	27 August 2009
LEGAL REPRESENTATIVES:	I Bourke of counsel Instructed by Health Care Complaints Commision J R Young of counsel Instructed by Avant Law
ORDERS:	1 The respondent's name be removed from the register of Medical Practitioners and he not be permitted to apply for registration for a period of TWO YEARS from the date of the order; 2 The respondent pay the complainant's costs

JUDGMENT:

THE MEDICAL TRIBUNAL Thursday 27th August 2009

OF NEW SOUTH WALES

AT SYDNEY

No. 40003 of 2008

BETWEEN

Health Care Complaints Commission

Applicant

Dr Ali Hooman Kalarostaghi

Respondent

Deputy Chair: Judge A M Ainslie-Wallace

Members: Dr John Murray Wright

Dr Jude Ng

Ms Helen Kiel

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 name of the patients referred to in the proceedings.

1 The Health Care Complaints Commission (the 'complainant") brings two complaints against Dr Kalarostaghi (the 'respondent'). The complaint is annexed to these reasons for determination.

2 The first complaint alleges that the respondent is guilty of unsatisfactory professional conduct or professional misconduct as defined by sections 36 and 37 of the Medical Practice Act 1992 (the 'Act') in that he has demonstrated that the knowledge, skill or judgement possessed or care exercised by him in the practice of medicine is significantly below the standard expected of a practitioner of equivalent training and experience; that he has contravened a provision of the Medical Practice Regulation; contravened a condition to which his registration is subject and engaged in improper or unethical conduct relating to the practice of medicine.

3 The particulars of that complaint relate to the respondent prescribing medication for himself and for family members.

4 The second complaint alleges that the practitioner suffers from an impairment in that he suffers from a mental disorder and by reason of that impairment is not competent to practise medicine.

5 The particulars of that complaint are that the respondent has an addiction to deleterious drugs and/or poly-substance abuse and/or psychotic illness with paranoid delusions which detrimentally affects or is likely to detrimentally affect his physical or mental capacity to practise medicine. The particulars further allege that by reason of the alleged addiction, substance abuse and/or the psychotic illness, the respondent is not competent to practise medicine because he does not have sufficient mental capacity and skill to practise and/or does not have sufficient communication skills for the practise of medicine.

Background and history

6 The respondent was born in 1965. He graduated MBBS in 1993 and in February 1995 was granted general registration. Between 1994 and 2000 he worked in hospitals as a resident, senior resident medical officer and neurosurgical registrar. From 2000 until 2006 the respondent worked as a general practitioner in NSW.

7 In August 2004 the NSW Medical Board (the 'Board') was notified that on the 29th July 2004 the respondent had been admitted to hospital under the Mental Health Act where he was treated for paranoid delusions. He had been discharged in August, was subject to a Community Treatment Order made pursuant to the Mental Health Act and was receiving parenteral anti-psychotic medication. The Board was told that Dr Kevin Vaughn, the psychiatrist with the care of the respondent, had agreed that the respondent could return to work.

8 As a result of that notification, the Board determined that the respondent should be assessed by a nominated psychiatrist, Dr Susan Messner.

9 Some relevant background information is found in Dr Messner's first report dated September 2004. The respondent told her that some years before he had spent 5 days in hospital under the care of Dr Selwyn Smith, a psychiatrist who treated him for anxiety and some symptoms of paranoia. Dr Smith prescribed medication that the respondent said made him feel well.

10 In February or April 2003 the respondent travelled overseas and stopped taking his medication.

11 The hospital admission in July 2004 followed his family's expressed concerns that he believed there were intruders in the house. He was admitted as an involuntary patient. The hospital records note that his family said he had not taken his medication "for months" and was prescribing phentermine for himself. On being discharged, the respondent was bound by a 6-month Community Treatment Order (a 'CTO') that required him to receive his medication by injection.

12 At the time of Dr Messner's first report, the respondent was still receiving his medication by injection. Dr Messner recommended that it continue because he appeared to be doing well. She noted that he had very marked lack of insight but at the time of her report he appeared psychiatrically stable.

13 An Impaired Registrants Panel convened by the Board met with the respondent in November 2004. At this meeting the respondent told the panel that his hospitalisation in 2004 was an "error" precipitated by his parents' concerns. He said that he did not believe in antipsychotic medication. Although the Panel was concerned about the respondent's mental health, he was permitted to remain registered subject to conditions. The respondent objected to the imposition of conditions which he signed "under protest".

14 The conditions concerned the respondent's work and his health. The work conditions required that he work only in a group practice, notify the Board before any change in either the nature or place of employment, permit the Board to inform any employer of the conditions of registration and not work more than 40 hours each week.

15 The health conditions stipulated that the respondent was not to prescribe for self-medication, to choose and attend a general practitioner, attend a psychiatrist, take any medication prescribed and continue to attend Dr Messner for periodical reviews.

16 Dr Messner reviewed the respondent and reported to the Board approximately every three months.

17 In October 2006 the Medical Board received a investigation report from the Pharmaceutical Services Branch of the New South Wales Department of Health (the 'PSB') that the respondent was writing prescriptions for himself for centrally acting drugs, had prescribed for his family and had collected drugs prescribed by him for family members. The investigation was prompted by a report from a pharmacist that the respondent had attempted to obtain 90 capsules of phentermine.

18 As a result of that report, an Inquiry pursuant to section 66 of the Act was convened at which the respondent attended. The report of the Inquiry notes that the respondent refused to say when he last saw his treating psychiatrist or when he expected to see him next. He told the Inquiry that he kept prescription pads at home and prescribed for friends who drop by. He did not keep records of the consultations or charge the friends. He admitted to prescribing for family, to prescribing benzodiazepines for Patient A (a family member) and providing frequent prescriptions because she told him that she had lost the medication. He agreed that he had tried to obtain 90 capsules of phentermine from the chemist. He said that he had written prescriptions for Patient A for Tramadol but said that 80% were used by him. He also told the inquiry that he had injected himself with Pethidine 2 to 3 times in the past to experience the effects.

19 Based on these comments, the Inquiry concluded that the respondent had a poly-substance abuse problem that, coupled with his lack of insight, meant that he did not understand how his vulnerability was increased by the use of these drugs. It noted that he had breached the conditions of his registration about notifying the Board of a proposed change of employer and in self-prescribing. At the recommendation of the Inquiry, the Board suspended the respondent's registration.

20 The respondent's registration has been suspended since 22nd November 2006.

The Tribunal hearing

21 The complaint by the HCCC was made in January 2008 and the Tribunal hearing commenced on 3rd November 2008. It proceeded for three days before being adjourned after hearing argument on whether the complainant ought be permitted to amend the complaint. Leave was granted to amend the complaint and the hearing recommenced on 7th July 2009.

22 The respondent gave evidence both in November 2008 and in July 2009. In November, the respondent's position was that he was well and should be permitted to return to practise. At that time he was having regular appointments with his psychiatrist and he said that he was compliant with his medication. Regrettably, during the adjournment the respondent became unwell.

23 In July 2009 the respondent said that he was prepared to submit to a Community Treatment Order and receive his medication by injection should he be permitted to return to practise.

24 There was no dispute that the respondent has a mental illness and is presently unfit to practise. The issue for determination is whether there is a reasonable likelihood that he will become fit and the appropriate order for the Tribunal to make concerning the respondent's registration.

25 To determine this issue it is necessary to consider the history of the respondent's illness and his response to professional intervention.

History of Mental illness

26 The respondent had been a patient of Dr Vaughn from 2004 until 2007 when he resumed consulting Dr Smith who had cared for him in 2002.

27 At the time of the first review of the respondent by Dr Messner in January 2005, the respondent was receiving his medication by injection. Dr Messner thought that he appeared well although he demonstrated limited insight. In her later reports, Dr Messner commented that the respondent had limited insight and demonstrated no real understanding of his illness or its significance. At the December 2005 review the respondent told Dr Messner that he had stopped seeing Dr Smith and had returned to see Dr Vaughn at his family's insistence and Dr Vaughn had started him on injectable medication. Shortly afterwards the respondent stopped seeing Dr Vaughn and returned to see Dr Smith who, at the respondent's request, changed his medication from parenteral to oral. In following reviews the respondent told Dr Messner that he was reducing his medication in the hope that by October of 2006 he would no longer be taking any medication.

28 Dr Messner continued to report that the respondent was stable although in her view, at best he demonstrated limited insight.

