HCCC v Dr Kazmierczak - [2007] NSWMT 14

New South Wales

Medical Tribunal

CITATION: HCCC v Dr Kazmierczak [2007] NSWMT 14

TRIBUNAL: Medical Tribunal

PARTIES: Health Care Complaints Commission
Dr Andrzej Kazmierczak

FILE NUMBER(S): 400013 of 2006

CORAM: Ainslie-Wallace, DCJ - Zetler, Dr I - Spark, Dr R - Kiel, Ms H

CATCHWORDS: Failure to obtain authorisation to prescribe drugs - Prescribing in excess of amount authorised to prescribe - Serious misconduct exacerbated by repondent's persistence in the conduct over significant period

LEGISLATION CITED: Medical Practice Act 1992
Poisons & Therapeutic Goods Act

CASES CITED: Bgiginshaw v Briginshaw (1938) 60 CLR 336;
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630;
Exparte Tziniolis: re Medical Practitioners Act (1966) 67 SR (NSW) 448;
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 340

DATES OF HEARING: 8 May 2007 - 11 May 2007
30 July 2007 -1 August 2007
29 August 2007

DATE OF JUDGMENT: 14 December 2007

LEGAL REPRESENTATIVES: M G Lynch of Counsel
S Connors Solicitor, Health Care Complaints Commission
J M Sandford of Counsel
N Meadows Solicitor, Tress Cox

ORDERS:

JUDGMENT:

THE MEDICAL TRIBUNAL Friday 14th December 2007

OF NEW SOUTH WALES

AT SYDNEY

No. 40013 of 2006

BETWEEN

Health Care Complaints Commission

Complainant

Dr Andrzej Kazmierczak

Respondent

Deputy Chair: Judge A M Ainslie-Wallace

Members: Dr I Zetler

Dr R Spark

Ms H 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 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) has engaged in improper or unethical conduct relating to the practice of medicine.

The complaint relates to the respondent's treatment of 9 patients. Not every particular is alleged in relation to each patient. The particulars relate to the respondent's prescribing practises.

The complaint alleges that the respondent prescribed Schedule 8 and Schedule 4D drugs without exercising responsible medical judgment, in quantities and for periods in excess of the recognised therapeutic standards, in circumstances where the respondent knew or ought to have known that the drugs were being or likely to be abused. In relation to some patients it is alleged that the respondent prescribed for a period in excess of 2 months without obtaining the relevant authority from the NSW Health Department and where the continued prescription had been advised against by a pain clinic.

During the course of the hearing, the respondent made various concessions about the complaint. In the result, the respondent conceded all of the particulars of the complaint other than for two particulars relating to Patient C and one particular in relation to both Patients F and H. He conceded that, with the exception of Patient C, his conduct amounted to unsatisfactory professional conduct.

Background

1 The respondent graduated from the Medical Academy in Gdansk, Poland in 1973. After completing a compulsory post-graduation training year, he worked as an assistant in the Department of Human Anatomy at the Medical Academy in Gdansk between 1974 and 1978. Between 1974 and 1980, the respondent completed 6 years training as a registrar in Obstetrics and Gynaecology. Although he completed the training he did not take the final exams.

2 The respondent migrated to Australia in 1981 and attended Newcastle University where he undertook a bridging course in medicine. In 1984 he completed the AMC examinations and became registered as a general practitioner.

3 The respondent worked as a general practitioner, first as locum tenens and in 1986 joined a general practice in Fairfield. In 1988 he purchased a medical practice in Blackett and worked there as a sole practitioner. In 1999 the respondent commenced in a group practice at Emerton with two other general practitioners. He has continued to work at this practice, "All Hours Emerton Medical Centre" from that time although not with the same practitioners.

4 In 1993 he was admitted as a Fellow of the Royal College of General Practitioners and was accredited as a supervisor for general practitioners in training. He resigned his Fellowship and Accreditation in 1998.

5 The All Hours Emerton Medical Centre is located in a shopping centre. The respondent said that he works long hours, 6 days each week. He sees about 25 to 35 patients each day, conducts home visits and visits local nursing homes. There is a substantial Polish community near his practice and the respondent is one of a few doctors within that area who is Polish speaking.

History of the Complaint

6 In August 2003 the HCCC received a complaint about the respondent's treatment of a patient (Patient A) who had died while under the respondent's care. The complaint alleged that the respondent prescribed drugs to the patient knowing him to be drug dependent, knowing that the patient had overdosed in the past and knowing that the patient wanted assistance to withdraw from drugs. A report from the Coroner which accompanied the complaint indicated that the cause of death was complications following methadone and diazepam toxicity.

7 An investigation followed and, as a result, the respondent's treatment of a number of other patients was investigated. The investigators expressed concerns about the level and nature of the respondent's prescribing for those patients.

8 On 27th January 2004 the respondent was contacted by investigators from the Pharmaceutical Services Branch (the 'PSB') of the NSW Department of Health and told that he was to be interviewed about his prescribing to Patient A and other patients. A list of patients then being investigated was sent to the respondent. The respondent declined to be interviewed but the files of the nominated patients were collected and examined.

9 On 17th March 2004 an Inquiry pursuant to Section 66 of the Medical Practice Act was convened to consider the complaint in relation to Patient A and a complaint made by another medical practitioner in September 2003. That complaint alleged that the respondent supplied private prescriptions for large amounts of benzodiazepines to one of his patients (Patient I) when he knew she was receiving methadone at the same time.

10 At the conclusion of the Inquiry, the respondent was directed to surrender his authority to prescribe Schedule 8 and Schedule 4D drugs and to submit to a clinical audit of his practice. The audit was to cover basic clinical skills, patient management skills, compliance with prescribing regulations, adequacy of medical records, workload and appropriateness of practice facilities.

11 The audit was conducted in May 2004. There were some inadequacies noted in the course of the audit. In the result, nothing turned on those matters.

12 This was not the first time that the respondent's prescription of drugs had come to the notice of the PSB. In 1994 the respondent was interviewed after he had prescribed methadone tablets for a patient contrary to an authority granted to him under section 28 of the Poisons and Therapeutic Goods Act. During the interview the respondent agreed that he had prescribed in excess of the authorised dose and had prescribed the drug in a different form from that authorised. According to the report of the investigator, the respondent was told that the requirements of an authority must be complied with and if he did not comply, action could be taken against him.

13 The investigator noted that the doctor asked: "for clarification when it comes to prescribing for 'addicts' ". It was explained to him that: "if he suspects someone is an addict then he would be advised to check with the Department and/or apply for an authority to prescribe drugs of addiction."

14 During the conversation between the investigator and the respondent, the respondent was asked why he prescribed as frequently as he did for this patient. He told the investigator that the patient would present on many occasions saying that he had lost his tablets or needed extra medication because he was going away. The report said: "I explained to the doctor that he would have to be more astute as these were common ploys of people who abused drugs of addiction. We then discussed the methods used by "addicts".

15 A follow up letter, which reiterated much of the content of the interview, was sent to the respondent on 11th May 1994 and it enclosed a document entitled "Recognising and Handling Addicts". That document referred to the problem of prescribing to drug seeking patients and provided notes for the assistance of the doctor including "typical tactics" used by patients seeking drugs. Included under that heading are the following examples;

"2.1.5 lost prescription or tablets. (To prevent misuse, addicts on management programmes are never given prescriptions for drugs of addiction);

2.2 feigns pain and requests a particular drug (by name, by description or by exclusion of other drugs). The drugs requested are usually Methadone (physeptone), Ritalin, Palfium, Endone, Percodan or pethidine. The patterns of presentation may include -

2.2.1 a convincing description of symptoms;

2.2.2 exhibition of old scars or other signs or injury or physical defect..."

Peer Review

16 Dr Ian Chung was asked by the applicant to review the respondent's notes and records to provide an opinion on his conduct. Dr Norman Walsh provided a report for the same purpose at the request of the respondent's solicitors.

17 In determining the complaints, it is legitimate for the Tribunal to have regard to the view of other practitioners about how the respondent's conduct would be regarded by a responsible body of general practitioners and in so doing, express the recognised standards of conduct within the profession against which the respondent's conduct may be gauged.

18 Dr Chung set out the standards which he regarded as reflecting acceptable standards for a general practitioner and departure from which would be considered unacceptable conduct.

19 In relation to matters of prescription of drugs he said that a general practitioner must adhere to the relevant laws, engage in safe prescribing, avoid creating or perpetuating addiction, protect the patient from deleterious effects from the drugs prescribed, ensure that the doctor has adequate evidence that the drug to be prescribed is necessary, ensure that the patient is not addicted, have regard to the duration of prescribing, refer the patient for specialist advice, encourage alternative, non-addictive options, accept specialist advice.

20 When a general practitioner prescribes benzodiazepines, Dr Chung said that it should be for a short term (not in excess of 2 months), the general practitioner should observe the recommended doses and avoid creating tolerance in the patient which will lead to the need for an increased dose. Dr Walsh did not challenge the accepted standards. His opinion differed from Dr Chung on whether the respondent's management of some of the patients would attract criticism and if so, the level of criticism which would attach to the respondent's conduct.

21 Both doctors reviewed the respondent's treatment of each patient in the cohort and directed specific comments to that treatment.

Patient A.

22 The complaint concerns the respondent's prescribing of diazepam, oxazepam and Tramal between 2nd October 2001 and 21st February 2003. The particulars allege that the respondent prescribed the drugs without exercising responsible medical judgment as to whether it was appropriate to issue the prescriptions, in quantities and for periods in excess of recognised therapeutic standards of what is medically appropriate and when the respondent knew or ought to have known that the drugs were being or were likely to be abused. The respondent admitted each particular of the complaint and admitted that his treatment of this patient amounted to unsatisfactory professional conduct.

23 The respondent prepared a summary about each patient referred to in the complaint.[1] He said that Patient A suffered from continuous spontaneous bilateral shoulder dislocations which caused him severe pain. The patient also suffered from anxiety following an incident during a surgical operation.

24 The respondent knew the patient was drug dependent and said that he tried to monitor his condition and offer him strategies to reduce his dependency which included referrals to specialists, psychiatrists and pain clinics.

25 The respondent said that given the strength of the tablets that the patient required, he only gave him prescriptions for sufficient tablets for a few days or even one day's medication at a time.[2] The respondent said that he was "not aware that (the patient) doctor shopped or attended any other practitioners other than the specialists to whom he was referred by myself." The respondent said that on 16th February 2003 he told the patient that he was not going to prescribe further Alepam because he believed that the patient was abusing it. On 21st February 2003, the respondent said that the patient admitted to him that he was abusing the medication and seeking drugs from other doctors. The respondent said that he told the patient that he would no longer prescribe for him.

26 The respondent also prepared a formal answer to the complaints.[3] In it the respondent outlined his treatment of the patients.

27 This patient first consulted the respondent in 1993 although he became a regular patient from 2000.

28 The respondent said[4] that the patient complained to him of unremitting pain in his left and, later, his right shoulder. He also complained of anxiety depression and insomnia. The respondent prescribed Serepax for the patient's emotional difficulties and Tramal for the shoulder and other pain. From time to time, the respondent prescribed other narcotic drugs.

29 The HCCC compiled a schedule[5] of the prescriptions issued by the respondent to each patient over the period of the complaint. The schedule sets out the average daily amount and frequency of prescribing for each drug. In relation to some patients it was conceded that the average was not based on an unbroken period of prescribing and in relation to others the average may not necessarily reflect the daily average, where, for example a patient ceased taking medication for a period and then resumed. The Tribunal has taken these matters into account when considering this evidence but considers that the schedule has weight as a guide to the respondent's prescribing.

30 Between 19th August 2001 and 7th December 2001, the respondent prescribed, on average, 5 Serepax and 3.8 Tramal per day for this patient at consultations about every 5 days. By 22nd January 2001, the daily rate of consumption had risen to 12.8 Serepax and 10.2 Tramal prescribed at consultations about every 2 days. In April 2002 that rate rose to 17.8 Serepax and 17.5 Tramal prescribed at almost daily consultations. By December 2001 the respondent provided the patient with 12 Alepam and 10 Tramal each day. Between April and July 2002 the patient's average daily consumption reduced to 4.2 Serepax and 3.2 Tramal. During this period the respondent also prescribed diazepam, oxycodone and MS Contin. Between July 2002 and September 2002 the patient's daily consumption rose to 8.1 Serepax and 6.5 Tramal and by 21st February 2003 the patient was taking 11.6 Serepax and 12 Tramal each day.

31 There was no dispute that the respondent believed that the patient was taking excessive doses of the drugs. He maintained that the patient needed the amount of drugs he prescribed to control his pain, anxiety and other psychological conditions. The respondent denied that the patient was abusing or likely to be abusing the drugs prescribed. He told the Section 66 Inquiry that he did not regard the patient as drug seeking but rather saw him as being in pain and needing pain relief.

32 In March 2001, the respondent referred the patient to a Pain Clinic. The patient attended once and then from April to June 2001 failed to keep follow-up appointments. The respondent was notified of this in June 2001. Dr Needham, the pain specialist, wrote to the respondent in March 2001, warned him against continued high dose opiate treatment for the patient and recommended a continuation of up to 8 Tramal tablets a day. The respondent prescribed amounts vastly in excess of that recommended by the pain specialist.

33 In March 2002 the respondent referred the patient to Dr Pusic, a psychiatrist, for admission for detoxification. On 27th March 2002 the respondent was contacted by the Centre of Addiction Medicine. His note of the conversation is "stop Tramal" "dr shoppers programme". A letter in the respondent's file from Dr White of the Centre of Addiction Medicine advised that he had seen the patient on 14th April 2002. He said: "his main problems are benzodiazepine dependency...this is long term and he probably will need to be on a benzo for the rest of his life". Dr White suggested a number of alternatives to the patient's prescriptions of benzodiazepines and Tramal. The respondent said that in response to this advice he offered the patient methadone (which was one alternative suggested by Dr White) but the patient refused it.

34 The respondent said that he tried to reduce the patient's daily dose of benzodiazepines. In April 2002, the respondent substituted Largactil and MS Contin for Serepax and Tramal, although for much of April 2002 he also prescribed Serepax and Tramal as well. For a period of about 1 month in May 2002 the respondent stopped prescribing Tramal for the patient.

35 In May 2002 the patient was admitted to hospital after an overdose of Tramal. The respondent said he knew that the patient was obtaining Tramal from another source because he was not prescribing Tramal at this time.

36 In July 2002 the respondent was notified that the patient had been admitted to intensive care following an overdose of benzodiazepines. The patient was discharged from hospital on 31st July 2002. At the time of the patient's discharge the respondent spoke to the Registrar of the hospital who told him that the overdose occurred because the patient had taken all of his tablets; Tramal, Serepax and Endep at once.

37 On 22nd August 2002 the respondent received the discharge summary from the hospital relating to the patient's admission on 31st July 2002. The discharge summary noted that the patient had been admitted for overdose and benzodiazepine abuse. It noted that he was "doctor shopping" and had signed a Voluntary Agreement which would allow a practitioner access to information about the number of prescribers and amounts and types of drugs prescribed for the patient.

38 The respondent said that at this time he knew that the patient was a serious drug abuser and he suspected that he must be obtaining benzodiazepines from another source. The respondent asked the patient to enter into a Voluntary Agreement[6] with him but the patient refused. Nonetheless the respondent continued to prescribe benzodiazepines for the patient.

39 After the patient's discharge from hospital in July 2002, the respondent added another benzodiazepine to the drugs being prescribed for the patient because he said that the patient needed it to control his anxiety and emotions. The respondent said that at this time he was prescribing at a rate to allow the patient 3 tablets a day.

40 On 5th August 2002 the patient was taken to hospital after being found unconscious with an empty packet of Endep (an antidepressant) beside him. He was discharged on the same day.

41 On 3rd September 2002 the respondent referred the patient to a Pain Clinic but he attended only once and failed to attend follow up appointments.

42 In September 2002 the respondent received a note from a Dr Johnston, a pain specialist, who noted that the patient had been seen and appeared to be "intoxicated" from his medications. She wrote: "his main problems are his benzodiazepine/opioid dependency".

43 The patient was admitted to hospital for detoxification on 4th October 2002 but discharged himself the next day against medical advice. On that same day he returned to see the respondent who prescribed enough medication to last 3 days because the patient said he was going away. The respondent said that the patient had to leave the detoxification centre to finish some paving work otherwise his Builder's Licence would be challenged. The respondent said that he prescribed for the patient to allow him to do this work.

44 The daily amount of drugs consumed by the patient increased after this time.

45 On 15th October 2002 the respondent referred the patient to Dr Nasser, a psychiatrist. In the letter of referral the respondent noted that the patient was receiving 5 x 30mg Alepam and 4 Tramal per day. According to the prescribing average, at around this time, the patient was consuming about 14.1 Serepax and 10.7 Tramal each day.

46 It is clear that from time to time the respondent attempted to have the patient reduce his daily consumption of these drugs. Often the words "decrease dose" and other indications that the respondent attempted to do this appear in the notes. From time to time he required the patient to come each day to his surgery and receive the day's drugs directly from him. He set up a regime for reduction of the drugs. Some times he was able to get the patient to reduce his consumption. The respondent said that he had worked with the patient to reduce the medication and had prescribed a reducing dose between May and June 2002. The Tribunal accepts that there were times when the respondent managed to have the patient reduce his daily consumption of Serepax and Tramal but over time the daily dose increased again. It is also clear that the respondent was unable to resist the patient's demands for more drugs.

47 On 16th February 2003, the respondent prescribed Antenax for the patient and noted: "to decrease slowly". He included the words "next script 22.2.03". The patient returned on 18th February and 21st February 2003. On both occasions he received further prescriptions for Tramal and Antenax.

48 On 27th February 2003 the respondent was notified that the patient was found dead of an overdose. The antecedent cause of death was methadone and diazepam toxicity.

49 The respondent agreed that on two occasions in 2002 the patient's mother had asked him not continue to prescribe so many tablets for the patient. She told the respondent that the patient had abused drugs in the past, had used excessive amounts and was receiving drugs from other doctors. In response to her concerns the respondent said that he reached an agreement with the patient that he would only get drugs from the respondent and the respondent arranged that he would prescribe the drugs and give them to the patient's partner who would then be responsible for doling them out to the patient at an agreed daily rate. This proved ineffective because the patient was aggressive and demanded his partner give him more drugs than the agreed rate.

50 The patient record shows that on a number of occasions the patient was seen by the respondent's colleague in the practice who refused his request for prescriptions of Serepax and Tramal. The respondent said that he saw those refusals noted in the file. He had not discussed the reason for the refusal with his colleague.

51 The respondent said that he increased the patient's daily dose of tablets when the patient complained of increased pain. The complaints of increased pain were not supported by any objective assessment of the patient, although on one occasion the respondent said that he rang the patient's partner to see how he was and concluded from what she said that he was displaying typical pain behaviour.

52 Despite clear indications that the respondent was not adhering to his agreement of only obtaining drugs from him, the respondent did not insist that the patient enter into a Voluntary Agreement with him which would have allowed the respondent to check whether the patient was in fact only receiving drugs from him.

53 That the patient was abusing the prescribed drugs was patently clear from the information from the hospitals, the pain clinics and his own mother. The patient displayed typical behaviours of a drug seeking person, behaviours well known to the respondent from the information give to him by the Pharmaceuticals Services Branch in 1994. The respondent agreed that the patient displayed other behaviour typical of a drug seeking patient, for example, there are frequent notes of the patient returning for another prescription having "lost" the prescription given shortly before and he refused the respondent's offer of other drugs to attempt to address his increasing complaints of pain.

54 Despite largely unsuccessful attempts to have the patient reduce his daily dose and failed attempts at detoxification, the respondent continued to prescribe large and increasing doses of drugs for this patient. The continued prescription was based on the patient's untested complaints of unchecked pain or insomnia or anxiety. The prescribing stopped, according to the respondent, in February 2003 when he discovered that the patient had been doctor shopping and he found an empty pill bottle in the car park.

55 The respondent must have known that the patient was "doctor shopping" well before February 2003. The discharge summary after the patient's hospitalisation from overdose in July 2002 referred to other doctors consulted by the patient and referred to the patient's "drug seeking behaviour".

56 The respondent said that on 21st February 2003 he told the patient that he was going to decrease the amount of Valium and Tramal prescribed and was no longer going to prescribe Serepax in the future. On that day the respondent's notes for this patient show that he prescribed 20 Tramal and 25 Antenex (to replace Serepax). There is no note of any discussion with, or ultimatum given to, the patient that no further prescriptions would be written for him nor did the respondent refer the patient to another practitioner even though he said that it would not be safe for the patient to abruptly stop taking his medication.

57 On 27th February 2003 the respondent was contacted by investigators from the PSB who informed him that his treatment of this patient was under consideration.

58 Dr Chung said that the patient's monthly dose of oxazepam was in the order of 625 tablets or an average daily dose of 10-20 tablets and, at its highest, 15 Tramal per day against recommended daily doses of 4 tablets of oxazepam and 8 Tramal per day. His opinion was that the respondent's prescribing facilitated abuse and risked overdose of both drugs and the respondent's pattern of providing repeat prescriptions on the same or consecutive days was: "highly irregular and unacceptable". He said that the respondent's treatment of this patient invited his severe criticism and would incur the severe criticism of his colleagues.

59 Dr Walsh observed[7] that in the period after 2001 the respondent prescribed a daily dose two to four times the recommended daily dose of benzodiazepines and after a period of two months of reduced prescribing, resumed prescribing at these high rates. Dr Walsh said that high doses of benzodiazepines: "rarely achieves improved control of anxiety".