29 In February 2007 Dr Smith wrote to the Board that the respondent was stable, compliant with his medication and, in Dr Smith's view, there was no impediment to the respondent resuming work.

30 On 19th March 2007 the respondent was admitted to hospital after his parents reported that he believed he was being spied on and was demonstrating increasing paranoia. They said that he had not taken his medication for months.

31 The respondent was discharged from hospital on 3rd April 2007 and was bound by a CTO made pursuant to the Mental Health Act for six months that he receive his medication by injection. Later that month the respondent saw Dr Smith and told him that he was seeking legal advice about having the order discharged. The respondent then went overseas returning a couple of days after the CTO expired in early October 2007. He did not inform Dr Vaughn, who had the responsibility for supervising the injections of medication, that he was leaving Australia.

32 Within weeks of his return home, the respondent was again admitted to hospital and, again treated for paranoid delusions and aggression. His hospitalisation was prompted by his parents' concerns for his mental health.

33 On his discharge the respondent was again subject to a six month CTO requiring him to receive his medication by injection. The respondent returned to consult Dr Smith and persuaded him to substitute oral medication for the injectable form.

Psychiatric Evidence

Dr Messner

34 Dr Messner gave evidence to the Tribunal in November 2008 and in July 2009. In February 2008 she saw the respondent and prepared a report for the Tribunal. She had not seen him since 2006. When discussing his hospitalisations in 2007 the respondent could not tell her the symptoms that he experienced at those times and said that he "must have been paranoid". Dr Messner said that the respondent was more open and less guarded than she had seen him before and his mental state examination appeared perfectly normal. At that time she considered him fit to return to practise subject to conditions.

35 Dr Messner said that in every interview she had with the respondent he had been evasive about his symptoms and had refused to answer some questions. She suspected that he was experiencing symptoms and his evasiveness led her to think that he was not telling her because he believed that by withholding that information she would make a report favourable to him.

36 After the hearing was adjourned Dr Messner reviewed the respondent in December 2008 and made a further report. She reported that he was relaxed and interactive during the interview. He told her that he was taking his medication and felt normal. He acknowledged to her the need for him to take medication and accepted that his present state resulted from complying with his medication. She maintained her view that he was fit to return to practise.

37 In April 2009 the complainant sent Dr Messner transcript extracts of the respondent's evidence of November 2008. She had a further interview with him. In that interview the respondent told her that he stopped taking his medication in February or March because he developed side effects. He believed he could recognise the symptoms of his illness if they returned. Dr Messner said that there were times during the interview when she could not follow his thought processes and although there was no clear evidence of delusions, she thought that some of his comments were bizarre.

38 She concluded that he has very poor insight into his health and the need for ongoing medication. Although he was able to recite some of the symptoms that he experienced when he had been sufficiently ill to warrant hospitalisation and said that he was experiencing some of those symptoms at that time he spoke to her, he could not see the connection between their appearance and that he may be falling ill again.

39 Dr Messner gave further evidence to the Tribunal in July and said that, based on her reading of the transcripts, the respondent's presentation to her in December was different from how he had apparently appeared in the Tribunal. She said the respondent was not as vague or poorly focused with her as he appeared while giving evidence. She thought that the stressful and extended nature of giving evidence made his lack of focus and disorganisation more apparent.

40 Dr Messner was asked how confident the Tribunal could be that a single or even repeated consultation with a psychiatrist would reveal a true picture of the respondent's condition. She said: [1]

"...it can be very difficult, particularly with someone like (the respondent) when he marginally improves and is then able perhaps to answer a bit more appropriately in a limited period of time.....in the future I think it could be very difficult to know exactly how well he is functioning or how good his judgment is."

41 Dr Messner said that reading the transcripts which included the respondent's history of illness, information from hospitals and information that he had gone overseas despite the obligations of a CTO, gave her a great deal more information than she had in the past and this had caused her to have reservations about his fitness to practise.

42 Dr Messner hoped that a consistent period of 12 months on medication would bring about a significant change in the respondent. She would want to review him after that time. When asked as to the likelihood that the respondent would be fit to practise after 12 months on continuous medication said: "there is a likelihood". [2]

Dr Smith

43 At the time of the Tribunal hearing in November 2008, the respondent had been consulting regularly with Dr Smith. Dr Smith said then that he was confident that the respondent had gained insight and accepted that he had a mental illness, understood its significance for him and the need to be compliant with medication. Dr Smith accepted that, in the past, the respondent had not complied with medication and his insight into his illness and the need for him to take medication had been poor. Dr Smith thought that in the 7 months prior to the Tribunal hearing the respondent had demonstrated compliance with his medication regime and this, together with his regular consultations with him, gave him more confidence that the respondent had developed insight and an acceptance that he is ill and that this boded well for the respondent's mental health in the future.

44 Dr Smith made a further report and gave further evidence at the resumed hearing in July 2009. In his report he said that the respondent had made a "unilateral" decision to stop taking the medication that had been prescribed. He said that despite discussions, the respondent remained extremely opposed to taking medication and was adamant that he did not need it. Dr Smith could not persuade him otherwise.

45 Dr Smith saw the respondent twice immediately after the last hearing in November and then saw him on the 25th May 2009 and they had two further consultations on 4th June and 15th June 2009. Dr Smith said that at these consultations the respondent did not demonstrate evidence of overt psychosis but Dr Smith believed that there was a possibility that the respondent might relapse and he was concerned about the respondent's mental stability.

46 Although during his consultations with the respondent, Dr Smith had not detected obvious bizarre florid symptoms consistent with mental illness he thought that what he called "negative symptoms" were present. The term refers to loss of normal functions, emotional deterioration, disorganisation, suspiciousness and in the case of the respondent, lack of judgment and insight which are his prominent symptoms.

47 When referred to his earlier confidence in the respondent's development of insight and acceptance of his illness, Dr Smith said that he had been wrong.

48 Dr Smith was somewhat pessimistic about the respondent's prospects even if he was to take medication because, while medication is effective in controlling obvious bizarre delusions, it is not as effective in controlling paranoid delusions or negative symptoms.

49 He agreed that there should be a concerted trial of medication for the respondent but observed that it had been very difficult to maintain the respondent on a reasonable therapeutic dose of medication because he complained of side effects and sought to have the dose reduced. He believes that the impediment to having such a trial is the respondent's reluctance to have an ongoing treatment regime and, compounding this, the respondent's emphatic position that he does not need or want the medication. Dr Smith said that at this time the respondent did not come within the terms of the Mental Health Act and so there is no power to force him to comply with a medication regime using a CTO.

50 Dr Smith was concerned that the respondent was going to relapse and develop more florid symptoms of delusions and hallucinations. While at first he diagnosed the respondent as having a delusional type disorder, he believed that the predomination of negative symptoms raises the prospect of an underlying paranoid schizophrenic disorder. He did not know whether the respondent's present amenability to taking medication would persist.

51 As to the prospect of change, Dr Smith said that what was required of the respondent was not just a sustained period of medication but engagement in therapy.

Dr Vaughn

52 Dr Vaughn had treated the respondent from 2004 until the end of 2007. He said that the respondent's mental illness was characterised by paranoid delusions. His diagnosis is of paranoid schizophrenia. Dr Vaughn said that the respondent generally acknowledged that he had a problem that caused his hospitalisations but when his condition improved and he became well, felt that he was unlikely to have a recurrence and complained that medication was unnecessary.

53 Dr Vaughn said that in the past the respondent responded very well to medication but was unreliable and would stop taking it with the result that the symptoms of delusions and hallucinations returned.

54 His firm view was that for the respondent to achieve stability of mental health, he needed to be on injectable medication for about 2 years and the negative symptoms may well respond to medication. Dr Vaughan's prognosis would be more optimistic if the respondent was to be compliant with his medication regime.

55 Dr Vaughn said that the respondent had fought hard against having depot medication and resents it very much. He said that in early 2008:

"(the respondent) fought tooth and nail not to be on the community treatment order and not to have the depot injection".

56 In November 2008 when Dr Vaughn first gave evidence to the Tribunal, noting Dr Smith's recommendation that the respondent was fit to return to work, agreed that the respondent's acceptance of a need to continue medication was an appropriate test to assess whether he is fit to return to practice. Somewhat prophetically, in answer to the proposition that compliance with medication was also an appropriate test for return to practise, Dr Vaughn said: "Self-report and compliance don't always correlate perfectly."