60 Dr Walsh was strongly critical of the respondent's prescribing for this patient and said that although the respondent sought specialist advice he did not need that advice to know that to continue to prescribe for this patient at high doses carried unacceptable risks.

Patient B.

61 The period covered by the complaint is 2nd October 2001 to 27th October 2003. The particulars of the complaint concern the prescription of codeine phosphate with paracetamol,[8] temazepam, diazepam and nitrazepam without exercising responsible medical judgment as to whether it was appropriate, in quantities and for periods in excess of recognised therapeutic standards, when the respondent knew or ought to have known that the drugs were being or were likely to be abused and when the continued ingestion of drugs was contraindicated because the patient had active liver disease. The respondent admitted all of the particulars of the complaint and admitted that his treatment of this patient amounted to unsatisfactory professional conduct.

62 Between 2nd October and 8th December 2001, the patient's average daily dose of diazepam was 8 tablets, 4.4 tablets of temazepam and 5.3 tablets of paracetamol and codeine phosphate. By 31st July 2002 the daily dose reduced with the patient taking 4.1 tablets of diazepam, 1.2 tablets of temazepam and 1.2 tablets of codeine compound each day. The daily dose of diazepam increased to 8.3 tablets each day in the period between December 2002 and May 2003. From August 2002 the respondent prescribed nitrazepam instead of temazepam. The patient's consumption of codeine compound decreased over that time to May 2003 when she took an average of 1.6 tablets each day. She was prescribed no tablets between May and October 2003.

63 This patient had consulted the respondent for many years. He said that her main problems were anxiety, depression, insomnia, chronic low back pain and migraine. She suffered from liver dysfunction.

64 For many years the patient had been supervised by Dr Benson, a haematologist. In 1998, Dr Benson wrote to the respondent advising him that the patient had a varying liver dysfunction "which... probably reflects her lifestyle and to a certain extent the large amounts of analgesics...". In 2000 he said that her liver function had improved because she had modified her intake of paracetamol.

65 The patient had also been under the treatment of Dr Chaudhary, a psychiatrist for many years. In 1995, he wrote to the respondent and, in respect of her medications, said that the patient: "has been on other medication like Aropax and Murelax but tends to abuse them". He said that he gave her a prescription for Murelax at her request but had told her that she could become dependent. Other letters from Dr Chaudhary advised the respondent that the patient was using Murelax in excessive amounts.

66 Information from the Health Insurance Commission shows that between May and November 2000 the patient had 9 distinct prescribers and consumed a daily dose of 9 tablets of codeine phosphate, 6 of oxazepam, 6 of temazepam and 4 of diazepam. A letter of November 2000 from Dr Johnstone from the Pain Clinic informed the respondent that Dr Johnstone was: "unsure of the actual degree of benzodiazepines and opioid use ... she looked fairly sedated each time she has visited." The letter concluded that the patient appeared to have: "minimal back problems" and that she had told the clinician that she used Panadeine Forte mainly for headaches.

67 At around this time, in November 2000, Dr Noor, to whom the respondent referred the patient advised him that the patient was seeing two general practitioners. Dr Noor warned the respondent that the patient risked benzodiazepine abuse because she was seeing two doctors for substantially the same complaints. The respondent said that he made no attempt to contact the other general practitioner after receiving this letter from Dr Noor.

68 On occasion the respondent referred the patient for specialist assessment at a pain clinic however either she did not attend or initially attended but failed to attend follow up appointments.

69 It is against this background that the quantities of benzodiazepines prescribed for this patient need to be considered. The respondent conceded that, as well as the drugs he prescribed, the patient was also prescribed drugs by his colleagues in the practice. Those prescriptions are not reflected in the average daily dose of drugs consumed by the patient.

70 The respondent said that he tried on a number of occasions to get the patient to reduce her daily consumption of drugs and she would agree to try but would then return and want increased doses. The respondent complied with her requests. He said that he increased the dose of these drugs to control her emotional outbursts and because he said she had personal difficulties from time to time which caused her to require increased doses of drugs.

71 The respondent knew in 2000 from the HIC information that the patient was a doctor shopper, was receiving drugs from other practitioners and receiving prescriptions of temazepam from 5 different doctors.

72 It was suggested to him that, with this knowledge, his prescribing was irresponsible. The respondent said it was a "calculated risk" because it was to the patient's benefit to control her pain against the risk that she was going to other doctors for prescriptions.

73 The respondent continued to prescribe large amounts of benzodiazepines and codeine compound for the patient.

74 When asked to explain his continued prescribing for the patient, the respondent said that she became overwhelmed by her life circumstances and he could not control her intake of benzodiazepines. He said that if he had denied her the drugs, she would have gone somewhere else for them.

75 In the light of his concession that his treatment of this patient amounted to unsatisfactory professional conduct, he was asked how his treatment of her was unsatisfactory. The respondent said the patient did not follow his advice, would not accept referrals and did not accept counselling. When pressed to reflect on his conduct rather than the patient's he said: "somehow it was my conduct as well because I did advise I did counsel her I did do and try to push her and motivate her to do the proper thing". Yet he continued to prescribe for her and he acceded to her demands for more drugs when she said that she was not coping on the doses he had already prescribed.

76 There was no argument that the continued prescription of benzodiazepines for anxiety and insomnia over a long period was contrary to the recognised therapeutic use of these drugs.

77 The Tribunal finds that there was overwhelming evidence in the patient notes that she was likely to be abusing the drugs prescribed by the respondent.

78 Dr Chung said that the respondent's pattern of prescribing for this patient in which "huge" amounts of drugs were prescribed each month and when the same or related drugs were prescribed on the same day or within a few days of last prescription facilitated the possibility of abuse and was in excess of the recognised standard. He said that the PBS records of prescribed drugs reflects months in which the respondent prescribed more than 200 tablets of diazepam. He said that the respondent ought to have been alerted to the probability of abuse and that the patient was an addict.

79 He said that the patient's abnormal liver enzymes should have alerted the respondent to the caution contained in the MIMS entry for this drug which advises practitioners that in such cases it may be advisable to reduce dosages. The respondent ignored these cautions and continued to prescribe for the patient.

80 Dr Walsh was of the view that since the respondent had attempted dose reduction, had referred the patient to a pain clinic and considering the patient's social circumstances, her concurrent medical and psychiatric conditions his prescribing would only receive the mild to moderate criticism of his peers.

Patient C

81 The complaint in relation to this patient relates to a period between 4th October 2002 and 30th October 2003 and alleges that the respondent prescribed codeine compound (Panadeine Forte) without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions; in quantities and for periods in excess of recognised therapeutic standards of what was appropriate in the circumstances; when the respondent knew or ought to have known that the drugs so prescribed were being or were likely to be abused. Although the complaint refers also to the prescription of nitrazepam, the applicant did not pursue this part of the complaint.

82 The respondent disputed that he prescribed for the patient without exercising responsible medical judgment and disputed that the drugs were prescribed in quantities and for periods in excess of recognised therapeutic standards. He conceded that he knew the drugs he prescribed were likely to be abused although denied that he knew that they were being abused. He did not concede that his treatment of the patient amounted to unsatisfactory professional conduct.

83 This woman had been a patient of the respondent's since about 1994. She had been assessed as having borderline intelligence and had been diagnosed with schizophrenia. She presented to the respondent with psychotic symptoms. She had expressed suicidal thoughts and had a history of self-mutilation. She was under the care of the Mental Health Team in her local area. The respondent had referred her to a psychiatrist. The respondent described the patient as being very difficult to manage. She was not compliant in taking medication for her psychiatric condition.[9]

84 In his treatment of patient C, the respondent prescribed benzodiazepines for insomnia and Panadeine Forte for low back pain and injuries to her fingers. The respondent suspected that the patient was deliberately injuring her fingers. He also prescribed Zoloft for depression and chronic pain.

85 From 1996 the respondent had an authority to prescribe up to 6 Panadeine Forte per day. At some later time the authority was changed to prescribe up to 8 Panadeine Forte a day.

86 In 1996 he prescribed Panadeine Forte at 100 tablets per prescription. In September 2000 the rate at which he prescribed Panadeine Forte increased to 200 tablets per prescription and he provided the patient with two repeat prescriptions at the same time. By September 2003 the respondent was prescribing 240 tablets of Panadeine Forte at each visit as well as giving her two repeat prescriptions.

87 In the period covered by the complaint (which was slightly less than 12 months) the respondent prescribed 3,720 Panadeine Forte to this patient.

88 The respondent agreed that he knew from a very early point that the patient was using more Panadeine Forte than he intended. He said that he wrote prescriptions for her on the understanding that the amount prescribed would last a particular period but said that the patient returned for a repeat prescription before that assumed time had elapsed.

89 On 28th June 1996 he prescribed 100 Panadeine Forte. On 6th July the patient returned having used all of the tablets. The respondent said that he had expected the tablets to have lasted longer. In response he increased the daily dose of Panadeine Forte to 6 tablets because the patient told him that the previous dose was not controlling her pain. In November 1996 the respondent wrote a prescription for Panadeine Forte to last the patient 3 days. She returned after 2 days and the respondent wrote a prescription for Panadeine Forte for an amount which he expected to last until 15th December and gave her another prescription "to top her up" should her pain not be controlled by the prescribed daily dose.

90 Between 13th December 1996 and 16th January 1997 the patient was prescribed and consumed 360 tablets of Panadeine Forte. In February 1997, the respondent prescribed an additional 3 tablets should the patient require them, thus increasing her daily dose to 9 tablets a day. Whether the patient consumed all 9 tablets was left to her discretion.

91 The respondent said that increasing the doses of Panadeine Forte was appropriate because the patient's reported pain determined the amount of analgesia that he prescribed. The respondent said that, when he increased the dose of Panadeine Forte to 8 tablets a day, her pain was well controlled.

92 Although the respondent was concerned that the patient required continuous doses of codeine to control her pain, he preferred to prescribe Panadeine Forte rather than apply for an authority to administer a more potent narcotic drug because he would have needed a report from a pain clinic to support the application for an authority. He had discussed with the patient her attending a pain clinic but she did not wish to go. In those circumstances, the respondent felt that it was simpler to continue to prescribe Panadeine Forte. The respondent did not insist on her attending the clinic as a condition of his continued prescription of analgesia for her.

93 The respondent tried to have the patient reduce or stop using Panadeine Forte. In June 1997 he attempted to substitute Endone for Panadeine Forte. That was unsuccessful and by August 1997 the patient was again consuming 8 Panadeine Forte tablets a day.

94 In September 1997 the respondent again attempted to substitute Endone for Panadeine Forte although he continued to prescribe Panadeine Forte while attempting the substitution. The attempt was unsuccessful.

95 In December 2003, the respondent referred the patient to a pain clinic. She refused to attend. When asked why, after 9 years of prescribing codeine compound for the patient he decided to refer her for specialist advice, the respondent said that she had been using the same medication for a long time without improvement and he wanted to explore other options for pain relief.

96 The patient's last consultation with the respondent was in June 2004. His note is that he advised her to cut down her medication and exercise more. He noted that she became angry and complained that his surgery was too far for her to travel to see him every month. He advised her to see a doctor closer to where she was living. In 2002 the patient had moved some distance from the respondent's surgery. The distance had not posed any apparent difficulty for her in attending his surgery in the years between 2002 and June 2004.

97 It was suggested to the respondent that perhaps the patient's anger at being refused her medication indicated that she was in fact drug seeking, he said "It could be that she was drug seeking at that time but most likely she...did have the pain as well."[10]

98 Between 2000 and 2002 the respondent said that he prescribed Panadeine Forte for this patient at a rate of 8 per day. It was put to him that in fact the schedule of average daily consumption of drugs shows that in the period October 2002 to September 2003, the patient's daily consumption of Panadeine Forte was 10.6 tablets per day. He disagreed. Schedule C to the complaint is a compilation from PBS records of dates and amounts of Panadeine Forte prescribed by the respondent for this patient and reflects that the patient returned to the respondent for repeat prescriptions not every three months as the respondent said but in shorter intervals. In the Tribunal's view, Schedule C makes it clear that the patient received 600 Panadeine Forte every 60 days or so, a daily average of about 10 tablets.

99 The respondent denied that his prescription of codeine compound demonstrated a lack of responsible medical judgment and was in quantities and for excess of recommended periods. He accepted that he knew that the drugs prescribed were likely to be abused (not that he knew that they were being abused). The respondent denied that this treatment amounted to unsatisfactory professional conduct.

100 There is no doubt that the patient had organic conditions which gave her a basis for complaints of pain.

101 Over the period of his treatment of her the respondent increased the daily dose of Panadeine Forte. The increased prescription was based on the patient's account of pain and her assertion that the then dose of Panadeine Forte was not managing her pain. The respondent had attempted to substitute another analgesic, Endone for the Panadeine Forte but was unable to achieve the substitution.

102 During the period covered by the complaint the respondent prescribed an average of 10.6 Panadeine Forte each day for this patient. The prescriptions were given infrequently to the patient but in large quantities in each prescription (up to 240 tablets) and a number of repeat prescriptions given at the same time.

103 The respondent said that he did not intend to prescribe more than 8 Panadeine Forte per day, however, he was prepared to write a prescription for the patient when she asked for a repeat even though she had consumed all of the tablets previously prescribed sooner than he expected. That the respondent did not know how many tablets he was prescribing for this patient, of itself, evidences a failure to exercise responsible medical judgment.

104 The respondent conceded that he should have referred the patient to a pain clinic earlier and compelled her attendance and compliance with any advice with a warning that he would no longer prescribe for her. He did not say why he had not done that.

105 The continued prescription of Panadeine Forte for many years with no reported improvement in the patient's condition and the increase in dose with no organic basis to indicate a worsening of the patient's condition must have indicated to the respondent that this drug was not effective for the patient and should have caused him to consider whether she was drug seeking and did not have a genuine need for pain relief.

106 The respondent said that he attempted to have the patient reduce her dose of medication through counselling. Given his description of this patient as being very difficult and his experience that she would not comply with the medication to alleviate her psychotic symptoms, the Tribunal is of the view that he was somewhat optimistic in attempting to get her to reduce her intake through counselling which proved to be wholly ineffective.

107 In his report, Dr Chung observed that the respondent gave this patient who had schizophrenia, depression and anxiety, multiple prescriptions for large amounts of codeine compound at the same consultation over a 12 months period. Dr Chung said that to prescribe codeine compound in such large amounts facilitated abuse and risked overdose. It was in excess of the recommended therapeutic dose. He said that the prescription of such large amounts was: "highly irregular and unacceptable". This conduct attracted his severe criticism.

108 Dr Walsh said that he found no evidence that the respondent allowed the patient's consumption of codeine compound to escalate beyond what was appropriate for her condition and thought that her use of analgesics over time was consistent with stable chronic pain rather than drug abuse or dependence. In coming to that conclusion it appeared that Dr Walsh confined his opinion to the period of prescribing on which the complaint was based.

109 When taken to the history of the respondent's prescription of Panadeine Forte for this patient, he agreed that he would be concerned if the patient's consumption of Panadeine Forte had increased from 2 per day in 1994 to more than 10 a day in 2003 without evidence of any further injury or developments in her condition to warrant such an increase.[11]

110 He said that he would have referred the patient to a pain clinic earlier than the respondent and would have resisted any increase in the dose and moved the patient to a more potent analgesic. He said that to prescribe 200 Panadeine Forte at a time to a person who had expressed suicidal ideation was dangerous. However, he said that since the increase in her daily consumption over the period of the complaint rose only by 2 tablets over what the respondent intended, then he would not consider that a "hanging offence". He took the view that with a patient such as this with a psychiatric condition who was non-compliant and resistant to referrals or to follow specialist advice, there was little the respondent could do.

111 It was argued for the respondent that since the increase in the patient's consumption of Panadeine Forte was only 2 more than he intended to prescribe, his conduct was an error of judgement and did not amount to conduct significantly below that reasonably expected of a practitioner of equivalent training.

112 The Tribunal does not accept Dr Walsh's view that there is little a practitioner can do. In this case the respondent, far from resisting an increase in the daily dose, complied with the patient's requests for more. He said that he considered transferring her to a more potent analgesic but rejected it because it would require a pain clinic report and the patient would not go. In the result he continued to prescribe Panadeine Forte for her over nearly a decade.

113 In considering Dr Walsh's opinion that there was little a practitioner could do to make this patient comply, it is to be borne in mind that in June 2004 the respondent told this patient to exercise more and that he was going to reduce her medication. She became angry and left his practice. The Tribunal is of the view that this course was clearly open to the respondent many years before June 2004.

114 The respondent's admission that he knew that the patient was likely to be abusing the drugs is appropriate. That the patient refused alternate medication, asserted that she needed increasing doses of the medication to control her pain without objective support for a deterioration in her medical condition and refused to attend a pain clinic are all strong indicators that she was indeed abusing the medication he was prescribing for her. Whether he knew she was in fact or simply was likely to be abusing it is of little moment.

115 The Tribunal is not satisfied that the respondent committed errors of judgment in his treatment of this patient. The Tribunal finds that his treatment demonstrates a failure to exercise responsible medical judgment as to whether the continued, increasing prescription of Panadeine Forte was appropriate for this patient. The Tribunal is also satisfied that the respondent prescribed in quantities and for periods of time in excess of the recognised therapeutic standards. The Tribunal finds that the respondent took no control over the patient's treatment.

116 The Tribunal finds that the respondent's conduct, while markedly deficient, falls short amounting to unsatisfactory professional conduct.

Patient D

117 The particulars of the complaint in relation to this patient cover the period between 2nd October 2001 and 5th September 2003 and relate to the administration of pethidine injections to the patient without authority and against advice from specialist doctors at the Westmead Pain Clinic. The particulars were admitted and the respondent admitted the conduct amounted to unsatisfactory professional conduct.

118 The respondent had been treating this patient since 1993. He said that she suffered from severe chronic back pain, anxiety and depression. The respondent said that he treated her with Panadeine Forte and then pethidine injections when the Panadeine Forte was inadequate to address her pain. He said that before he commenced seeing her she had been receiving injections of pethidine five times a week from her previous general practitioner. The respondent said that he tried to reduce the number of pethidine injections administered to her. The respondent referred the patient to other specialists to investigate the source of her ongoing complaints of low back pain.

119 The respondent's assessment was that the patient could not manage her daily tasks without pethidine to control the pain. From about October 2001 to September 2003 he administered pethidine to her about every two or three days. He said that she needed the additional relief of pethidine so that she could do her shopping. In order to receive the pethidine, the patient would walk to his rooms where he would write a prescription for pethidine, she would then have the prescription filled and return to his rooms where he would administer the pethidine to her. It seems from the respondent's evidence that the patient apparently did not need the pethidine in order to manage her household but it was only when she needed to do the shopping that she had pain which required an injection of pethidine. He said that at first he administered pethidine twice a week when she went shopping. Later she asked for more frequent injections and he complied.

120 The schedule shows that between October 2001 and May 2002, the patient received pethidine almost every second day. The frequency of administration decreased between May and November 2002. Between November 2002 and February 2003 the patient received injections about every 3 days. The administration decreased further and the respondent administered pethidine every 9 days by the time he ceased prescribing for her in September 2003.

121 The respondent had referred the patient to the Westmead Pain Clinic from time to time and the specialists there had expressed concern about the patient's ongoing use of pethidine. The respondent was advised to change the patient to another form of analgesia. According to the letters from the Pain Clinic over the years, various forms of narcotic analgesia were tried but the patient reported none addressed her pain or was as effective as pethidine.

122 A letter from the Pain Clinic of September 2001 noted that the patient complained of increasing pain. The letter continued: "although objectively her clinical findings do not appear to have changed over the years".

123 There were several occasions on which the respondent was notified that the patient had failed to attend appointments at the Pain Clinic.

124 In May 2002 Dr Watson, a pain specialist, reported to the respondent that the patient had been seen and assessed at the Pain Clinic. He said that she had again been urged to stop using pethidine and he suggested that the clinic and the respondent investigate other forms of analgesia. In the meantime he indicated that she could continue on her regime of pethidine of 3-4 times each week.

125 At no time during his treatment of the patient with pethidine did the respondent have an authority to administer it. After receiving this advice from Dr Watson, the respondent applied for an authority to administer Pethidine to the patient. That was refused. The letter of refusal advised that regular injections of pethidine were not recommended and expressed "strong reservations about the use of parenteral opioids, particularly pethidine." The respondent denied that by continuing to administer pethidine he was acting contrary to the advice of the authorising body which did not approve of parenteral administration of pethidine because he was not giving her daily injections and did not administer pethidine unless the patient presented to his surgery with severe pain.

126 Although the respondent said that this letter rejecting his application alerted him to the dangers of continued prescription of pethidine he continued to administer Pethidine to this patient.

127 The respondent maintained that this patient was not dependent on pethidine but needed it to control her pain.

128 The respondent said that he stopped administering pethidine to the patient for a period of 3 months from July 2002. At that time he prescribed a number of other narcotic analgesics for her. He recommenced administering pethidine in October 2002 because the patient complained of unremitting pain.

129 In September 2002 the respondent was advised by Dr Watson of the Pain Clinic that he had seen the patient and she had told him that she was not receiving pethidine. However, Dr Watson said that he had information that she was "doctor shopping" and had in fact received 27 prescriptions for pethidine between 1st June and 22nd August 2002.