57 Dr Vaughn was sent extracts of the respondent's evidence to the Tribunal. Like Dr Messner, Dr Vaughn thought that the respondent's evidence appeared unfocussed and contradictory. He believed that at times the inconsistencies were such that it might indicate a reasoning impairment amounting to a formal Thought Disorder.

58 Dr Vaughn believed that before the respondent could be safely regarded as fit to practise he would need to have established a good working relationship with a psychiatrist whose advice he followed, be sufficiently organised to keep up with his medical reading and aspects of practice and establish, through mental state examination, that the respondent has rational thought processes. The longer the period of effective functioning, the more confident one could be as to the respondent's fitness.

Insight

59 All of the psychiatrists said that the respondent lacked of insight. Dr Vaughn defined insight as the ability to name one's disorder, cooperate with treatment and attribute one's core symptoms to the disorder. Those with schizophrenia tend to lose insight in the first five years of the illness. His experience is if those patients are placed on a CTO and received their medication by injection, over time they develop insight through the process of stability of condition and development of maturity. He said that often these patients come to accept that they have a mental illness and that treatment helps them to live more effectively and therefore compliance with medication ceases to be a problem. The key to determining whether a person has developed real insight is whether they cooperate with treatment.

60 When considering the respondent's future mental health, Dr Vaughn believed that the past predicted the future and, for the respondent, the past reveals that he has not developed insight. Dr Vaughn has not been convinced that the respondent has in fact been taking his medication when he said that he was being compliant.

Compliance with medication

61 The respondent has been significantly non compliant with medication prescribed for him in the past. The times during which he had been compelled to have the medication by injection were times in which he demonstrated relative stability of condition. The respondent has been greatly opposed to compulsory medication. Very often after the respondent stopped taking medication, his condition relapsed.

62 Dr Vaughn cited an occasion when the respondent was subject to a CTO and was receiving injected medication under his supervision. The respondent complained to Dr Vaughn and agreed that he would take oral medication if the CTO was lifted. Within three weeks of the order being discharged the respondent stopped taking the oral medication.

63 The respondent denied that he left Australia in 2007 to avoid the consequences of the CTO. However, on the whole of the evidence, the Tribunal is satisfied that there is a reasonable likelihood that he left Australia immediately after being subjected to a CTO requiring the administration of medication and returned when the order had expired to avoid being compelled to take the medicine.

64 There is also considerable support in the evidence that during periods when the respondent said that he was compliant with his oral medication, he was not. Dr Smith reported to the Board on 15th February 2007 that the respondent was stable. Within weeks the respondent was hospitalised with paranoid delusions. Dr Smith agreed that it was possible that the respondent had not been complying with his medication and Dr Smith was not able to detect this during the interview. Dr Smith had relied on the respondent's assurance that he had been taking his medication.

65 That the respondent was not in fact taking his medication at this time is amply demonstrated by the hospital records of his admission in March 2007 which record his parents observation that he had not been taking his medication for months before the admission.

66 At the time of the resumed hearing in July 2009, the respondent was not taking medication, over the opposition of Dr Smith.

The respondent's view

67 The respondent said in his amended response of July 2009:

"I admit that I have suffered from a paranoid illness. I accept the seriousness of that illness. I intend to comply with the advice given me by my doctors. I am willing to accept a Community Treatment Order and to use a depot form of medication as suggested by Dr Vaughn..."

68 In his evidence to the Tribunal in July 2009, the respondent agreed that his apparent acceptance of a CTO was a change in attitude for him. He said that;

"Well, I'm thinking that if I have a mental illness that is best treated by a community treatment order being necessary ...such a regime being suggested by a specialist, then there's obviously reasoning in that, but I don't see that."

69 He was asked whether he thought he should be on a CTO and he replied: "No".

70 As to why he now consents to having his medication injected, the respondent said that in the past he had difficulty with the side effects from the medication and said:

"... my understanding is that when medication is prescribed all of the side effect risks are being weighed by the specialists, so they can manage it. If depot is recommended, that's fine."

71 There was no doubt that at the time he gave this evidence the respondent was mentally unwell and although he said that he would accept injected medication, when compared with his past vehement opposition to depot medication, the Tribunal is not persuaded that he will now accept injected medication.

72 The respondent said in November that he understood how important it was to maintain contact with Dr Smith and to comply with medication. Even in 2008, there were parts of his evidence which appeared to be inconsistent with Dr Smith's view that he had developed insight into his illness. The respondent denied that he had been mentally unwell in 2007 when he was admitted to hospital. He said that the first hospitalisation in 2007 was because his parents were concerned to see that he took his medication even though he said that he was in fact taking his medication at that time. He did not accept that he had been delusional as reported by his family.

73 There is little point traversing all of the respondent's evidence in November 2008 or indeed why Dr Smith's confidence that the respondent had developed insight was, as he said: "Wrong". The Tribunal is of the view that it was as Dr Vaughn said: "... a false dawn".

Drug abuse

74 Part of the complaint as to the respondent's fitness alleges that the respondent suffers from a deleterious drug and/or from poly-substance abuse and as a consequence is unfit to practise medicine.

75 The respondent told the Section 66 Inquiry that he had prescribed and injected himself with pethidine in 2001 to see the effects of it on him. As a result of this and other statements made by him about prescribing for himself, he was told that he should seek treatment for substance abuse from an expert recognised in the field and undergo urinalyses.

76 The respondent did not engage such an expert until 15th January 2008 when he saw Dr Glenys Dore, a recognised expert. In her first report, Dr Dore noted that the history given to her by the respondent contradicted much of what he had said to the Section 66 Inquiry and to her the respondent denied ever having injected pethidine, although he agreed that he had told the Board that he had. The respondent maintained that denial before the Tribunal. At the Suspension Review hearing in 2008 the respondent denied much of what he had said to the Section 66 Inquiry in 2006 saying that he had felt offended and annoyed at the questions being asked by the Board members and had given them false information. The respondent agreed that the Board Members had not asked him whether he had abused pethidine but it was something he had volunteered. He did not explain why he chose to volunteer information about injecting pethidine and not some other drug.

77 A great deal of the information that the respondent gave Dr Dore in this first appointment was contradicted by the evidence in the hearing. He told Dr Dore that he had prescribed phentermine twice for himself over a 2-month period in 2002 and told her that he was using it for weight loss. The respondent saw Dr Dore again in November 2008. In this interview he produced the schedules of prescriptions prepared by the PBS. He said that it had "slipped his mind" that he had prescribed for himself and "was not aware" of how much he had prescribed until he saw the schedules.

78 Dr Dore considered three possibilities why the respondent gave conflicting accounts about this; that he may be minimising his substance abuse and is in denial; that he did not have a substance abuse problem but was mentally unwell at the time of the Section 66 Inquiry or his lack of clarity might reflect personality factors coloured by an underlying psychiatric illness. In her later report, having seen other reports on this issue, Dr Dore said:

"The severe lack of judgment he demonstrated in admitting then later denying other substance use (Pethidine and Tramadol) remains unexplained. He continues to maintain this reflected a disturbed mental state at the Section 66 Inquiry when he misrepresented himself, though this was not evident to the Inquiry members during the hearing".

79 Throughout 2007 and 2008 the respondent submitted himself to relatively frequent urinalyses. Apart from two results that were positive for benzodiazepines, they have been negative. The positive results occurred around the time of the respondent's discharge from hospital and it was suggested that they could be attributed to him receiving benzodiazepines in hospital. The Tribunal can make no finding about those results.

80 The respondent conceded to the Tribunal that he had a substance abuse problem and had abused both phentermine and benzodiazepines. He said that he believed that the problem ceased at around the time he stopped prescribing for himself. According to the schedules prepared by the PSB, the last prescription he wrote for himself was in either in August 2005 or November 2005. [3]

81 Dr Dore believed that the respondent minimised his self-prescribing. However she concluded that the respondent appeared to have some insight into the inappropriateness of prescribing for himself and family members. She saw no evidence of present substance abuse.

82 The Tribunal is satisfied that in the past the respondent has abused phentermine and benzodiazepines which he prescribed for himself. However there is no evidence on which the Tribunal could find that this constitutes an ongoing problem. It appears to the Tribunal that the respondent's self-prescribing is bound up with his mental illness.

Discussion

83 Complaint 2 alleges (inter alia) that the respondent is impaired and as a result is not competent to practise medicine.

84 The Medical Practice Act defines "impairment" as:

"A person is considered to suffer from an impairment if the person suffers from any physical or mental impairment, disability, condition or disorder which detrimentally affects of is likely to detrimentally affect the person's physical or mental capacity to practise medicine."