130 After receiving this information the respondent did not ask the patient to sign a Voluntary Agreement nor did he stop administering pethidine to her. The respondent said that in response to that information he told the patient that he would provide her with pethidine but the injections were only to come from him. The respondent's only evidence that she complied with this agreement was that he said she came regularly to his surgery for injections. He took no other step to verify whether or not she was receiving pethidine only from him. He sought no information from the HIC.

131 From time to time the respondent received specialist advice to stop administering pethidine and attempt to substitute another drug. In September 2001 he was advised by Dr Watson to substitute Endone for pethidine and to not administer pethidine until the patient had returned to the Pain Clinic for review. The respondent said that he followed that advice. In fact, according to his notes, he prescribed Endone for the patient and administered pethidine at the same time. The respondent denied that he ignored Dr Watson's advice and said that he had partially followed the advice because before the trial of Endone the patient had received more frequent injections of pethidine than she did after the introduction of Endone.

132 He was notified in November 2002 that the patient had failed to attend a follow up appointment at the Pain Clinic.

133 The respondent said that the patient's failure to attend the clinic appointments and the claim that she was "doctor shopping" were a: "clear indication that she needs such medication and she is desperate to go around and try to find some other supplier other than me".[12]

134 The Tribunal finds that this demonstrates that the respondent failed to see the clear signs that this patient was likely to be abusing the medication he administered to her.

135 The respondent said in his response[13] that he should have insisted that she attend the Pain Clinic particularly when he was told by Dr Watson that she had been doctor shopping. He advanced no reason why he did not insist.

136 Dr Chung considered that the continuous administration of pethidine for 2 years to be outside recognised standards. Dr Chung noted that Dr Gronow of the Pain clinic wrote to the respondent outlining his concerns about the administration of pethidine to the patient and advised the respondent cease giving it to her. Dr Chung said that this advice was unequivocal. That the respondent continued to prescribe pethidine for the patient in the face of this advice and in large quantities fell significantly below the standard reasonably expected of a practitioner. The respondent administered pethidine without authorisation. His conducted invited Dr Chung's severe criticism.

137 Dr Walsh's opinion was that while Dr Gronow had advised the respondent of the risk of tissue toxicity and muscle necrosis to the patient from continued use of pethidine, the patient had not experienced those side effects. He said that the respondent was in the difficult position of being advised of the "theoretical desirability of substituting oral opioids for injectable pethidine" and the patient insisting that her pain was not relieved by oral opioids. Dr Walsh considered that the medical history of this patient might support her claim that other analgesia was ineffective for her pain. He was mildly critical of the management of the patient by administration of pethidine and believed that it was reasonable to prescribe pethidine so long as the respondent had a relevant authority.

138 Dr Walsh was severely critical of the respondent for not seeking authorisation to administer the pethidine and for ignoring the letter of refusal of authority. He said that the respondent should have obtained a second opinion from another pain clinic to support his continued administration of pethidine. He was not critical of the respondent for choosing not to follow Dr Gronow's advice.

Patient E

139 The particulars of the complaint about this patient relate to the period between 4th October 2001 and 13th October 2003 and concern the prescription of morphine without authority, against the advice of specialist practitioners at the Pain Clinic and when the respondent knew or ought to have known that the drug was or was likely to be abused. The complaint also alleged that the respondent prescribed Endone without authority and prescribed morphine sulphate without an authority. All of these particulars were admitted by the respondent and he admitted that that conduct amounted to unsatisfactory professional conduct.

140 In his summary of the patient's care[14] the respondent noted that when this patient was referred to him in 1997 he was taking Endone for chronic pack pain. The respondent said that in November 1996 he applied for an authority to continue to prescribe Endone for the patient. He said:

"I continued obtaining authorities until we encountered problems with the pain clinic. I tried to arrange for (the patient) to be assessed by a pain clinic so that I could obtain the appropriate assessment to renew the S8 authority. The pain clinic informed me that they could not contact (the patient) or his wife and posted back to me my application letters so I could not obtain further authorities."

141 A somewhat different picture of the respondent's treatment of this patient appears in his response to the complaint[15] before the Tribunal. The respondent said that while he did refer this patient to various pain clinics for assessment, the patient did not attend or if he did attend, did not attend for follow up appointments. There were considerable periods during the respondent's treatment of this patient when he prescribed narcotic analgesia without authorisation. There was no dispute that the respondent prescribed morphine sulphate for this patient without authority between July 1998 and February 1999, between January 2000 and July 2001 and during the period covered by the complaint.

142 The patient was referred to the respondent through the Health Insurance Commission as part of its Doctor Shopping Programme. The respondent knew at the time when this patient was referred to him that he had a history of seeking narcotic analgesia from doctors and had apparently consulted up to 10 doctors at one time for drugs before being referred to the respondent through the programme.

143 After taking over the treatment of the patient, the respondent had him sign a Voluntary Agreement which would have allowed the respondent access to information about the number of individual prescribers and daily amounts of drugs being prescribed for this patient. The respondent sought no information from the HIC notwithstanding he had the patient's consent to obtain it. As part of the referral of the patient's care to him, the respondent was given the notes of the interview conducted between the HIC and the patient in which the patient described himself to be "addicted to Endone and Panadeine Forte".

144 The respondent said that the patient required the medication prescribed to him to control his pain. The respondent prescribed Panadeine Forte for the patient and when the patient said he was not experiencing relief from the pain from Panadeine Forte, the respondent changed the patient first to Endone and then to another morphine compound in July 1999. Up until July 2001, the respondent prescribed Panadeine Forte together with other narcotic analgesia for this patient.

145 From July 2001 the respondent prescribed oxycodone (morphine) for this patient (without an authority) and in November of that year prescribed both oxycodone and MS Contin before changing the patient to another morphine compound because the patient said that the MS Contin was not containing his pain. This change was made solely on the patient's complaints of pain.

146 The respondent attempted to control the patient's intake of drugs from time to time by indicating the date when the next prescription would be due. On many, many occasions the patient returned requesting prescriptions before the due date and the respondent complied by writing a further prescription.

147 The patient complained on a number of occasions that his prescriptions had been lost or stolen. The patient was referred for detoxification but refused to attend. The respondent knew that in 1999 the patient had forged a prescription for Kapanol16 and attempted to have it dispensed.

148 In his response[17] the respondent said:

"I was not aware until the very end that (the patient) was doctor shopping. As soon as I received the letter … which informed me that (the patient) had a section 29 Authority with Dr Khan, I asked (the patient) to follow Dr Khan's arranged program of the treatment and did not prescribe for him any further medication."

149 In June 1998, February and July 1999, September 2000, August, September, October and November 2002, January, March, May, June, August and September 2003, the respondent referred the patient to a Pain Clinic and the patient did not attend. The respondent said that the patient claimed to have attended the Pain Clinic in September 2003 but the respondent never received a report from the clinic about this attendance.

150 In 1997, the respondent received a report from the Pain Clinic in which it was noted that when assessed, the patient was using 4 Endone and 8 Panadeine Forte each day. The letter advised that in January 1997 the patient had been told to use 4 Endone per day and stop Panadeine Forte. The specialist observed that the patient had not followed this advice and advised the respondent not to increase the patient's dose of Endone.

151 In August 2000 the respondent received a letter from Dr Adler at the Westmead Pain Clinic to whom he had referred the patient. Dr Adler noted that when he had seen the patient in 1997 his then intake of Endone was escalating and his use of Panadeine Forte was excessive and "needed to be controlled". Dr Adler said that in 1997 he had diagnosed a "drug dependency state" in this patient. He observed that despite this advice the patient had continued to use those drugs in increasing potencies. Dr Adler advised that the use of narcotics for non-specific back pain is not appropriate and recommended that the patient undergo detoxification. At the top of the letter the respondent had written "for hospitalisation for detoxification". The patient refused to attend the hospital for detoxification. The respondent did not follow the advice from the Pain Clinic and continued to prescribe narcotics for the patient.

152 While the respondent admitted the particulars of the complaint and accepted that his continued prescription was against specialist advice, he said that the patient needed the medication he was prescribing for pain relief. The respondent said that his management of the patient was hampered by the patient's refusal to attend the Pain Clinic.

153 The respondent reluctantly conceded in cross-examination that the patient was likely to be abusing the drugs.

154 The Tribunal is of the view that this should have been abundantly clear to the respondent. The Tribunal is satisfied that there were signs that this patient was likely to be or was abusing the drugs being prescribed to him by the respondent. This is particularly so in light of the information of which the respondent was well aware when the patient was referred to him. To claim, as the respondent did, that "there was a suggestion" that the patient might be abusing drugs flies in the face of the objective information available to the respondent at the time.

155 Dr Chung said that the fact that this patient and his wife, Patient F were referred to the respondent through the Doctor Shopping Programme should, of itself, have alerted the respondent to the probability that the patient was an addict and the respondent, therefore, had special responsibilities towards him. He pointed out[18] that in July 2002 and in July 2000 the respondent had been given guidelines for the management of pain and knew that the Pain Clinic had diagnosed this patient as being drug dependent in 1997.

156 In the face of this knowledge and advice from the Pain Clinic that the use of narcotics in this patient was inappropriate, the continuous prescription of morphine to this patient, on average of 60 capsules per month attracted his severe disapproval. The continued prescription was without any authorisation.

157 Dr Walsh's view was that the patient had a genuine need for high doses of narcotic analgesia and the respondent's treatment of him did not result in an increase in the amount of analgesia consumed by the patient. Dr Walsh was severely critical of the respondent prescribing without authorisation. He did not criticise his clinical management of the patient. Dr Walsh said that the respondent had been given advice over the years from pain clinics which was inconsistent and which may have caused an escalation in the patient's analgesic dependency.

Patient F

158 This patient is the wife of patient E. She too was referred to the respondent by the HIC under the Doctor Shopping Programme. The particulars of the complaint relate to the period 4th October 2001 to 19th September 2003 and concern the respondent's prescription of oxycodone without authority, without specialist advice and when the respondent knew or ought to have known that the drugs were being abused or were likely to be abused. The complaint also alleges that the respondent prescribed Panadeine Forte in quantities and for periods in excess of recognised therapeutic standards of what is medically appropriate, when the respondent knew or ought to have known the drugs were being abused or likely to be abused and prescribing Proladone without an authority. The respondent admitted the particulars except to the extent that the complaint alleges that he did not seek specialist advice. There was no dispute that he did not obtain specialist advice in relation to this patient. He admitted that his conduct amounted to unsatisfactory professional conduct.

159 The respondent said that this patient suffered from migraine and back pain and had been prescribed narcotic analgesia before being referred to his care. When she first attended she was using 8 Panadeine Forte per day.

160 The patient summary document prepared by the respondent notes that he referred her to the pain clinic and: "I obtained an authority to give her oxymorphine (Prolodone) suppositories". This summary is not an entirely accurate picture of his treatment.

161 The respondent's response[19] noted that between May 1998 and November 2003, he made 11 referrals to the Pain Clinic for this patient. She did not attend one appointment. He was notified by the clinic that she had not attended. As a result, he received no specialist advice about the management of this patient's pain.

162 In January 1999 the respondent obtained an authority to prescribe Prolodone for the patient. The authority was valid until July 1999. The respondent said that he applied for a further authority in September 1999. This was refused because he did not have advice from the Pain Clinic. From that time, the respondent had no authority to prescribe narcotic analgesia.

163 Nonetheless, in January 2000 the respondent resumed prescribing oxycodone (Prolodone) and he continued to prescribe it for the patient. Between October 2001 and September 2003 the respondent continued to prescribe Panadeine Forte for this patient as well as oxycodone.

164 In September 1999 Dr Cox from the PSB contacted the respondent and asked him to stop prescribing Proladone for this patient. The respondent continued to prescribe for her.

165 The respondent maintained that the continued prescription was necessary because the patient complained of pain and she told him that other drugs were ineffective for her pain. He said it was responsible management to prescribe to her because her pain related problems were relieved by the medication provided.

166 This patient signed a Voluntary Agreement on 7th July 1997. The respondent sought no information about the patient's average daily dose of medication or the numbers of other practitioners who were prescribing for her. He agreed that he could have obtained this information. He did not say why he did not.

167 The respondent knew when the patient was referred to him that she had a history of doctor shopping. He did not agree that this would have caused him to presume that she likely to be abusing the drugs he prescribed rather than needing them for pain relief. He said that she had doctor shopped because she needed the drugs to obtain relief from the pain. The respondent said that although he suspected that the patient might be abusing drugs, he resolved that suspicion in her favour because he believed she experienced pain.

168 The respondent said that to prescribe without authority was inappropriate but said that there was a clinical reason for prescribing. He said:

"Now it is responsible from my opinion to prescribe such medication for medical, clinical problem. It is illegal inappropriate to continue prescribing such medication as I did so it was not reasonable to continue …"[20]

169 The notes contain letters from the patient indicating that she was not well enough to attend the surgery and asking the respondent to write a prescription for her. In one letter the patient requested prescriptions for Panadeine Forte and Valium because she was under a "lot of stress". In a note written in July 2000, the patient asked for a prescription for Prolodone or MS Contin or Physeptone tablets and noted: "I rang the pain clinic...they said you should have a letter from them within the next 2 to 3 weeks...". Other letters of 20th July 2000 and 23rd February 2001 also refer to the Pain Clinic and suggest that the patient had spoken to the Pain Clinic requesting a report from them. She asked the respondent to provide her with a prescription for Prolodone. Other letters ask the respondent make out the prescription and give it to her husband.

170 The respondent denied that these letters were requests for prescriptions without a consultation. He said that the patient wrote the letters while sitting in the waiting room or when he visited the home. Later in his evidence the respondent said that on receiving the letters, he made home visits and gave the patient the prescription. There is no note of any home visits or any observations that he made during these visits. The respondent said that it was not a home visit per se but he went to her house and gave her the prescription. The terms of the letters do not support his assertion that they were written in the surgery. Whether the respondent provided a prescription without seeing the patient or whether he went to the house to deliver it cannot be determined on the evidence before the Tribunal.

171 Some letters requested the respondent to write a prescription and to give it to the patient's husband to deliver to her. The respondent said that he would not give the prescription to the patient's husband because he had some suspicions that the husband might lose the drugs. The respondent said apropos of the patient's husband (patient E) losing medication:

"He was unable to walk for long time so he was in situations that he was staying for some time in friend's place before getting them and as he was friendly with everyone around, everyone around ask him to go inside so I prefer to deliver this prescription to the (patient) rather than seeing (the husband) who was sort of wandering around, then she wouldn't get medication probably next two, three days".[21]

172 This explanation is difficult to accept especially considering that the respondent was treating the patient's husband who also had been referred to him through the Doctor Shopping Programme. The Tribunal considers it probable that the respondent did not give a prescription to the patient's husband because of concerns that he might take the drugs for himself.

173 The respondent said that he had no reason to think that the patient was lying when she wrote in the letters that she had spoken to the Pain Clinic. Even when he received no reports from the Clinic about the patient's attendance, the respondent said that it was not obvious to him that she lied about going there. He said that he had tried to telephone the Pain Clinic but said that it "wasn't easy to contact those doctors". The respondent said that he continued to wait for a response from the Pain Clinic. According to the respondent's notes, he made 11 separate referrals to the Pain Clinic for this patient. He never received a report from the Clinic indicating that she had attended. In fact he was notified on several occasions that she had not attended.

174 The respondent said that when he still had not heard from the Pain Clinic by 19th December 2003 he decided not to continue to prescribe narcotic analgesia for this patient. There is nothing in the patient's notes of December 2003 which indicates any conversation that the respondent had with the patient about no longer being willing to prescribe Prolodone. Indeed on the 19th December he prescribed Prolodone suppositories for her.

175 The respondent said:

"I realise in hindsight, that my acceptance of her assurances in this respect, was naïve and that I had poor insight into what was clearly Patient F's drug seeking behaviour."[22]

176 Dr Chung said that because this patient was referred by the Doctor Shopping Programme that should have alerted the respondent to the probability that she was an addict and he should have realised that he had special responsibilities towards her.

177 Dr Chung was critical that the only treatment the respondent offered the patient for her migraines was narcotic analgesia, oxycodone suppositories. The respondent did not refer her for specialist advice nor did he attempt to treat her migraine with other non-pharmacological methods. He regarded this continued prescription of large amounts of narcotic analgesia over a considerable period of time to be conduct which fell significantly below the reasonable standard of practitioners of equivalent training.

178 Dr Walsh said that the respondent counselled this patient to reduce her intake and drew up plans to do that. His attempts to get specialist advice and get the patient to use another form of analgesia were unsuccessful. He was not critical of the respondent's prescribing because he assumed that the patient was an intractable analgesic abuser and thought that it was likely that the respondent did all he could to offer alternatives. He was not critical of the respondent's prescribing but was severely critical of the respondent's continued prescription of analgesia without authority and when he had been contacted directly by Dr Cox and asked to stop prescribing.

179 It was submitted that the respondent's failure to obtain authorisation to prescribe for this patient must attract severe criticism. However it was also said that he was "naïve" in his continued acceptance of the patient's assurances that she had attended the pain clinic and for allowing her to have the benefit of the doubt for "too long".

180 The Tribunal is not persuaded the respondent's acceptance that the patient had attended the Clinic was naïve. The Tribunal is of the view that in all the circumstances of his treatment of this patient, the respondent could have had no realistic expectation that the patient would attend. It is impossible to accept that he could have genuinely believed that she had attended the Pain Clinic but that the report had been delayed for 5 years. The Tribunal is of the view that the respondent simply turned a blind eye to the obvious fact that this patient did not attend the Clinic.

226 In 2004 the respondent's treatment of this patient was investigated by the HCCC as a result of a complaint from another practitioner. It was alleged that the respondent had issued private prescriptions for benzodiazepines to the patient allowing her access to large quantities of tablets at a time which indicated that she was or was likely to abuse the drug. It was further alleged that the respondent gave these prescription when he knew she was on the methadone programme at the same time.

227 The respondent denied that the amounts prescribed to this patient demonstrated abuse. He said she needed the amounts of drugs he prescribed and said that the patient had told him that there were times when she under stress when she needed to take up to 7 Normison tablets for insomnia.

228 The respondent said that he provided her with prescriptions for 100 tablets at a time because the patient was living in the country and he intended that the tablets would last until her next visit to his surgery.

229 The respondent conceded that his treatment of this patient amounted to unsatisfactory professional conduct because he continued to prescribe for her for too long without considering other treatment options. He said that since she frequently changed her place of residence, she made it impossible for him to try other treatment options.[29]

230 From the first consultations with this patient the respondent prescribed Normison to treat her insomnia. He also prescribed Valium to "settle down her emotional reaction" to her life situation.

231 The respondent agreed that when using Normison to treat insomnia, the recommended duration of treatment is 2 months. He conceded that it is a drug to which patients can easily develop a dependency. The respondent continued to prescribe this medication for the patient over a considerable period of time.

232 The respondent attempted to have the patient change to Serepax from Normison but after a 2-month trial he resumed prescribing Normison.

233 The respondent was not able to point to any support in the medical literature for the regime of offering the patient Normison at night for anxiety and insomnia and Serepax during the day for anxiety.

234 Although the respondent disagreed that the maximum recommended dose of benzodiazepines is 30mg per day and suggested that, depending on the body weight of the patient, a practitioner could prescribe up to 45mg per day, he agreed that he prescribed quantities greatly in excess of that amount. He said that the daily dose prescribed by him to this patient depended on his clinical assessment and, as such, considered that there was no maximum daily dose.[30] The basis of the respondent's assessment of an appropriate daily dose of benzodiazepines for this patient was entirely on her description of symptoms.

235 The respondent knew from 1997 that the patient had a history of substance abuse and dependency on sedatives. She had a history of intravenous drug use.

236 The respondent was asked:

When did you come to the realisation that your treatment of this patient was inappropriate?
That happened when I was informed that she's on methadone programme and that actually she was getting medication of sedatives at the time when she was on methadone programme.

237 It was suggested that this patient used to ring the respondent from the country and ask him to write a prescription for benzodiazepines to be posted to her. The respondent agreed that she contacted him by telephone but denied that the purpose of the call was only to ask for the drugs. He said that during the calls she told him her problems and he counselled her over the telephone. There is nothing in the patient's notes to reflect any counselling given to her in these conversations. The respondent charged the patient for these telephone consultations.

238 The respondent denied that he issued prescriptions to the patient on basis of her request over the phone. He said that the telephone calls she made to him could have been her ringing to check whether he was at the surgery before coming to see him later that day.[31] The respondent maintained that when he wrote prescriptions, the patient came to the surgery to collect the prescription. The respondent agreed that at this time the patient was living near Mittagong.

239 The Tribunal found this explanation difficult to accept and considers it implausible that the patient, living in Mittagong, would ring to see whether the respondent was at the surgery and be charged by the respondent for that telephone call as if it was a consultation.

240 The respondent issued private prescriptions for the patient because he could prescribe larger amounts of benzodiazepines for the patient than were otherwise allowed under the PBS. In June and July 2003, the respondent prescribed 100 tablets of Normison and Valium for the patient on each prescription.

241 Although the respondent knew that the patient had a background of doctor shopping, he made no enquiry of the Health Insurance Commission about the number of prescribers for her nor did he ask her to sign a Voluntary Agreement to participate in the Doctor Shopping scheme.

242 The respondent did not think that the quantities of benzodiazepines he was prescribing this patient were indicative of abuse although he agreed the quantity he prescribed indicated that she was dependent on them to control her long-term medical conditions.