85 Section 64 is also relevant to this matter:

The Tribunal may by order suspend a person from practising medicine for a specified period or direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person):

(a) that the person is not competent to practise medicine;

86 The jurisdiction of the Tribunal is a protective not punitive one. The purpose of disciplinary proceedings is to maintain proper ethical and professional standards in protection of the community and also to protect the good standing and reputation of the profession.

87 The complainant sought an order that the respondent's name be removed from the register and that he not re-apply for registration for 2 years. The respondent urged the Tribunal to make an order suspending the respondent rather than one of deregistration.

88 Counsel for the respondent argued that the Tribunal would only order the respondent be deregistered where there was no hope that with time the respondent would become well enough to resume medical practice.

89 What are the respondent's prospects of improvement? There is no doubt that the respondent is unwell and unfit to practise. Whether he becomes fit is a complex matter.

90 All psychiatrists agreed that the respondent needs to have a sustained period on medication to achieve stability of mental health and to begin the process of developing insight. How long that period should be was a matter of difference between them. Of course, as well as achieving mental stability, the respondent would need to bring himself up to date with current medical matters. Dr Vaughn said that there needs to be a mental state examination to ensure that the respondent's underlying thought processes are not confused. He said that even at times when the respondent appeared relatively well (such as during the November hearing) he was concerned that his thought processes were confused.

91 The respondent placed great emphasis on the evidence of Dr Messner that after a period of 12 months compliance with medication there was a "likelihood" that the respondent might be fit to resume practise. It was argued that in saying there was a likelihood, Dr Messner was referring to something more than a bare possibility. While Dr Messner may not have meant a "bare" likelihood, the Tribunal finds that she conveyed in this evidence her view that it was possible that the respondent might be fit to practise. She also said that before she would be prepared to express a view about the respondent's fitness after 12 months on medication, she would wish to examine him.

92 Although the respondent said that he would accept a CTO and/or medication administered by injection, his past history shows a significant resistance to that course. More importantly, as Dr Smith said, if the respondent is not sufficiently ill to fall within the provisions of the Mental Health Act by which a CTO may be made, there is no way to compel him to accept medication at all in any form.

93 The Tribunal has no confidence that the respondent will co-operate in receiving injectable medication.

94 The respondent's past conduct also demonstrates significant non-compliance in taking the prescribed oral medication. Dr Smith said that it had been difficult for him to maintain the respondent on an effective dose of oral medication because the respondent's frequent complaints of side effects caused the dose to be reduced. The Tribunal is also satisfied that there were times when the respondent said he was taking medication when he was not.

95 Perhaps the most persuasive evidence on this issue is the respondent's current state. Dr Smith said in November 2008 that the respondent was acutely aware of the importance of the Tribunal hearing and its possible consequences for him, was taking his lawyer's advice and attending Dr Smith frequently. Dr Smith accepted the respondent when he said that he was complying with the prescribed medication. There can be no doubt that since 2004 the respondent has wanted the suspension of his right to practise lifted and was clearly intent on being restored to practise in the Tribunal hearing. That he could not maintain his compliance with medication under those circumstances speaks strongly to the Tribunal about his ability to do that in the future.

96 The respondent's history of non-compliance with medication, his resistance to CTO and Dr Vaughn's well-founded view that the respondent says he is compliant with medication when he is not, cause the Tribunal to have grave concerns whether the respondent can even manage this first step on the road to being sufficiently well to recommence practise.

97 Even if the respondent were able to comply with the dictates of his medication regime, if Dr Smith's prediction is correct, it may not be effective to counter the negative symptoms which among other things act to impede the respondent from keeping up to date with medical knowledge.

98 The main impediment to the respondent being fit to resume the practice of medicine is not only his mental stability but developing insight into his condition and acknowledging both the fact of the illness and that it is with medication that he can function effectively. Until the respondent develops that insight, the prospects of him being well enough to practise are, in the view of the Tribunal, remote.

99 It is important to observe that to be fit to practise, not only is it necessary for a medical practitioner to demonstrate mental stability but also be free from underlying thought disturbances. A medical practitioner must be able to make rational decisions about important matters concerning his patient's health without fear that his thinking processes are clouded by an underlying mental illness.

100 It was submitted that a period of suspension should be accompanied by conditions that would encourage the respondent to achieve mental stability and to ensure that he not resume practice if he were not well.

101 The respondent was much against the conditions imposed on his registration in 2004, made a number of requests to have the conditions removed and said that it had been a mistake to agree to them. He has acted in breach of those conditions by self-prescribing and he breached the condition about changing his place of work. The Tribunal is not confident that the respondent would comply with any conditions imposed as part of a suspension order.

102 It was contended for the respondent that the appropriate order to be made was to suspend him for a further period subject to conditions that he not practise until he was certified as mentally fit by a Board nominated psychiatrist; that certification be not given unless the respondent has undergone treatment approved by a psychiatrist of his choice and satisfied the Board nominated psychiatrist that the treatment has been appropriate and he has complied with that treatment. It was proposed that the respondent be not permitted to seek a review of those conditions for three years. Finally it was proposed that, if the respondent was not certified fit to practise within three years from the date of the order imposing the condition, the respondent not thereafter make an application for certifications.

103 The respondent submitted that an order for de-registration carried with it a sense of disgrace or opprobrium. Perhaps to the wider, uninformed community, that may be. However that cannot afford a reason for not making the order if the Tribunal thought it appropriate to do so.

104 An order for suspension carries with it the implication that a practitioner, while currently unfit, is likely to become fit at the conclusion of the period of suspension. [4]

105 The Tribunal has formed the view that there is no reasonable prospect, in the near future, of the respondent becoming sufficiently well to be regarded as fit to resume practice. The Tribunal can see no purpose in making an order for suspension on conditions, even the stringent conditions proposed on behalf of the respondent.

106 The Tribunal finds that the only order that is both necessary and appropriate in the exercise of its functions is that the respondent's name be removed from the register of medical practitioners and that he not apply to be re-registered for 2 years. The order for deregistration will permit the respondent to do that which he can to become fit for practice and, if he does become fit make application for re-registration.

Complaint 1

107 This complaint relates to the respondent's prescribing of medications.

Self-prescription

108 Particulars 1 and 2 relate to prescriptions written by the respondent for his own use. In his amended response of 3rd July 2009, the respondent admitted the particulars.

109 Particular 1 concerns seven prescriptions for Lipitor and Nexium that the respondent wrote for himself. From November 2004, the respondent's registration was conditional. The conditions included him not prescribing for himself. The conditions were imposed after the Impaired Registrants Panel met with the respondent. He was informed at the time of the conditions to be imposed. The respondent was also notified of the conditions by letter dated 23rd December 2004. Every three months thereafter the respondent was reviewed by the Impaired Registrants Panel. At each he was asked whether he was complying with the conditions of his registration. At each, he told the panel members that he was.

110 On 28th December 2004 the respondent wrote a prescription for himself for the drug Lipitor. Thereafter he self-prescribed either Lipitor or Nexium 6 more times.

111 He was asked at the Tribunal hearing why he prescribed in contravention of a condition of his registration. He said that he was continuing drugs already prescribed and, although he conceded that he knew that he was breaking a condition, said that he did not equate writing those prescriptions with self-prescribing. At this time the respondent had a general practitioner who he was consulting but whom he had not asked to write the prescriptions.

112 The respondent was asked why he told the Medical Board that he was complying with his conditions when he knew that he was not. He said that he did not deliberately give the Board false information but had "overlooked" the fact that he had contravened a condition of his registration.

113 It is difficult to accept that the respondent overlooked the contravention. He was present when the conditions were imposed and received a letter setting out and confirming the conditions. The respondent said that when the Board members asked whether he had complied with the conditions it "slipped his mind" that he had prescribed for himself. Sometimes the prescriptions were written within a very short time of the meeting with the Panel.

114 He was asked why he had initially denied in his response to the complaint that he had written the prescriptions in contravention of the condition and said that when he denied the particular he was "relying on my memory". He said that he thought he had written them before the condition was imposed and what was in the PBS schedule reflected repeat prescriptions. At the time that he prepared his response to the complaint he had been served with the schedules. Later, he said that he had not understood the prescribing schedule documents.

115 The respondent's evidence to the Tribunal about this was not credible. He had possession of the PSB documents and schedules at the time of the hearing and had the benefit of expert legal representation. Equally, it is not credible that a matter of days after being notified in writing of the condition that he would not have had it squarely in the forefront of his mind when he wrote those prescriptions and would have known that to prescribe was a deliberate breach of the condition. It is to be remembered, when assessing the respondent's evidence that he believed that the schedules were referring to repeats of prescriptions written by him before the conditions were imposed, that he himself had written the prescriptions to which the schedule referred. How he could have been under any misapprehension about what the schedule meant was not explained in his evidence.

116 Dr Smith and Dr Vaughn both said that the respondent was greatly opposed to the conditions on his registration and the respondent himself told the Board as much. The Tribunal finds that the more likely reason for the breach was the respondent's refusal to acknowledge the conditions and an intransigence to being under the supervision of the Board. There is considerable support in the undisputed evidence for this finding. During the time that the respondent was being monitored by the Impaired Registrants Panel he made frequent requests for the conditions to be lifted or modified. On several occasions he changed his employment without first notifying the Board that he had done so in breach of the conditions.

117 The Tribunal finds this particular proved

118 Particular 2 relates to prescriptions that the respondent wrote for himself for "prescribed restricted substances" and alleges that he prescribed the drug for himself in quantities and for a period in excess of the recognised therapeutic standards of what is medically appropriate. The drugs were phentermine, diazepam, oxazepam and lorazepam and were prescribed between August 2002 and May 2004.5 The particulars were admitted by the respondent.

119

The respondent said that he used phentermine to control his weight. He denied he used it for its amphetamine-like qualities. Under his own prescription he obtained multiple packets of phentermine at one time. On 11th September 2003 he obtained 4 packets of the drug and on the 27th September he obtained a further 5 packets. On 6th December he obtained 6 packets of the drugs. The rate of consumption of the drug as reflected in those prescriptions, exceeded the usual and maximum daily dose recommended for this drug. The respondent admitted that he abused this drug during the period of self-prescribing.

120 At the same time as the respondent was prescribing and using phentermine, he was also prescribing benzodiazepines for himself. According to Schedule 2 to the complaint, the respondent prescribed two different benzodiazepines at the same time. On the 25th February 2004 he prescribed diazepam and oxazepam for himself and on the 23rd May 2004, prescribed diazepam, lorazepam and oxazepam for himself. He admitted that in the period to which the schedule relates he abused benzodiazepines.

121 The respondent's admission that he was abusing these drugs and his concession that the amounts prescribed for himself exceeded the recommended therapeutic standards of what is medically appropriate and for a period in excess of recognised therapeutic standards is, in the view of the Tribunal, properly made.

122 The Tribunal finds this particular proved

Self-Prescription of Pethidine

123 Particular 3 alleges that in 2001 the respondent prescribed pethidine for himself in circumstances where it was not clinically indicated. Particular 4 alleges that the respondent did not keep records of the prescribed pethidine in contravention of the Poisons and Therapeutic Goods Regulations.

124 This complaint derives from the respondent's evidence in the Section 66 Inquiry on 22nd November 2006 in which he said that in 2001 he had written a prescription and injected himself with pethidine two or three times to see the effects.

125 The respondent submitted himself to regular and frequent urinalyses in 2007 and 2008, none revealed use of pethidine.

126 The Tribunal must be satisfied as to the matters complained of on the balance of probabilities. In approaching the proof of the complaints, the Tribunal applies the "Briginshaw" test. While this does not mean that some higher test than that applicable to other matters where proof is to be found on the balance of probabilities, the Tribunal is required to have regard to;

"The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been provided to the reasonable satisfaction of the Tribunal." 6

127 In Director-General, Department of Community Services; re Sophie [2008] NSWCA 250, the court considered the balance of proof where the "Briginshaw test" applies and said at paragraph 68:

"As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly."

128 It is clear to the Tribunal that the respondent has a mental illness that affects him sometimes more than at others. In some circumstances the respondent may appear to be "psychiatrically stable" as both Dr Messner and Dr Smith found and yet shortly afterwards be hospitalised with significant psychotic symptoms. The Tribunal cannot exclude from consideration that at the time of the Section 66 Inquiry hearing the respondent may have been mentally unwell and made false claims about what drugs he had taken. Of course, that is not to say that the Tribunal discounts everything that the respondent said in that hearing. However, in respect of this particular, there being no evidence of self-prescription of pethidine other than what the respondent said of himself, the Tribunal cannot find the particulars proved to the requisite standard.

Prescribing for Family Members

129 Particulars 5, 6, 7 and 8 allege that the respondent prescribed benzodiazepines for family members and particulars 5, 6 and 7 allege that the periods in which those drugs were prescribed were in excess of the recognised therapeutic standards as to what is medically appropriate.

130 Particular 5. The respondent admitted that he prescribed benzodiazepines for a family member (Patient A) between January 2000 and November 2006. The respondent denied that the drugs were prescribed in quantities in excess of recognised therapeutic standards of what is medically appropriate or that they were prescribed for a period in excess of recognised therapeutic standards.

131 During the Section 66 Inquiry the respondent was asked about the amounts of benzodiazepine he prescribed for Patient A and why it was that on some occasions he prescribed the same drug twice on the same day or wrote prescriptions separated by a few days. He said that Patient A told him that she had lost the prescriptions. When asked whether he was concerned about the possibility of Patient A being addicted he said it was: "a good point".

132 He said to the Tribunal that he believed that Patient A had only lost one prescription. The balance of the prescriptions written by him for Patient A were not in response to her having told him that she had either lost the prescription or the drugs.

133 The respondent said that at this time Patient A had a high use of benzodiazepines. The drug had been prescribed by another general practitioner and the respondent continued the prescription. He agreed that while he was prescribing for her, Patient A was also seeing two other general practitioners who, to the respondent's knowledge, prescribed benzodiazepines for her. The respondent said that she saw the other doctors infrequently and he knew how many tablets she was consuming.

134 Between 16th December 2004 and 17th February 2005, Patient A collected 250 alprazolam and diazepam tablets on the respondent's prescription.

135 The respondent said that he prescribed two benzodiazepines at one time for Patient A to control panic attacks and symptoms of anxiety. Although the prescriptions written for this patient contained instructions for dose of one or two tablets a day, the respondent said that the patient was using more than that dose but had instructions how to take them and, as he was living with her, he could supervise her intake.

136 The respondent accepted that writing prescriptions at the frequency revealed in the schedule could have posed a risk to Patient A of intoxication and of dependence. The respondent agreed that it is recommended that benzodiazepines be prescribed for short periods and are not indicated for long term use, but yet prescribed for patient A over a period of 6 years.

137 A schedule prepared after final argument set out the amounts prescribed for Patient A and the recommended dosage maxima for patients, particularly elderly patients. The information was taken from MIMS.

138 The schedule analysed the average daily doses of the various benzodiazepines prescribed by the respondent for Patient A. The amounts of alprazolam prescribed, while not exceeding the recommended daily dose for an adult of 10mg per day, exceeded the maximum recommended daily dose for an elderly person of .75mg. Equally the prescribed daily average dose of diazepam was not in excess of the average daily dose for an adult but exceeded the maximum recommended for an elderly patient of 4mg per day.

139 The schedule so far as it set out the amounts prescribed averaged on a daily basis and its assertion as to the recommended therapeutic dose for adults and elderly patients was not challenged. The respondent disputed that Patient A was elderly and argued that the term "elderly" in the sense intended by MIMS meant "frail elderly" and observed that there was no evidence as to Patient A's age.

140 True it is that there is no evidence of Patient A's age however, given the relationship of Patient A to the respondent and his age, it is a reasonable assumption that she is elderly. The respondent did not elaborate in the response to the schedule to why the term "elderly" should incorporate a notion of frailty. The entry in MIMS for alprazolam makes the following recommendation:

Elderly or debilitated patients "such patients may be particularly susceptible to the sedative effects of benzodiazepines and associated giddiness, ataxia and confusion which may increase the possibility of a fall. For elderly or debilitated patients the dosage should be limited to the smallest effective amount to preclude such effects".

141 The recommended therapeutic dose incorporates the notion that a medical practitioner will exercise skill, judgement and care in determining the doses of drugs prescribed bearing that recommended dose in mind. A medical practitioner exercising that judgment may for a time increase the dose beyond that which was recommended in MIMS. To exceed the amount recommended for a patient would not, of itself, lead to a complaint of failure to exercise the requisite skill and judgment.

142 It is pertinent to note that Dr Bunker, who provided a peer review for the Tribunal, said that a medical practitioner who prescribed these drugs must have a framework of assessment and regular review to determine effectiveness and compliance. If, as it might appear, the respondent was mentally unwell for some of the periods of prescribing, he could hardly be in a position to undertake that task effectively or at all.

143 In this case, the Tribunal is satisfied that the respondent exercised no skill or judgment in prescribing for the family member. That the average daily dose in fact conformed to the recommended daily maximum for adults seems to the Tribunal to be a matter of good luck rather than good management. The respondent's response to the Section 66 Inquiry when discussing the possibility of addiction to benzodiazepines in Patient A as "a good point" seems to illustrate this clearly.

144 As will appear, the respondent kept no record of what he was prescribing for this family member and, it seems to the Tribunal, was prepared to write a prescription without question when told that the previous prescription had been lost and also write frequent prescriptions.

145 It is relevant to a consideration of the respondent's prescribing for this patient that for a period between 17th February 2005 and 19th October 2006 he prescribed two concurrent benzodiazepines, diazepam and alprazolam. It is well accepted that it is inappropriate to prescribe benzodiazepines in this way.

146 The respondent conceded that he prescribed for Patient A and the Tribunal finds the particular proved. Based on the respondent's concession in evidence that benzodiazepines are not indicated for long term prescription and the uncontested evidence that he prescribed benzodiazepines for Patient A for a period of 6 years, the Tribunal is satisfied that the respondent prescribed benzodiazepines for the patient for periods in excess of recognised therapeutic standards.

147 As to the amounts prescribed, although the average daily dose as reflected in the respondent's prescriptions was not in excess of the absolute daily maximum, for two of the three benzodiazepines prescribed by the respondent, they considerably exceeded the maximum recommended daily dose for an elderly patient. However, since there is no evidence of the age of the relative and in the face of the denial, the Tribunal cannot find that the drugs were prescribed in amounts exceeding the recognised therapeutic dose.

148 Particular 6 relates to another family member, Patient B, for whom the respondent admits that he prescribed benzodiazepines, principally diazepam and occasionally oxazepam. The particular further alleges that the period in which the drugs were prescribed was in excess of recognised therapeutic standards of what is appropriate. The schedule to which this particular relates shows that the respondent prescribed for Patient B from February 2000 to 29th October 2005. It also shows that on one occasion, the respondent prescribed two different benzodiazepines for the patient on the same day and on another, the respondent prescribed oxazepam 25 tablets at 30mg and ten days later prescribed a further 25 tablets.

149 The respondent told the Board that he had "occasionally" written a prescription for family members. The schedule makes it clear that had had written many more than the "occasional" prescription.

150 Although the respondent's answer to the amended complaint neither denies nor admits that allegation that the period over which he prescribed the benzodiazepines exceeded recognised therapeutic standards, given his evidence in relation to his prescribing for Patient A that he was aware that benzodiazepines are not recommended for long term prescription and that the period of prescribing was over 5 years, the Tribunal has no difficulty in making the finding that his prescribing was in fact in excess of that recognised period.

151 The Tribunal finds this particular proved.

152 Particular 7 relates to the prescription of phentermine, known as Duromine, for a family member, Patient C. The respondent admitted the fact of prescribing but denied the allegation that in prescribing he did so in excess of the period recognised by therapeutic standards.

153 According to the schedule of prescriptions written by the respondent for Patient C he prescribed phentermine for her from July 2001 until 22nd March 2005 albeit not continuously. On a number of occasions the respondent wrote two prescriptions at the same time, one for 30 tablets of 15mg and the other for 30 tablets of 40mg strength.

154 Patient C said that the respondent was her general practitioner between 2001 and 2005. She took phentermine prescribed by him in 2001 and "pretty much all" of 2002 and said that there might have had a week or two in 2002 when she was not taking the drug but otherwise took it for the whole year.

155 The respondent was not sure whether he had prescribed for Patient C over that period and said that it was not his recollection. He agreed that the schedule showed she had received prescriptions for phentermine from him over those years and agreed that if Patient C was right and she took Duromine for all of 2001 and nearly all of 2002 on his prescription, the schedule prepared by the PBS did not show the full extent of his prescribing for her.

156 The respondent agreed that phentermine is a drug intended for short-term use.

157 The Tribunal finds this particular proved.

158 Particular 8 refers to the respondent's prescription of the same drug, phentermine, for another family member, Patient D. The respondent thought that in relation to Patient D, the schedule prepared by the PSB did not in fact record all of the prescriptions written by him for her. This particular was admitted

Failure to make and keep records

159 Particulars 10,11 and 12 allege that the respondent failed to maintain records of the prescribing for himself and the family members in contravention both of the Regulations to the Medical Practice Act and also the Poisons and Therapeutic Goods Act in relation to prescribing for himself and for family members as set out in Schedules to the complaint.

160 The respondent admitted particulars 10 and 11 but denied particular 12. In his evidence to the Tribunal, the respondent agreed that he kept no notes or records of his prescribing for family members and the Tribunal thus finds all particulars proved. Based on his evidence that he kept no notes of his prescriptions to which particular 12 relates, the Tribunal finds this particular proved.

Attempt to obtain large amounts of phentermine

161 Particular 13 is the subject of contention both as to its content and form and is as follows:

"On 3 July 2006, the practitioner attempted to obtain a prescribed restricted substance for his own personal use from Jacki Cole Pharmacy in contravention of section 16 PTGA and when it was not clinically indicated."

162 Rick Samimi, a pharmacist and principal of the named pharmacy, provided a statement and gave evidence to the Tribunal that on the 3rd July 2006 the respondent telephoned him and asked him if the pharmacy would dispense multiple packets of Duromine on prescription. Mr Samimi told the respondent that the pharmacy would only dispense one packet of Duromine at a time on prescription. Mr Samimi reported the matter to the dispensary manager in accordance with their internal protocols.

163 In his response to the particular, the respondent said:

"I spoke to the chemist on 3 July 2006. It was not a serious conversation. It has been taken out of context."

164 The respondent has given several different accounts of this event. He admitted to the Section 66 Inquiry that he had attempted to obtain 90 capsules of Duromine from a pharmacist in July 2006. He later said that he had not and offered a number of accounts of the conversation and the circumstances of the telephone call. The respondent said to the Tribunal that he rang Mr Samimi because they had known each other at university and the respondent had worked at a medical centre near that pharmacy. The respondent said that he did not ask for any medication but in the course of a genial conversation, the issue of Duromine was raised.

165 This version of events was not put to Mr Samimi and counsel for the respondent did not challenge Mr Samimi's account. The Tribunal has no reason not to accept his evidence that the respondent made that enquiry of him. The Tribunal finds that the conversation is consistent with the respondent's demonstrated and conceded past conduct of obtaining multiple packets of Duromine at one time.

166 It was submitted for the respondent that the Tribunal could not be satisfied of this particular. First it was argued that by definition the respondent could not have committed the breach of section 16 the Poisons and Therapeutic Goods Act.

167 Section 16 of the Poisons and Therapeutic Goods Act states:

(1) A person shall not have in his or her possession or attempt to obtain possession of a prescribed restricted substance unless:

(a) the person is a medical practitioner, pharmacist, dentist or veterinary practitioner, and the person obtains possession or attempts to obtain possession of it in the lawful practice of the person's profession as such

168 It was argued that a request from a medical practitioner for provision of a drug under prescription written in the practice of his profession cannot contravene section 16. The Tribunal accepts this argument.

169 It was then argued that, although by its terms the particular also raises another allegation, that is that the respondent attempted to obtain the drug for his own use when it was not clinically indicated, the Tribunal could not sever part of the particular and act on the balance.

170 If it be accepted that the purpose of particulars is to inform the respondent of the case alleged against him so that he can meet the case without surprise, it is difficult to understand why the particular cannot be treated as if it alleged two acts albeit in the one particular. It was not argued that the respondent was surprised, disadvantaged or that any injustice arose but that it could not be done.

171 The second part of the particular depends on the same facts which were, in the result, uncontested. The Tribunal finds that in this case, since the respondent was well aware of the substance matter of the particular, no unfairness or injustice would flow from severing part and considering part. The Tribunal is of the view that it is able to sever so much of the particular that relates to section 16 from the balance.

172 The balance of the particular alleges that the respondent attempted to obtain a prescribed substance for his own use when it was not clinically indicated. There seemed little doubt that the respondent had abused Duromine in the past and had obtained multiple packets of the drug dispensed to him at the one time. The respondent agreed that Duromine was a drug not indicated for long-term use. The Tribunal is satisfied that to obtain multiple packets at once is not clinically indicated for any patient. The Tribunal is also comfortably satisfied that the respondent intended the drugs, if obtained, for his own use.

173 An issue arose during the submissions as to whether the respondent's approach to the pharmacist could amount to an attempt to obtain the drug.

174 Although there was some debate during submissions about whether resort could be made to the criminal law of attempt, the Tribunal finds assistance in the law's consideration of what does constitute an attempt. To be an attempt, there must be an intention to do the completed act and, with that intention, take a step towards that completed act. An attempt must be a step more that preparatory and must be immediately connected with the doing the completed act.

175 The Tribunal finds that the conversation between the pharmacist and the respondent did not amount to an attempt to obtain the drugs in the sense that it was a step towards doing the completed act. Certainly, in the context of the respondent's admitted abuse of Duromine and his custom of obtaining large quantities of the drug at one time, his conversation with the pharmacist indicates an intention. However, the Tribunal finds that the conversation was less than that required to constitute an attempt, such as presenting the pharmacist with a prescription written for multiple boxes of the drug.

176 The Tribunal does not find this part of the particular made out and is not thus satisfied as to Particular 13.

Prescriptions in the names of other people for the respondent's own use

177 Particular 14 alleges that the practitioner issued and collected prescriptions for "prescribed restricted substances" without the knowledge of the nominated person and in doing so intended the drugs for his own use. The respondent admitted that he wrote and, from time to time, collected prescriptions written for his family members but denied that the drugs were for himself. The drugs to which this particular relates are benzodiazepines and Duromine. The prescriptions were written between May 2003 and September 2005.

178 This particular arises out of the respondent's evidence to the Section 66 Inquiry to that he wrote prescriptions for family members and collected the drugs not for the benefit of the nominated family member.

179 The respondent admitted to the Tribunal that in the period that he was prescribing for himself, he had a drug abuse problem and he prescribed and abused benzodiazepines and Duromine. He said that while he did have a drug abuse problem, he believed it ceased around the time that he stopped prescribing for himself, August 2005. Up until that time he had an active disorder.

180 The respondent's evidence to the Tribunal is different to that he gave to the Section 66 Inquiry.

181 The respondent's evidence was in many respects confused and at times contradictory. There were instances in which his recollection was imperfect, for example he said he had prescribed only occasionally for family members when it was demonstrated to be far more than occasionally by the schedules compiled by the PSB.

182 The respondent said that he was impaired at the time of the Section 66 Inquiry as a means of explaining his admissions to the Inquiry and his later retraction of them.

183 In all of the circumstances, the Tribunal could not be confident that the respondent's evidence to the Tribunal was wholly reliable, not necessarily through a deliberate attempt to mislead. Where the Tribunal does propose to make a finding that rejects the respondent's account of events, it will only do so where there are sufficient facts from which that conclusion may otherwise be drawn to the requisite standard.

184 In relation to Particular 14, given the circumstances that prevailed at the time when the respondent wrote the prescriptions for his family members to which it relates: his admitted abuse of benzodiazepines and phentermine and that this correlates in time with the prescriptions written by him in the names of family members and collected by him, the Tribunal is comfortably satisfied that the drugs were intended for his own use. In coming to that conclusion, the Tribunal acknowledges that Patient C said that while the respondent collected prescriptions for her from time to time, he gave the medication to her. This does not persuade the Tribunal from the finding indicated and does not exclude that the respondent wrote prescriptions in her name of which she was unaware.

185 The Tribunal finds this particular proved.

186 Particular 15 alleges that the practitioner issued prescriptions of Tramadol for Patient A and partially used some of those drugs himself. This too arose from the respondent's evidence to the section 66 Inquiry in which he said that he had collected Patient A's prescription of Tramadol from the chemist and used "80%" of the drug himself.

187 There is no evidence to support this allegation other than the respondent's evidence to the section 66 Inquiry. Given the findings already made about his mental health and his own view that he was impaired at that time, the Tribunal cannot be satisfied that he had, as he said, used the majority of that medication.

188 The Tribunal cannot find this particular proved.

Discussion

Prescribing for relatives

189 The respondent admitted that he had acted as general practitioner for his family members. He had known for a long time that the Board guidelines opposed doing so but said that he did not know why. The respondent said that he now understands why it is not appropriate for a practitioner to treat his family. As to why he continued to treat family members for many years when he knew that it was contrary to the Medical Board guidelines, the respondent said that the patients wished it.

190 The respondent knew that Patient A had two other general practitioners at the time that he was prescribing benzodiazepines for her and he knew that at least one of those practitioners was prescribing benzodiazepines for her. Although he said that he was fully aware of the amount of benzodiazepines the patient was receiving, his evidence in relation to the prescribing records leads the Tribunal to the view that he was really unaware of the level of his prescribing.

191 Dr Jeremy Bunker commented on the respondent's prescribing both for himself and for members of his family.

192 Dr Bunker said in reference to the prescription of benzodiazepines for Patient A and Patient B:

"These are centrally acting agents with significant potential for harm, adverse reactions and dependence. One of the mainstays of safe prescribing of powerful potentially harmful medications is to provide a framework of careful assessment and regular review at which therapeutic effectiveness and monitoring of compliance occurs. If a regular patient "lost prescriptions" for such medications in the pattern which (the respondent) attributed to (Patient A), an immediate consideration would be of whether compliance issues or abuse were occurring. The respondent prescribed outside this framework for a number of individuals."

193 Dr Bunker noted that if the respondent was acting as the medical practitioner for close family members, there were no clinical records to indicate assessment, treatment and review were occurring appropriately in relation to the prescription of large amounts of potent medication.

194 Dr Bunker said that this conduct would attract his strong criticism and that of his colleagues.

Self-prescribing

195 Although the respondent denied that his abuse of benzodiazepines and Duromine was a function of his mental illness, he offered no reason why he self-prescribed drugs of potent action.

196 There was no evidence to suggest that he was significantly overweight. At the time of the self-prescribing, the respondent was bound by a condition that he retain a general practitioner and he said that he had done that. Dr Bunker's view was that:

"... given that this drug (Duromine) can have side effects of anxiety-like symptoms and agitation, as a stimulant, and that is was being self-prescribed in the context of a significant mental health problem, it was highly unlikely to be appropriate. If it was indicated and was to be prescribed, the only appropriate way for it to be prescribed would be by a treating practitioner who was fully aware of all of (the respondent's) other medication conditions and medication and as part of comprehensive management plan."

197 It was not suggested to Dr Bunker that there was a clinical reason for the respondent's self-prescription and the Tribunal could not find that there was. It is reasonable to conclude that the fact of self-prescription was concerned with the respondent's mental illness.

198 The prescribing for family members, especially for patient A is most serious. The respondent kept no note or record of what or when he prescribed or amounts. It appears to the Tribunal that he provided prescriptions on request, the result being that Patient A received frequent prescriptions for benzodiazepines over a long period of time contrary to accepted therapeutic standards. The Tribunal is satisfied that the respondent had no control or plan of management in support of the prescription. It seems from what he said to the Section 66 Inquiry, that the risk that Patient A might become dependent on the drugs had not occurred to him.

199 Equally, the prescription of phentermine for two family members in amounts that he could not remember speaks of a lack of control over the prescribing and a failure to exercise any judgment at all about the indications for the drug and an assessment of its effectiveness.

200 The failure to keep records in this case underscores the failure of the respondent to exercise the skill, judgment and care required of him as a medical practitioner.

201 These are serious matters and the Tribunal must determine how best to give effect to the protective functions of the Act.

202 This Complaint raises sections 36 and 37 of the Medical Practice Act 1992 (the 'Act'). The relevant sections are in the following form:

S 36(1) "For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:..

Conduct significantly below reasonable standard Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Contravention of Act or regulations Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.

Contravention of conditions of registration Any contravention by the practitioner (whether by act or omission) of a condition to which his or her registration is subject.

S 37 "For the purposes of this Act, professional misconduct of a registered medical practitioner means unsatisfactory professional conduct, or more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register.

203 The Tribunal is satisfied that the respondent acted in defiance of the conditions of his registration in prescribing for himself which of itself is a very serious matter. Obviously the conditions were imposed to allow the respondent to continue to practise while maintaining his capacity and protecting the public. The respondent chose to flout that condition.

204 His self-prescribing included potent drugs which he admitted to abusing.

205 The manner of his prescribing for family members demonstrates a complete lack of control and the exercise of judgement expected of a medical practitioner.

206 The Tribunal is satisfied that in the respects that the particulars have been proved, the respondent has been guilty of unsatisfactory professional conduct.

207 But for the respondent's mental illness, the matters in Complaint 1 could well be regarded as sufficiently serious as to amount to professional misconduct. However, the Tribunal finds that the respondent's mental illness has impaired his judgment and has led to the matters complained of about his prescribing. Given the order that the Tribunal will make in relation to Complaint 2, the Tribunal will take no other action in relation to the prescribing matters. The order for de-registration will be sufficient to protect the community. If the respondent's mental health improves in the future, the Tribunal feels that with that will come improved judgement and insight that will dictate that the respondent does not prescribe in this way again.

Orders

1. The respondent's name be removed from the register of Medical Practitioner and he not be permitted to apply for registration for a period of 2 years from the date of the order

2. The respondent pay the complainant's costs

Endnotes

1 Transcript 6.7.09 page 269.40 ff

2 transcript 274.45

3 Schedule 1 or Schedule 8

4 Rajagopalan v Medical Board of South Australia (unreported) Full Court, Supreme Court of SA, 5 May 1998

5 Schedule 8 refers to a prescription for diazepam written by the respondent for himself in November 2005

Annexure referred to in paragraph 1 of the Reasons for Determination and Orders of the Medical Tribunal of New South Wales

HCCC v Dr Ali Hooman Kalarostaghi

40003 of 2008 dated 27th August 2009

IN THE MEDICAL TRIBUNAL

NO. 40003 of 2008

CONSTITUTED UNDER SECTION 146 OF THE MEDICAL PRACTICE ACT 1992

IN THE MATTER OF

DR ALI HOOMAN KALAROSTAGHI,

A Person Registered under the Medical Practice Act 1992

FURTHER AMENDED COMPLAINT

TAKE NOTICE THAT the Medical Tribunal has received a complaint from the Health Care Complaints Commission following consultation with the New South Wales Medical Board in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 (NSW) and section 51(1) of the Medical Practice Act 1992 (NSW) ("the Act")

THAT Dr Ali Hooman Kalarostaghi of 8 Forest Avenue, Wahroonga in the State of New South Wales ("the practitioner") being a medical practitioner registered under the Act:

COMPLAINT ONE

Has been guilty of unsatisfactory professional conduct within the meaning of section 36(1)(a), (b), (c) and (m) of the Act and/or professional misconduct within the meaning of section 37 of the Act 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 [ of ] a provision of the Medical Practice Regulation 1998 (repealed) and the Medical Practice Regulation 2003 (repealed) and/or

iii. Contravened a condition to which his registration is subject; and/or

iv. [Has] Engaged in improper or unethical conduct relating to the practice or purported practice of medicine.

PARTICULARS OF COMPLAINT ONE

Between 1994 and November 2004 the practitioner was a general practitioner practising in various general practices in the State of New South Wales.

On 11 November 2004 the Impaired Registrants Panel determined that the practitioner required monitoring and placed Employment and Health Conditions on his registration.

On 22 November 2006 the New South Wales Medical Board at a section 66 Inquiry suspended the practitioner for the maximum 8-week period.

1. Between 28 December 2004 and 8 August 2005 the practitioner self-prescribed in contravention of Health Condition 1, on 7 occasions as listed in Schedule 1.

2. Between 8 August 2002 and 23 May 2004 the practitioner self-prescribed

(a) 'prescribed restricted substances' within the meaning of clause 3 and Appendix D of the Poisons and Therapeutic Goods Regulation (NSW) 2002 ('P&TGR') (repealed) and the Poisons and Therapeutic Goods Regulation 1994 (repealed) ('P&TGR 1994') as listed in Schedule 2;

(b) prescribed those substances in quantities in excess of recognised therapeutic standards of what is medically appropriate in contravention of clause 33 of the P&TGR and clause 36 of the P&TGR 1994;

(c) prescribed those substances for a period in excess of recognised therapeutic standards of what is medically appropriate in contravention of clause 33 of the PTGR and clause 36 of the P&TGR 1994.

3. On dates unknown in 2001 the practitioner self-prescribed a drug of addiction within the meaning of section 4(1) Poisons & Therapeutic Goods Act (NSW) 1966 ('PTGA'), ('pethidine') when it was not clinically indicated in contravention of clauses 79 and 81 of the P&TGR 1994.

4. On dates unknown in 2001 the practitioner failed to maintain records of prescription of a drug of addiction ('pethidine') in contravention of clause 84 of the P&TGR 1994.

5. Between 28 January 2000 and 30 November 2006 the practitioner

(a) prescribed 'prescribed restricted substances' for a family member, namely Patient A as listed in Schedule 3;

(b) prescribed those substances in quantities in excess of recognised therapeutic standards of what is medically appropriate in contravention of clause 33 of the P&TGR and clause 36 of the P&TGR 1994;

(c) prescribed those substances for a period in excess of recognised therapeutic standards of what is medically appropriate in contravention of clause 33 of the P&TGR and clause 36 of the P&TGR 1994.

6. Between 25 February 2000 and 29 October 2005 the practitioner

(a) prescribed 'prescribed restricted substances' for a family member, namely Patient B as listed in Schedule 4;

(b) prescribed those substances for a period in excess of recognised therapeutic standards of what is medically appropriate in contravention of clause 33 of the P&TGR and clause 36 of the P&TGR 1994.

7. Between 27 July 2001 and 22 March 2005 the practitioner

(a) prescribed 'prescribed restricted substances' for a family member, namely Patient C as listed in Schedule 5;

(b) prescribed those substances for a period in excess of recognised therapeutic standards of what is medically appropriate in contravention of clause 33 of the P&TGR and clause 36 of the P&TGR 1994.

8. Between 14 September 2001 and 25 April 2006 the practitioner prescribed 'prescribed restricted substances' for a family member, namely Patient D as listed in Schedule 6.

[[9. The practitioner failed to maintain records in contravention of clauses 33 and 34 of the P&TGR on the dates listed in Schedules 7 and 8 in respect of prescriptions for:]

[a. Patient A;]

[b. Patient B;]

[c. Patient C;]

[d. Patient D; and]

[e. Self prescribing.]]

10. The practitioner failed to maintain records in contravention of clause 13 of the Medical Practice Regulation 1998 (NSW) (repealed) on the dates listed in Schedule 7 in respect of prescriptions for:

a. Patient A;

b. Patient B;

c. Patient C;

d. Patient D; and

e. Self prescribing.

11. The practitioner failed to maintain records in contravention of clause 5 of the Medical Practice Regulation 2003 (NSW) (repealed) on the dates listed in Schedule 8 in respect of prescriptions for:

a. Patient A;

b. Patient B;

c. Patient C;

d. Patient D; and

e. Self prescribing.

12. The practitioner failed to maintain records in relation to 'prescribed restricted substances' in contravention of clause 37 of the P&TGR and clause 40 of the P&TGR 1994 as listed in Schedules 2, 3, 4, 5 and 6 in respect of prescriptions for:

a. Patient A;

b. Patient B;

c. Patient C;

d. Patient D; and

e. Self prescribing.

13. On 3 July 2006, the practitioner attempted to obtain a prescribed restricted substance for his own personal use from Jacki Cole Pharmacy, in contravention of section 16 PTGA, and when it was not clinically indicated.

14. The practitioner issued and collected prescriptions for family members for 'prescribed restricted substances', without the knowledge of the patient, and intended for his own personal use, as listed in

Schedule 9.

15. The practitioner issued prescriptions for a family member, Patient A and partially used the substance for his own personal use, as listed in Schedule 10.

COMPLAINT TWO

The practitioner suffers from an impairment within the meaning of clause 3 of the Dictionary of the Act, in that he suffers from a mental disorder and by reason of that impairment is not competent to practise medicine:

PARTICULARS OF COMPLAINT TWO

1. The practitioner has an addiction to a deleterious drug and/or poly-substance abuse, and/or psychotic illness with paranoid delusions, which detrimentally affects or is likely to detrimentally affect his physical or mental capacity to practise medicine.

2. The practitioner, by reason of an addiction to a deleterious drug and/or poly-substance abuse, and/or psychotic illness with paranoid delusions, is not competent to practise medicine, in that he does not have sufficient mental capacity and skill to practise medicine and/or does not have sufficient communication skills for the practice of medicine.

DATED this day of 2008

Karen Mobbs

Director of Proceedings

Health Care Complaints Commission