243 In July 1992, the respondent offered the patient a referral to a psychiatrist but she refused it and "requested only Serepax with Normison".[32] He refused to prescribe for her. On another occasion in August 1992, the respondent refused to prescribe for the patient because he felt that the best treatment would be for her to get advice and treatment from a psychiatrist. There was no explanation why the respondent then continued to prescribe these drugs to this patient in considerable quantities over the following years.

244 The respondent said that in 1997 the patient was consuming 10 Normison tablets a day and he counselled her on the toxic effect of the dose and sought to reduce the dose. He agreed that he continued to prescribe 10 tablets a day. He was asked whether the very quantity of drugs being consumed by the patient reflected abuse. He said that she needed that many tablets to control her anxiety. He said:

245 The respondent eventually conceded that if the patient did not have the emotional problems and pain which she claimed then it was possible that she might have been abusing the drug.

246 The respondent agreed that in a patient such as this with Hepatitis C, to prescribe large quantities of benzodiazepines exposed her to liver damage. He knew that benzodiazepines could exacerbate depression and this patient suffered from depression and he also knew that care should be exercised when administering Serepax to patients who are known to be addiction prone. Although from time to time he attempted to persuade the patient to reduce her intake of benzodiazepines. She refused. He continued to prescribe them for her.

247 Dr Chung noted that the respondent issued prescriptions for benzodiazepines on 16 occasions between January and September 2003. The respondent prescribed large quantities, up to 100 each of diazepam and temazepam. On two occasions in that period he prescribed three different benzodiazepines on the same date, double the quantity allowed under the PBS and the duration of prescribing was in excess of the recommended standards. He said that the pattern and amounts prescribed facilitated abuse and possibility of overdose.

Peer Reviewers

248 Dr Chung's report and opinion was based on the records provided to him by the solicitors for applicant. During the course of his evidence it became apparent that he had not been provided with all of the respondent's notes for each patient but had been given the respondent's records for the prescribing period referable to the complaint. The records which he had been given did not include the respondent's correspondence with specialists. In his reports Dr Chung observed that the respondent's notes were inadequate and on a number of occasions noted that there was no independent corroboration of the respondent's assertions that he referred a particular patient for specialist advice.

249 Dr Chung was criticised for not knowing that he did not have all of the notes and for not asking for further information. It was submitted that Dr Chung had "a duty" to ask the applicant for further material if he thought that what he had been given was incomplete. When cross-examined, Dr Chung said that he did not know he was able to ask for more material from those who had asked him for an opinion. It is not altogether clear that Dr Chung believed the material that was given to be incomplete and, in any event, the Tribunal rejects the submission that he had a duty to ask. That he did not does not warrant the strength of the criticism made of him.

250 Dr Chung's criticism of the respondent was in general severe particularly in relation to his failure to seek authorisation to prescribe narcotics or in continuing to prescribe after authorisation had expired or been refused.

251 It was suggested to Dr Chung that he needed to understand the complete history of a patient's problems and treatment by the respondent to give a context to the assessment of the particulars of the complaint. Dr Chung said [34] that the determination of whether a practitioner has acted in accordance with the recognised prescribing standards did not require a consideration of particular conditions or treatment history.

252 Dr Chung acknowledged that this cohort of patients may have presented significant management problems for the respondent, in refusing to comply with reduction regimes, refusing to attend for specialist opinion or for pain clinic management. Dr Chung said that these difficulties make it imperative that the practitioner rely on skill to determine the appropriate treatment underpinned by a strong adherence to ethical practice, in particular, compliance with the law and a conscious understanding that a practitioner must do no harm and not create or perpetuate addiction.

253 It was suggested that where a practitioner could not eliminate a patient's reliance on drugs then it was responsible management to introduce a programme to maintain the drug intake without escalation. Dr Chung did not agree. He said that if a practitioner does not eliminate drug dependence through a reduction regime but maintains an addiction, that may lead to the patient developing a tolerance for the drug with the result that the only response left to the practitioner is to increase the dose of drug prescribed to contain the patient's condition.

254 Dr Chung rejected the suggestion that the course adopted by the respondent of counselling patients and trying to get them to reduce their daily intake of drugs would cause him to moderate his criticisms. He said that simply counselling patients to reduce their intake and the introduction of reduction regimes was insufficient unless there were clear consequences for non-compliance with the agreed regime.

255 Dr Chung said that the appropriate management of patients whose consumption of drugs is of concern to the practitioner is to reach an agreement with the patient about an appropriate intake of the drugs, to counsel them on the dangers of continued and increased consumption of those drugs and put in place a gentle reduction regime. The critical part of this process was that the practitioner maintain the agreement and not abandon the regime or be persuaded by the patient's demands to increase the dose prescribed. In the face of persistent refusal by the patient to adhere to the agreement, Dr Chung believed that the practitioner must refuse to continue to prescribe for the patient other than in accordance with the agreement or refuse to treat the patient.

256 Dr Walsh said that the respondent's conduct attracted his moderate to less than severe criticism. He was most critical of the respondent for failing to obtain authorisation to prescribe in circumstances where the respondent knew that the drugs were or were likely to be abused. He was not as critical of the respondent continuing to prescribe against the advice of pain specialists where the specialist, while advising against continued prescription of particular drugs, did not offer an alternative. Dr Walsh considered that the respondent may have been under pressure from these patients to continue to prescribe for them, especially when the patient was aggressive and demanding.

257 He said that with a patient who had persistently refused referral for specialist advice, he would resist increasing the patient's dose and said:[35]

"If a patient presented with a plausible reason for an increase in their back pain and appeared to be in more pain…it would be difficult to refuse some increase"…

258 He added that when a patient complained of chronic pain, the assessment of whether that pain had in fact increased depended on an acceptance of the patient's honesty coupled with the presence of pain behaviour.

259 Dr Walsh too said that in some cases of persistent failure to comply with reduction regimes and increased demands for drugs should cause a practitioner to stop prescribing for the patient.

260 Dr Walsh was unfamiliar with the Doctor Shopping programme and the information available to a practitioner from the Health Insurance Commission about a patient's intake of drugs or whether a patient is a participant in the methadone programme. His experience with drug seeking patients was limited to the very few who may have come to his practice. At least part of his evidence was based on a misunderstanding of the relevant legislative requirements for obtaining authorisation to prescribe narcotics.

261 The applicant submitted that Dr Walsh's evidence portrayed him as an advocate for the respondent. The Tribunal does not find that Dr Walsh was advocating for the respondent. However, in some instances, Dr Walsh took the most favourable view of the respondent's actions and moderated his criticism when he felt that the patient would have presented treatment difficulties for any general practitioner. On other occasions when Dr Walsh moderated his views because he thought that the respondent may have been intimidated by the patient or coerced by a patient's persistent demands. For these reasons, where there is a difference between peer reviews the Tribunal prefers the opinion of Dr Chung.

262 The Tribunal is of the view that the standards established for proper prescribing of drugs like benzodiazepines and narcotic analgesia are clear and unambiguous. It is accepted that occasionally a practitioner may exceed those standards for a short period or for a particular reason. The Tribunal does not accept Dr Walsh's view that where a patient is intimidating or coercive that is justification for abandoning adherence to the standards.

Discussion

263 There was no dispute that long-term prescription of benzodiazepines may lead to dependence and practitioners are told to exercise particular caution when prescribing benzodiazepines to patients known to be addiction prone.[36] Practitioners are also advised to limit repeat prescriptions without adequate medical supervision.

264 There was also no doubt that literature available to the respondent at the material times referred to the rational use of benzodiazepines and the use of opioids in the treatment of chronic or recurrent back pain.[37] That literature advised practitioners to refer a patient for specialist advice within 3 months of treatment and advised that this referral should "ideally" precede the prescription of opioids.

265 Further information available to the respondent (and contained within his patient files) gave telephone numbers for Drug and Alcohol Specialists for assistance with suspected drug seeking patients and also provided telephone numbers to enable a practitioner to enquire of the HIC about whether a patient is known to be drug seeking.

266 There was no suggestion that the respondent did not know the recommended prescribing standards, the warnings and cautions associated with prolonged prescription of benzodiazepines or their various contraindications. He knew that he was able to have a patient consent to release prescribing information to him, knew that where such a consent had been given he could seek information from the HIC which would show whether the patient was receiving medication from other doctors and he knew the law relating to the authorisation of prescription of narcotics.

267 From at least 1994 the respondent knew of the dangers associated with prescribing for drug seeking patients, their common ploys in obtaining drugs from doctors and the harm both to the individual and the community where doctors facilitate the dissemination of prescription drugs into the drug seeking community.

268 The Tribunal recognises that some of the patients whose treatment comprise the complaint presented the respondent with complex, difficult and longstanding medical and psychiatric problems. There is no doubt that they were challenging patients. Nevertheless, the Tribunal accepts Dr Chung's assessment that it is patients of this type which challenge the practitioner to use his medical skills against a firm understanding of responsible prescribing. The Tribunal is of the view that in many respects the respondent fell short of fulfilling that role.

269 The Tribunal does not regard it as being "naïve" of the respondent to have continued to prescribe oxycodone for Patient F for years without an authority and to accept her fanciful assertions that she had attended the pain clinic but they had not got around to sending him a confirmatory letter. Nor does the Tribunal accept that the respondent was merely giving the patient "the benefit of the doubt" that she had attended. All of the objective evidence, including her initial referral to him from the Doctor Shoppers Team must have alerted the respondent to the likelihood that she was addicted to drugs and that she, at the very least, was likely to abuse the drugs he prescribed for her. The Tribunal cannot understand what motivated the respondent to turn a blind eye to those objective facts but does not regard it as either naïve or giving the patient the benefit of the doubt.

270 The failure of the respondent to obtain authorisation to prescribe or to ignore the authorised limit of drugs for patients amounts to a flagrant disregard for the law as it applied to his professional obligations. Although he held an authority to prescribe morphine which was expressed to be "reducing" for the patient, he prescribed in excess of that authority. That it was expressed in that way, must have informed the respondent that the authorising body had determined that this patient should not continue to receive that level of morphine. The respondent ignored that. He continued to prescribe in excess of the authority, knowing that the pain clinic was of the view that 300mg per day, which is what the patient wanted, was far in excess of that considered in the experts view to be appropriate. Despite having the clearest indication that his level of prescribing was inappropriate, the respondent persisted in prescribing for this patient.

271 The Tribunal regards this as an extremely serious breach of proper professional standards. The respondent was well aware of the necessity for authorisation to administer narcotic analgesia. In some cases he had sought and obtained authorities (in respect of patient H, he exceeded the authorised daily dose) in relation to other patients he sought no authority. The respondent did not explain why he had not applied for authorities for the other patients to whom he prescribed narcotic analgesia or why he ignored the rejection of the request for authority in relation to patients. That the respondent ignored the legal requirements of his right to practise is an extremely serious breach of his professional obligations.

272 The respondent's attempts to have patients reduce their intake if drugs were rendered futile by his willingness to continue to prescribe in ever increasing amounts for them based on the patients' complaints of pain.

273 The respondent had been told that at least two of the patients referred to in the complaint were abusing the drugs prescribed. A clear example was patient B whose treating psychiatrist told the respondent that she tended to abuse benzodiazepines. When the respondent could not reduce her intake, he continued to prescribe.

274 In respect of a number of these patients the respondent was advised in the clearest terms by specialists, whose advice he had sought, to stop administering or prescribing the medications. He ignored that advice. He refused to stop administering pethidine for patient C even when he knew that the specialist had wanted him to stop pending a review at the Pain Clinic. When Dr Cox from the Pharmaceutical Services Branch rang him and directly asked him to stop prescribing Prolodone for Patient F, the respondent ignored that request.

275 For Patient G, a young woman with a significant psychiatric disorder, the respondent prescribed large amounts of benzodiazepines for periods well in excess of the recommended period. The signs that she was abusing the drugs prescribed were in his notes, claims that her medication was lost or stolen or that she had left her prescription somewhere and required a replacement. Over the time that the respondent treated this patient, he prescribed benzodiazepines in increasing quantities. There is no dispute that literature available to the respondent cautioned practitioners of the dangers of prescribing benzodiazepines to patients suffering from depression because they may increase the depression or uncover suicidal tendencies. It was not suggested that the respondent did not know the caution. He noted suicidal tendencies in her patient notes. Extraordinarily, the respondent did not treat her psychiatric condition at all.

276 Patient H had been narcotic dependent for many years, in the period covered by the complaint, the respondent increased the doses of morphine prescribed to her from 4.3 mg per day to 6.8mg. At the same time he prescribed an increased daily dose of codeine compound.

277 The respondent knew of the toxic and dangerous side effects which arise from long-term prescription of benzodiazepines. His note indicated that he advised Patient I of them. His note continues: "despite knowing this she decided to continue medication". Throughout the notes and in his evidence was a distinct flavour that the decision to prescribe was in the hands of the patients. Had the respondent been so concerned about the possible deleterious side effects of his prescribing that he counselled the patient, it defies rationality that he would then be content to leave the decision of whether to accept those consequences to the patient. On many occasions the respondent seemed to be to lay blame for his management of the patient on the patient's intransigence or non-compliance.

278 Although the Tribunal accepts that some, perhaps all, of the patients referred to in the complaint were difficult, it does not accept that the only reasonable means of treating them was to prescribe increasing amounts of benzodiazepines or narcotic analgesia.

279 There can be no doubt that, difficult as they may have been, the ultimate responsibility for prescribing to these patients in excess of proper standards rested with the respondent.

280 The Tribunal finds that the respondent well knew the effect of his prescribing, that it was in excess of that recommended and yet continued to prescribe.

Conclusion

281 This matter concerns sections 36 and 37 of the Medical Practice Act 1992 (the Act).

282 Those sections are in the following form:

283 Section 64 of the Act provides for a range of orders which may be made by the Tribunal on making a finding of either unsatisfactory professional conduct or professional misconduct.

284 The concessions of the respondent that his conduct amounted to unsatisfactory professional conduct is well made.

285 While not uniform in their views, both peer reviewers were severely critical of the respondent's conduct in failing to obtain authorisation or prescribing in excess of it. Although Dr Walsh tempered his criticism of the respondent's conduct because he considered the patients to be difficult and demanding, the Tribunal finds that proper standards of practice require a practitioner to act in accordance with the standard. The Tribunal finds that the respondent's conduct falls significantly short of that reasonably expected of a practitioner of equivalent training.

286 The Tribunal is satisfied that the conduct complained of amounted to a failure by the respondent to exercise the skill, judgment and care expected of a medical practitioner. It is serious misconduct exacerbated by the respondent's persistence in it over significant period.

287 Although the Tribunal is not satisfied that the complaint in relation to patient C is made out, in considering the rest of the complaint, the Tribunal is satisfied to the requisite standard [38] that the respondent is guilty of professional misconduct.

288 The jurisdiction of the Tribunal is a protective not punitive one.[39] 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. The object of protecting the public includes deterring the practitioner from repeating his misconduct and deterring others who might be tempted to behave in a similar way. The role of the Tribunal is also to ensure that public and professional colleagues can place their confidence in the practitioner:

289 To give effect to the protective jurisdiction of the Tribunal, it may make orders which operate in two ways; by preventing the practitioner from practising or by deterring him from repetition of the conduct.[41]

290 Time has passed since the respondent behaved in the way complained of in the complaint. Lapse of time can be relevant to the orders made by a Tribunal. For example, the time which has passed may persuade the Tribunal that the respondent has become a "changed person" since the conduct complained of. However, as Walsh JA said in Ex Part Tziniolis: Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461:

"Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man."

291 Lapse of time then may be relevant too in determining whether the conduct complained of was an isolated or passing departure from proper professional standards. [42]

292 The respondent has not had the right to prescribe Schedule 4D or Schedule 8 drugs since the conclusion of the Section 66 Inquiry. He said that he does not wish those rights returned and said that he wanted a less complicated professional life. He manages his patients who need drugs by referring them to his colleague.

293 The Tribunal is not persuaded that the respondent was entirely frank in his evidence. In relation to two patients he said that he decided not to continue to prescribe for them yet there is no note of any conversation to that effect and in the same consultation the respondent prescribed as usual for the patient. In both of these instances, the respondent's asserted decision occurred at the time when the PSB indicated that he was to be investigated. In respect of one patient, the respondent ultimately conceded that the impending investigation was a factor in deciding to stop prescribing.

294 In coming to the finding that the respondent was not entirely frank the Tribunal has taken into account that while the respondent is proficient in English and gave his evidence in English, a person whose first language is not English may be disadvantaged in nuance especially in cross examination.

295 It was submitted for him that he has developed insight into his conduct which would persuade the Tribunal that he will not transgress again.

296 The Tribunal has considered that the respondent was not entirely candid into account in assessing whether the respondent truly does accept that his conduct was not proper and whether he has developed any insight. The Tribunal is of the view that any insight he does have is incomplete. His concessions of unsatisfactory professional conduct came very late in the proceedings and in some instances were grudgingly made. On two occasions when he was asked to say how his treatment fell short of that expected, he blamed the patient. For example, he said that Patient I made it impossible for him to manage her other than by prescribing large quantities of benzodiazepines because she was living a distance from his surgery. The Tribunal found that explanation unconvincing and demonstrating little insight.

297 Overall, the flavour of the respondent's evidence was that he was the slave to the patients' requests for drugs, he could counsel and advise them to reduce but in the end he submitted to their demands. The Tribunal finds this demonstrates both a lack of insight but also a failure to exercise his responsibilities as a medical practitioner.

298 The respondent is held in high regard by his colleague, Dr Latoszynska. She said that he has spoken to her about the complaint and said that he is humiliated and admits he was wrong. She is confident that he is committed to not repeating his conduct and since 2004 she has adopted a strict protocol in the surgery of not prescribing Schedule 4D and Schedule 8 drugs to new patients. Another colleague, Dr Iwona Mrowka said that she had discussed the complaints with the respondent and he had told her that he regrets his conduct and admitted to her that he should have been more careful, vigilant and forceful in managing his patients.

299 Both doctors said that they believe that the respondent provides careful and compassionate care for his patients.

300 The conduct of the respondent was not isolated nor a passing departure from proper standards. Whether the passage of time has caused the respondent to review his conduct is doubtful.

301 The Tribunal is satisfied that the only order which could give effect to its protective functions and assure the public and the medical profession that this conduct is not taken lightly is to order that the respondent's name be removed from the register of medical practitioners.

302 The Tribunal will order that the respondent not apply to be re-registered for a period of 1year.

Orders:

1. The respondent's name be removed from the Register of Medical Practitioners

2. The respondent not be at liberty to apply for his name to be restored to the Register of Medical Practitioners for one year from the date of these orders.

3. The respondent pay the applicant's costs

Endnotes

1 Exhibit A tab 6 J

2 Paragraph 9.3

3 Exhibit 1

4 Exhibit 1 paragraph 13 ff

5 MFI 3

6 To authorise the release of prescribing information held by the Health Insurance Commission

7 Report, Ex 1 page 13

8 Codeine compound or Panadeine Forte

9 Response of Respondent Exhibit 1 paragraph 63

10 Transcript page 386 line 23

11 transcript page 411 line 12

12 transcript page 113

13 Exhibit 1 paragraph 82

14 Exhibit A tab 6 f

15 Exhibit 1

16 Morphine sulphate

17 Exhibit 1

18 Report 3rd August 2006, Exhibit A tab 17

19 Exhibit 1

20 transcript page 145 line 5

21 transcript page 160 line 23

22 Response Exhibit 1 paragraph 105

23 Exhibit 1

24 transcript page 440 line 9

25 transcript page 440 line 20

26 Analysis of Schedule H to the complaint, MFI 3

27 report 5th March 2005, Exhibit A tab 17

28 Report, Ex 2(i) 8th November 2006

29 transcript page 180 line 8

30 transcript page 186 line 8

31 transcript page 204 line 30

32 transcript page 212 line 41

33 transcript page 211 line 10

34 transcript page 68

35 transcript page 412

36 Ex M - Prescribing Literature

37 NSW Health - Managing Acute Low Back Pain

38 the Tribunal must be comfortably satisfied on the balance of probabilities and having regard to the serious nature of the charge and the consequences that follow, "the satisfaction cannot be produced by inexact proofs, indefinite testimony or indirect references." Briginshaw v Briginshaw (1938) 60 CLR 336.

39 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637D and F

40 Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441B, 471B. Also Craig v Medical Board of South Australia [2001] SASC 169 at [45]-[47]

41 NSW Bar Association v Meakes [2006] NSWCA 340 at [114] per Basten JA

42 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637

CITATION:	HCCC v Dr Kazmierczak [2007] NSWMT 14
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission Dr Andrzej Kazmierczak
FILE NUMBER(S):	400013 of 2006
CORAM:	Ainslie-Wallace, DCJ - Zetler, Dr I - Spark, Dr R - Kiel, Ms H
CATCHWORDS:	Failure to obtain authorisation to prescribe drugs - Prescribing in excess of amount authorised to prescribe - Serious misconduct exacerbated by repondent's persistence in the conduct over significant period
LEGISLATION CITED:	Medical Practice Act 1992 Poisons & Therapeutic Goods Act
CASES CITED:	Bgiginshaw v Briginshaw (1938) 60 CLR 336; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Exparte Tziniolis: re Medical Practitioners Act (1966) 67 SR (NSW) 448; 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 340
DATES OF HEARING:	8 May 2007 - 11 May 2007 30 July 2007 -1 August 2007 29 August 2007
DATE OF JUDGMENT:	14 December 2007
LEGAL REPRESENTATIVES:	M G Lynch of Counsel S Connors Solicitor, Health Care Complaints Commission J M Sandford of Counsel N Meadows Solicitor, Tress Cox
ORDERS: