HCCC v Kalokerinos
[2007] NSWMT 17
•26 April 2007
New South Wales
Medical Tribunal
CITATION: HCCC v Kalokerinos [2007] NSWMT 17 revised - 14/08/2008 TRIBUNAL: Medical Tribunal PARTIES: Health Care Complaints Commission
Dr Nicholas KalokerinosFILE NUMBER(S): 40037 of 2005 CORAM: Ainslie-Wallace, DCJ - Wroth, Dr M - Toh, Dr S - Smith, Mr RJ CATCHWORDS: Prescribe drug without authority - Prescribe drug of addiction knowing patient a drug addict - Failure to maintain proper professional boundaries - Failure to maintain proper record of treatment LEGISLATION CITED: Exparte Tziniolis: re Medical Practitiioners Act (1996) 67 SR(NSW) 448
Briginshaw v Briginshaw (1938) 60 CLR 336
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Law Society of NSW v Foreman (1994) 34 NSWLR 408
Craig v Medical Board of South Australia [2001] SASC 169
NSW Bar Association v Meakes [2006] NSWCA 340CASES CITED: Medical Practice Act 1992;
Medical Practice Regulation;
Poisons and Therapeutic Goods Act 1966;
Poisons and Therapeutic Goods Regulation 1994DATES OF HEARING: 12.3.2007 to 15.3.2007 DATE OF JUDGMENT: 26 April 2007 LEGAL REPRESENTATIVES: For the Complainant P McGrath of Counsel
For the Respondent M Ainsworth of CounselORDERS: On the undertaking of the respondent, given by the respondent’s solicitor that the respondent will cease practicing medicine at 5.00 pm today, 26th April 2007 the Tribunal orders:; 1 The respondent's name be removed from the Register of Medical Practitioners on 24th May 2007; 2 The respondent not apply to be re-registered for a period of three years from the date of these orders.; 3 The respondent pay the applicant's costs.
JUDGMENT:
THE MEDICAL TRIBUNAL 26th April 2007
OF NEW SOUTH WALES
AT SYDNEY
No. 40037 of 2005
BETWEEN
Health Care Complaints Commission
Complainant
Dr Nicholas Kalokerinos
Respondent
Deputy Chair: Judge A M Ainslie-Wallace
Members: Dr M Wroth
Dr Saw Hooi Toh
Mr Russell Smith
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 ') [1] in two complaints 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; and/or
(iii) contravened the Medical Practice Regulation 1998.
The first complaint concerns the respondent's treatment of a selected group of fifteen patients and relates to his prescription of drugs of addiction [2]for those patients. The second complaint concerns his conduct towards a young patient.
Complaint 1:
Prescribing:
While not every particular is alleged in relation to each patient, the particulars about the respondent's prescribing can be conveniently summarised as:
- Prescribing drugs of addiction for a continuous period of two months without being authorised to do so; [3]
- without exercising responsible medical judgment as to whether it was appropriate to issue the prescriptions;
prescribing drugs of addiction of a type and in a form not authorised;
prescribing drugs of addiction knowing that the patients were drug addicted.
Records:
failing to make a proper record of treatment given to patients; [4]
failing to make a complete record of particulars of drugs of addiction prescribed to patients; [5]
Drug Keeping:
failing to keep a drug register in the required form; [6]
failing to keep drugs of addiction in a secured place. [7]
Complaint 2
The particulars of this complaint are that the respondent failed to maintain proper professional boundaries in relation to this patient. The particulars concern two incidents which occurred on 12th February 2005 and 27th February 2005 after the respondent had offered to give the patient driving lessons.
Background
1 The respondent was born in January 1957 and graduated MB BS from the University of Newcastle in 1991. He holds a degree in Mathematics conferred in 1985.
2 After graduating, the respondent worked in hospitals and a number of general practices. He completed the three-year Family Medicine Programme through the Royal Australian College of General Practitioners. He was first registered in NSW as an intern in December 1991 and on 7th July 1993 registered in the General Category. [8]
3 The respondent worked in his father's general practice at Berkeley, south of Sydney before starting his own practice in Shellharbour in 1996. He has practised there since. From time to time he has had other doctors working at the practice. Up until recently there was another doctor practising in the Shellharbour area. At the date of the Tribunal hearing, the respondent was the only medical practitioner practising in Shellharbour.
4 In August 1999, during another investigation, officers from the Pharmaceutical Services Branch of the NSW Department of Health (the " PSB ") detected that large quantities of drugs of addiction were being dispensed from a pharmacy in Warilla from prescriptions issued by the respondent. Further enquiries in March 2000 of other pharmacies in the same area revealed that the respondent prescribed a range of drugs of addiction and at times, the prescriptions were for large quantities of drugs, for example fifty ampoules of Pethidine. The dates on the prescriptions did not accord with the dates the drugs were dispensed. [9]
5 The PSB investigators made an appointment with the respondent for 18th April 2000 to discuss the matters arising from the investigation. On 13th April 2000, the respondent cancelled the appointment and, on legal advice, declined to participate in an interview with the investigators. On 18th April 2000 the investigators attended the respondent's practice and made copies of his patient notes and his drug registers. After considering those records, a Section 66 Inquiry [10] was conducted by the Medical Board on 18th July 2000. The respondent appeared at that Inquiry and gave evidence.
6 At the conclusion of the hearing the respondent was suspended from practice from 21st July 2000 until 5th February 2001. [11] He was permitted to resume practice, on condition that he not prescribe or otherwise deal with Schedule 8 or Schedule 4D drugs and that he submit to random audits of his practice.
7 On 6th December 2002 the conditions on the respondent's registration were altered. From that date to present, the respondent's registration has been subject to the following conditions:
2. (a) That the respondent not prescribe any Schedule 4D drug or Schedule 4D derivative other than where such a prescription is necessary for the continuation of a patient management plan instituted by a medical specialist,"1. That Dr Kalokerinos not prescribe, possess, administer or handle any Schedule 8 drug of addiction;
(b) That Dr Kalokerinos will only prescribe the drug at the dosage, frequency and length of time stated by the medical specialist in writing,
(c) That Dr Kalokerinos will keep a register of every prescription he writes for a Schedule 4D drug or Schedule 4D derivative in the form of the attached annexure and maintain a file containing all correspondence from medical specialists concerning medications of patients with such drugs. The register and file are to be presented to the NSW Medical Board's auditor as and when audits are undertaken and a copy of the relevant pages of the register is to be forwarded to the NSW Medical Board initially on a monthly basis,
(d) That Dr Kalokerinos not possess, administer or handle any Schedule 4D drugs or Schedule 4D derivative.
3. That Dr Kalokerinos submit to random audits of his practice at intervals to be determined by the NSW Medical Board and the cost of such audits be borne by Dr Kalokerinos." [12]
8 There was no evidence that the respondent had breached any of the conditions imposed on his registration or failed to comply with any request for an audit of his practice.
9 At the commencement of the Tribunal hearing, the respondent admitted all of the particulars of the complaint save for particulars 2(c) and 6(a).
10 On 15th March 2005 the NSW Medical Board received a complaint from the Joint Investigation Response Team of the NSW Department of Health that the respondent had inappropriately touched a young patient while he was giving her a driving lesson. [13] The complaint was investigated and the respondent was notified of it in June 2005. On 21st October 2005, the HCCC wrote to the respondent informing him of the particulars of the complaint and enclosing a statement of the complainant about the incidents. [14] On 14th November 2005 the respondent provided his written response to the complaint. [15]
Complaint 1
11 There were fifteen patients whose treatment by the respondent formed the basis of the complaint. In relation to each one, the respondent had prescribed Schedule 8 drugs of addiction for extended periods. In relation to some patients, the respondent had administered Morphine or Pethidine by injection in his rooms often daily, in some cases twice a day.
12 It is illustrative to examine the respondent's treatment of some of the patients referred to in the complaint.
13 Patient F's notes [16] have a cover sheet entitled " Health Summary ". On it the respondent has written " ? narcotic abuse ". The respondent could not remember how he came by that information, what drug the patient was suspected of abusing nor whether any of the medications he went on to prescribe or administer included the drug she was apparently abusing.
14 According to the notes, the patient attended the respondent on 23rd February 1999 complaining of chest pain and a cough. He prescribed Codral Forte. She attended on 1st March 1999 and the notes record " (increase ) rib pain" (accepted to mean increased rib pain). The respondent noted that on examination there was rib tenderness. He administered 75mg Pethidine. The patient returned on 2nd March and 18th March again complaining of pain and on both occasions was prescribed Codral Forte. On 19th March she returned again complaining of pain (from a sore tooth) and the respondent administered 100mg Pethidine twice on that day. The patient returned on 22nd March and, again, received an injection of Pethidine.
15 On 14th April 1999 the patient notes record " c/o depression +LBP " (accepted to mean low back pain), on examination the notes record " generalised tenderness in L/S" (assumed to be a reference to the lumbar/sacral spine), "psych- depression/stable ". The respondent administered Pethidine, Stemetil and prescribed Codral Forte. The patient returned on the 15th April, the same matters noted and she received an injection of Pethidine and a prescription for Codeine Phosphate.
16 Thereafter, the patient returned to the respondent almost every day. The notes in April and May 1999 contain the notations " c/o LBP " and a record of an examination. From May 1999 the patient notes make no reference to any examination by the respondent.
17 By May 1999 the patient was attending the respondent daily and receiving daily, sometimes twice daily injections of Pethidine. On 11th May the respondent administered Pethidine and prescribed 20 Endone tablets for the patient. He then prescribed 20 Endone tablets for this patient every ten days in addition to the daily (or more) Pethidine injections. By June 1999, the respondent was prescribing Endone every four or five days for Patient F.
18 On 17th June 1999, the respondent administered 10mg Morphine for the patient as well as prescribing Endone for her. On 23rd June the respondent administered Pethidine and prescribed 20 tablets of Endone. On the 24th June he again administered Pethidine and prescribed 20 tablets of Endone and on 25th June administered Morphine (15mg).
19 This pattern of prescribing continued. By August 1999 the respondent was administering Morphine 10mg every day and he prescribed Endone. From 10th August 1999 the respondent was administering 15mg Morphine to this patient every day, sometimes twice daily, for example on 26th November, 29th November, 14th December and 22nd December. The patient last received Morphine on the 11th April 2000.
20 On 14th August 1999 the respondent applied for and received an authority from the NSW Health Department to prescribe Oxycodone (Endone) tablets not exceeding eight per day of 5mg for this patient. That authority was expressed to expire of 1st July 2000. In October 1999, the respondent applied for authority to administer 15mg Morphine. The application was refused on 10th November 1999. The letter of refusal, indicated that further consideration would be given to the request on receipt of: "any recent hospital or specialist reports...regarding the patient's specific narcotic requirements...These should include a recent Pain Clinic review if possible".
21 The letter also advised:
"Both the Department and the Medical Committee established under Section 30 of the Poisons and Therapeutic Goods Act to advise the Department on the issue of authorities to prescribe drugs of addiction have strong reservations about the use of parenteral opioids for patients with chronic conditions."
22 The patient records contain letters from Dr Matheson, a consultant neurosurgeon who was attempting to treat her chronic pain. In July 1999, Dr Matheson wrote to the respondent and recommended that the patient remain: "on her current Pethidine and Morphine regimen to control her pain." In November 1999 the respondent referred the patient to a Dr Bashford and asked him to " review her analgesia ". On 10th January 2000 Dr Matheson wrote to the respondent that he could not get further approval for Morphine until the patient has been to a Pain Clinic.
23 On 20th July 2000 the respondent made a further application for authority to prescribe Endone to patient F. The application was refused.
24 The respondent agreed that he prescribed drugs of addiction for this patient without authorisation. He said that he applied for the authorities because he " probably believed that she needed it ". [17] He agreed that when he had applied for the authority he had already been prescribing Morphine, Pethidine and Codeine Phosphate for some time.
25 The respondent said that while he " probably " realised at the time that he was administering two different opiates while writing prescriptions for Endone tablets, he could not recall whether he thought that that level of prescribing and administration could lead to an overdose. [18] The respondent said that his treatment plan was to ease the patient's pain with drugs.
26 Patient G had been a patient of the respondent since 1996. The notes show that the respondent had been treating her for abdominal pain and depression. On 4th August 1998 the respondent noted the patient complained of depression and abdominal and back pain. He prescribed 20 Endone tablets. He continued the prescription of Endone or MS Contin. In April 1999, the respondent first administered Pethidine. On 20th April he administered 100mg Pethidine, prescribed 20 tablets of MS Contin and 20 tablets of Codeine Phosphate. He regularly administered Pethidine and continued to prescribe Codeine Phosphate and MS Contin for this patient. In June 1999 he began to administer Morphine 15mg and continued to prescribe Codeine Phosphate and MS Contin. The last administration of Morphine was in August 1999 after which the respondent prescribed MS Contin and Codeine Phosphate very frequently for this patient. The last prescription of MS Contin was two days before the respondent appeared before the Section 66 Inquiry . On 21st July, the day that he was suspended from practice, he made an urgent application for an authority to prescribe MS Contin for the patient.
27 In January 1999 Dr Manohar, a rehabilitation specialist, wrote to the respondent about patient G and recommended that he: " try and gently wean her off her narcotic analgesics ". In February 2000 a specialist Endocrinologist, Dr Depczynski, wrote to the respondent and noted that: " the patient's poor appetite relates to use of Morphine derivatives ".
28 The respondent agreed that, despite Dr Manohar's recommendation, he continued to prescribe narcotic analgesics for this patient.
29 On 19th July (the day after the respondent appeared at the Section 66 Inquiry) the respondent prescribed 120 tablets of Codral Forte and MS Contin for this patient.
30 Patient H's notes commence in February 1999. At that time she complained about her weight and the respondent prescribed Duromine for her. The notes record the results of an ultrasound showing a fatty liver. On 5th July 1999 the patient attended the respondent and complained of abdominal pain which the respondent noted as " colic ". The next day, 6th July the notes record "colic ". The respondent prescribed Endone. The patient received Endone again on 23rd July after she complained of increased abdominal pain and again on the 26th July when the respondent noted " cease Endone ". The patient attended regularly complaining of abdominal pain. On 12th November the notes record " nausea and abdo pain " and the respondent administered 100mg Pethidine. The respondent administered Pethidine to this patient on 17th and 24th November 2000 after which she received daily, sometimes twice daily, injections of Pethidine from the respondent. On 18th February 2000 she received three administrations of Pethidine. On 25th February the respondent prescribed Endone as well as administering Pethidine. The prescription for Endone was repeated about every three days in addition to the daily injections of Pethidine.
31 On 13th 14th and 15th March 2000, the respondent twice administered Morphine. The respondent then returned to administrations of Pethidine. On 21st and 22nd March 2000, he administered Pethidine 100mg twice and 15mg Morphine. On the 23rd March he administered Pethidine and Morphine and wrote a prescription for Endone. The last recorded administration is 3rd April 2000 when he administered Pethidine 100mg four times and at the same time wrote a prescription for 20 Endone tablets. On 5th April 2000 a specialist to whom the respondent had referred the patient, wrote and noted: "(patient H) is now dependent on narcotics".
32 During his evidence, the respondent said that, on reflection, he believed that a number of the patients whose treatment formed the particulars to the complaint, had come to the practice as drug seeking patients. One of the patients nominated as being drug seeking was Patient H because he said she was receiving regular injections of Pethidine. When it was pointed out to him that she had been his patient for about a year before she started receiving Pethidine, the respondent then said that he was not sure that she was drug seeking although preferred the view that she was because: "reflecting back on the way she looked at the time...I believe now I can recall she was actually requesting it (the Pethidine)".
33 There is nothing in the notes to suggest that the patient requested the Pethidine nor why, if she was a drug-seeking patient when she first attended the respondent, she would wait for twelve months before asking for Pethidine. For reasons which will appear later in these reasons, the Tribunal does not accept the respondent's evidence on this. [19]
34 The respondent was asked why he decided to administer Pethidine to this patient. He said that it was because she complained of nausea and abdominal pain. It was suggested to him that the patient had made similar complaints from January 1999 and the respondent said that, because his note indicated an increase in pain, he believed it was appropriate to administer Pethidine. [20] There is nothing in the patient's notes to show why the respondent decided to administer Pethidine at this time.
35 Patient A 's Health Summary notes " iv abuser ". The respondent was reluctant to concede that that he knew from the first consultation that the patient was an intravenous drug user and said that the note would not necessarily have been written on his first consultation with the patient.
36 Later, the respondent agreed that on the 19th March 1999 he prescribed a drug for withdrawal from IV drug use (and had made a note to that effect). He then agreed that he knew he was an IV drug user in March.
37 The notes of 30th December 1998 record " c/o IV drug use withdrawal " and on that occasion, the respondent prescribed Valium. On the 19th March 1999 the patient is noted as " requesting iv drug use withdrawal ". On this visit, the respondent prescribed Physeptone (accepted to be used in assisting drug withdrawal symptoms). On 22nd March 1999, the respondent prescribed Physeptone again The record for this consultation is " for rpt meds ". The respondent prescribed Physeptone on 30th March, 6th April and 17th May 1999. There is no note of any referral to a drug addiction specialist nor of any treatment plan other than the word " counselling " written on each attendance. The respondent said that even though there is no note of it: " that's not to say I definitely did not try to refer this gentleman to a drugs clinic, a methadone clinic ". [21]
38 The respondent made no note of nor could he recall how long the patient had been using heroin or how much he had been using. He agreed that this information would be important to his treatment of the patient but said that he may have known this at the time but had not made a note of it. The respondent said that from time to time he made notes on scraps of paper during consultations and may not have transposed the information on the scraps into the patient notes. He made no note of whether the patient was also receiving methadone.
39 The respondent said that he would have prescribed the Physeptone for withdrawal symptoms. The respondent thought that he probably prescribed the Physeptone as tablets and, when asked what he did to stop the patient selling them, said: " I probably would have talked to him " about the need to take the drug according to directions. He referred to the record of " counselling " which the respondent said indicated that they talked about the subject. He could not remember what was said. [22]
40 The respondent had no authority to prescribe Physeptone for the patient.
41 Patient L had been a patient of the respondent since 1997. In June 1998 the patient attended complaining of " LBP " and the respondent ordered investigations including X ray. On 13th June the patient's notes record " LBP improving ". On 7th July 1998 the patient's notes record " LBP" and the respondent prescribed Panadeine Forte. The patient continued to attend the respondent and to complain of lower back pain.
42 On 25th August 1998 and on 1st September, the respondent prescribed Endone. On 7th September the respondent administered Pethidine and did so every day until 15th September. The respondent again administered Pethidine to this patient in November 1998 and wrote prescriptions for Endone. In December 1998 the patient received almost daily injections of Pethidine. By January 1999, patient L was receiving twice daily injections of Pethidine and prescriptions for Endone. In July 1999 the respondent began daily injections of Morphine with occasional injections of Pethidine. In September the frequency of the Morphine injections decreased and the respondent prescribed 20 Endone tablets every three or four days. In November 1999 the injections of Morphine continued and the patient received daily or twice daily injections of Morphine. Between 12th and 17th April the respondent wrote prescriptions for 60 Endone tablets.
43 On 27th August 1999 the respondent was granted an authority to prescribe Oxycodone tablets to a maximum of 8 tablets per day for this patient. He had no authority to administer Morphine or Pethidine.
44 Patient O's notes commence on 14th April 1999 and she is recorded as complaining of migraine. On each of 14th and 15th April, the respondent administered two injections of Pethidine 100mg. Between 14th April and 14th May 1999, the respondent administered almost daily injections of Pethidine to this patient. From 27th May the respondent administered Morphine on a number of occasions before reverting to the regular use of Pethidine. On 17th January 2000 the respondent administered two injections of Pethidine and one of Morphine to this patient. The respondent continued to administer Pethidine regularly to this patient up until 6th April.
45 On 14th February 2000 the respondent referred the patient for an antenatal assessment and received a report that she was fourteen weeks pregnant. On 29th February 2000 he again referred her for an ultrasound.
46 The respondent said that he administered Pethidine to this patient for migraine. He could not remember whether he knew at the time, that the use of Pethidine to treat migraine was widely criticised nor whether he was aware of the Department of Health guidelines for the prescription of opioids for the treatment of migraine. [23] The respondent said that he probably believed the administration of Pethidine to a pregnant woman was appropriate. He could not recall whether he told the obstetrician to whom he referred the patient that he was giving her daily Pethidine injections. He could not recall discussing the potential effects of Pethidine on pregnancy with the patient nor could he recall considering whether the baby might have been affected by the daily administrations of Pethidine.
47 Patient J . The respondent had been regularly prescribing Endone for this patient from 10th May 1999. The respondent referred this patient to a Pain Management Specialist, Dr Ditton. Dr Ditton wrote to the respondent on 26th May 1999 and recommended that he reduce her intake of Endone and substitute Panadeine Forte. On 9th June 1999 the patient notes show a prescription for Panadeine Forte however, thereafter the respondent reverted to prescribing Endone. The respondent said that he tried to follow the recommendations and then said he may not have received Dr Ditton's report for one or two months after it was sent. He said that there were times when he had not received specialist's reports. [24] There is no reasonable explanation for the change in the respondent prescribing from Endone to Panadeine Forte on 9th June 1999 but that he had received Dr Ditton's report and had attempted to adopt his recommendation. The Tribunal does not accept that he may not have received the report for months after it had been written.
Credit
48 The respondent was a most unsatisfactory witness. He claimed that he had virtually no memory of any medical knowledge possessed by him from 1999. For example, he could not recall what he knew about the administration of Pethidine to pregnant women or the guidelines for its administration. When it was suggested to him that in 1999 he knew that by law, he was not allowed to prescribe a drug of addiction other than in accordance with an authority, the respondent replied: " I probably did ". [25] When he was asked what he understood to be the rationale for having to obtain an authority to prescribe drugs of addiction, the respondent said: " my understanding at the time was obviously very bad indeed ". [26] The respondent often said that he could not remember what he knew or thought at the time. When he was asked whether he thought that there was a risk of overdose in giving Morphine, Pethidine and prescribing Endone he said: " I can't recall...these events happened eight years ago ". [27] He could not recall what he knew of the regulations regarding the administration of Schedule 8 drugs. [28]
49 The respondent was unwilling to give a definitive answer to questions. Instead he couched his responses in terms of probabilities. For example, he was shown a notation on a patient record " suspected narcotic abuse ". The following exchange occurred:
Q. It's your writing, is it not?
A. I believe so.
Q. It is, isn't it doctor?
A. Yes, I think it is
Q. It is isn't it?
- A. I'm sure it is. I don't recall writing it, but I'm sure it's my - I'm very sure it's my handwriting".
50 This ludicrous stance was adopted by the respondent on more than one occasion during his evidence. The respondent was shown a prescription written in Patient L's name for fifty ampoules of Pethidine. [29] It was suggested to him that it was written on 26th April 1999. He said that it " looks like " his handwriting on the prescription but struggled to make out the date. He would not agree with the proposition that he had written it because he could not read the complete date. Even when shown another copy of the prescription, the respondent would not concede the date because: " it's not 100% clear, but I think it's close to 1999 ". Finally the respondent agreed that it was " probably correct " that he had written the prescription for fifty ampoules of Pethidine for patient L. A little later the respondent said: " Before I wrote the script, if I did write a script on this occasion... ". [30]
51 Later that day while being asked questions about this prescription, the respondent replied: " I can't recall if I wrote the script ". When it was suggested to him that he had agreed to writing it before the luncheon adjournment, the respondent said: " I probably did, but I can't recall. " [31]
52 The prescription to which the respondent was taken during his evidence is patently clear both as to the date on which it was written and that it is in the respondent's handwriting. The Tribunal formed the view that the respondent was not being candid and was at pains, which at times descended into farce, to avoid having to commit himself to a course of action. The Tribunal finds that the respondent claimed to have no recollection to avoid being held to account for his actions.
53 His evidence was so vague, contradictory and inconsistent as to be of little probative value to the assessment of any issue before the Tribunal.
54 The clear indication from all of the evidence is that by early April 2000, the respondent was aware that the PSB was investigating the pharmacy from which he obtained his Schedule 8 drugs. In most of the notes of the patients referred to in the complaint, the prescription of Schedule 8 drugs ceases in April 2000. The respondent denied that he stopped his pattern of prescribing drugs of addiction because of the PSB investigation.
55 The respondent said that he had become concerned that some of the patients in the practice were drug seeking and he attempted to do something about it. He said that he discussed with Dr Hoffer (who, he said, introduced many of the drug seeking patients to the practice) and told him that he was not happy with the treatment of these patients and he said that he tried to send the patients to specialists. He said, by way of example, that he had asked Patient I to go to a specialist on a number of occasions [32] but that this would not necessarily be recorded in the patient notes. There is no note that the patient was urged to attend a specialist.
56 While the respondent treated this patient, he administered up to three injections of Morphine in one day and on 10th January 1999 administered four injections of Morphine. The respondent continued to administer Morphine to this patient until 17th April 2000. There is no reference in the notes to discussions with the patient about attending a specialist, nor attempts to persuade him to reduce or moderate his intake of drugs. The notes are sparse, each consultation is recorded as " c/o LBP " with a note of administration of Morphine.
Authorities
57 The respondent said that he had had " some education " about the prescription of Schedule 8 drugs, knew that they were highly addictive and said that he was aware of " some restrictions " on their prescription. The respondent said that, in general terms, he knew that an authority was needed because there were " regulations ".
58 In relation to some patients, the respondent sought an authority well after he had begun prescribing the drugs. [33] The authority sought did not include all of the Schedule 8 drugs being prescribed by the respondent. He could not recall why he applied for authority to prescribe only one drug when he was prescribing others or why he made application for authority at that particular time other to say that: "I believe probably at that date, or that stage, she needed it". He could not remember why he had applied when he had been administering the drug for some time. [34]
59 His explanation for why he applied for authorities in some instances and not in others was: " sheer laziness and neglect ". [35] In other cases, the respondent never sought an authority.
60 The application for an authority to prescribe a drug of addiction requires the applicant to certify whether in the applicant's opinion, the patient is or is not addicted. " Addict " is defined underneath that part of the form as:
"a person who has acquired, as a result of repeated administration of (a) a drug of addiction...an overpowering desire for the continued administration of such a drug".
61 The form contains information for the assistance of the practitioner about when an authority is required and a telephone number for further information. On none of the applications for authority to prescribe that the respondent made did he indicate that the patient was addicted to the drug. The respondent could not explain why he certified that Patient F was not an addict nor could he recall why he thought that she was not. As to the definition of the term " addict " which appeared just centimetres below the place where the respondent certified that the patient was not addicted, the respondent said that " I obviously did not pay enough attention to it ". [36]
62 The respondent appeared before the Section 66 Inquiry on 18th July 2000. At the time that he appeared he was still prescribing drugs of addiction for his patients without authority. In relation to two patients, he made urgent applications for authority on the day he was suspended from practice, [37] 21st July 2000 and the day before. [38]
Prescribing
63 The respondent said that he had come to an arrangement with a local pharmacy, " Wal's Pharmacy ", at Warilla that he or his receptionist would place orders for large quantities of Schedule 8 drugs by telephone and the drugs would be delivered to the surgery: " up to half a dozen times per week ". [39] The respondent said that sometimes the drugs would be ordered in the name of a particular patient and on others no patient name would be given.
64 The respondent said that sometimes he would administer the drug to a patient and write a prescription for the drug at the consultation, on other occasions he would write the prescription later. The respondent said that he would record that he had dispensed the drugs either in the patient's notes or on a scrap of paper at the time of administration and would later transcribe the content of the paper into the patient records.
65 The respondent said it was easy for him to order the drugs in advance from the pharmacy.
66 From time to time the pharmacist would send the respondent a list of prescriptions " owed " for the drugs which had been delivered. The pharmacist would provide the name of the patient for whom the prescription was owed or would provide a list of dates on which the drugs were delivered and the respondent said that he would correlate those dates with his notes and write the appropriate prescriptions. [40] Sometimes the respondent could not correlate the notes with the demand for prescriptions because his notes were inadequate and, in that event, he would write the number and type of prescriptions said to be owed by the pharmacist and send them to the pharmacy. [41] When the pharmacist nominated patients by name for whom who he said he was owed prescriptions, the respondent concluded that the pharmacist must have had a record of those patients based on the telephone orders from the surgery. [42]
67 When the respondent could not correlate the request for prescriptions with his notes, he would write the prescription in the names and for the quantities requested by the pharmacist.
68 It was in this way that the respondent came to write a prescription for fifty ampoules of Pethidine in the name of patient L.
69 The pharmacist, George Angelis, wrote to the respondent [43]and asked the respondent to write " private prescriptions " for Patients L and I because they were Workers Compensation patients: " as this would finally balance our books regarding the Pethidine and Morphine amps we have delivered ". On the following page there is a request for three prescriptions to be written in the name of Patient I for fifty, fifty and twenty ampoules of Morphine. For Patient L, the pharmacist wanted three prescriptions for fifty ampoules, one prescription for twenty-five ampoules and one prescription for ten ampoules of Pethidine.
70 The respondent said that on receiving this note he would have: " probably correlated with my records, possibly given him a ring and probably written scripts ". [44] He said that if there were " similarities " between the note and his records he would write the requested prescriptions. The respondent said that he did not know what the reference to Patient L and I being " Workers Compensation " patients meant nor could he recall what the reference to " private prescriptions " meant.
71 In an earlier note [45] the pharmacist had asked the respondent to write " private prescriptions " for Patient I and Patient L. In cross-examination about that note, the respondent had not expressed any doubt as to what was meant by those words. The Tribunal is of the view that the respondent well knew at the time and during the hearing what the chemist meant by " private prescriptions " and finds this is another example of the respondent's lack of candour.
72 The respondent was shown the copy of the prescription for 50 ampoules of Pethidine for Patient L and was asked to correlate it to the Patient L's records. He said that at the time he wrote the prescriptions: " he probably thought it would have " related to Pethidine he had administered to the patient.
73 The respondent agreed that he did not always make a note of the administration of drugs. Sometimes he would make a note, other times he relied on his recollection. He agreed that some entries in his notes, such as those which appear in the notes of patient L of and following 15th April 1999, could have been written at the same time. [46] The respondent said that there were times when the patient's file was misplaced and was not with him during a consultation and he made the entires later from his memory. In relation to Patient I, for whom the pharmacist wanted prescriptions for Morphine, the respondent said that he could not be sure that the patient had actually received the Morphine to which the requested prescriptions were said to relate. [47]
74 During his evidence about this practice, the respondent said that he had become unhappy with the way he was keeping his notes and said that he wanted to get out of the habit of receiving notes from the chemist and writing scripts according to the note. He could not recall what he had done to effect that change nor when he had started to make any change. [48]
75 The pharmacist wrote another note to the respondent which although undated attaches invoices from Wal's Pharmacy to the respondent dated from January 1999. [49] The note says: " your account is currently $2,420 in debit ".
76 The respondent said that this is a reference to the amount he owed the pharmacy for items ordered by phone. He could not say for certain that it referred to the supply of Schedule 8 drugs. The respondent agreed that he ordered Schedule 8 drugs from the pharmacy, which delivered them and he administered them to his patients but said that he could not remember how the Schedule 8 drugs were paid for. [50] Nor could the respondent recall whether he or his patients paid for the drugs administered by him. The respondent said that some of the drugs were paid for by prescriptions and in relation to others: " I may have just plain not paid ". When pressed about whether he did not pay the chemist, the respondent said that: " I am not saying it happened, I'm just saying it's a possibility. " [51]
77 In a third note to the respondent dated 3rd February 1999, [52] the pharmacist provided a list of list of items and an account balance " brought forward " of $1,540. The document lists drugs and other pharmaceuticals against various dates from 3rd February until 13th May 1999. For example, against the 8th February 1999, the pharmacist has written: " 2 x Maxolon Amps (NHS).....3 x Pethidine Amps (NHS) ". He said that it was typical of the letters from the pharmacist which tallied the drugs delivered and the prescriptions owed. [53] The respondent said that although he had written " 13 boxes " on the document he did not know what those words meant. The Pethidine delivered by the chemist came in boxes of five ampoules. There were no patient names ascribed to the drugs delivered. The respondent said that he would try to clarify for whom each prescription related. He was reluctant to concede that he would simply have written the prescriptions as requested by the pharmacist which, the Tribunal finds, is the most likely outcome given the state of the respondent's clinical notes.
Drug Register
78 The respondent did not keep an accurate record of the drugs administered by him and had made a paltry attempt to keep a drug record. The Schedule 8 drugs ordered in bulk and kept in the surgery were exclusively injectable drugs. The respondent said he believed it to be appropriate to maintain a large stock of injectable Schedule 8 drugs on hand in the surgery. [54] He did not believe that it was necessary to write a prescription before administering the drug to a patient.
79 The respondent kept three exercise books as a drug register. The register kept by the respondent did not reflect the actual drugs prescribed to individual patients nor did it properly reflect the drugs delivered from the pharmacy. The respondent would only concede that there were " probably inaccuracies " in the books. The book for Pethidine records that between 2nd March 1999 and 7th April 1999 there were four counts of the drug stock which listed the quantities held as 18, 10, 20 and 17. There is no other record of where the missing or extra drugs have gone or come from. The book for Morphine records a total of fifteen administrations of Morphine to Patient I from 14th December 1998 to 8th January 1999 yet the notes for this patient show twenty-three separate administrations of Morphine in the first ten days of January 1999 alone. Despite being given an adjournment to compare the drug books with the patients' notes, the respondent would not agree that all of the administrations of Morphine to Patient I had not been recorded in the drug register.
Rehabilitation
80 Since he was investigated by the PSB, the respondent has not discussed his practice of ordering drugs from the pharmacy or his practice of keeping large amounts of drugs of addiction in the surgery to administer to patients with any colleague or with his father who was a general practitioner. The respondent said that his father died about five or six years after he started his practice at Shellharbour in 1996. He said that although he had discussions with his father from time to time, he could not recall specifically discussing his treatment of the patients or any other aspect of his practice at this time with
his father.
81 The respondent said [55]in his statement that while he was suspended from practice he undertook a number of courses to help him understand his shortcomings in relation to prescribing for patients. He completed the Clinical Skills in Drug and Alcohol Medicine through the NSW Institute of Psychiatry in December 2000, in June 2003 and attended a training workshop, part of the Pharmacotherapies Accreditation Course through the University of Sydney, and completed a half day clinical placement with an approved pharmacotherapy prescriber.
82 The respondent said that between 1997 and 2000, his knowledge of the relevant rules and regulations governing medical practice was poor.
83 The respondent said that he now understands the requirement to keep a drug register. He said that the law required that it be completed accurately to keep track of the drugs because patients could abuse the drugs or steal them. In relation to keeping supplies of injectable Schedule 8 drugs in the surgery, the respondent said that he did not believe there was any reason not to keep them nor was there a requirement to write a prescription for the drugs (other than in an emergency situation) if they were on hand in the doctor's surgery. [56]
84 The appreciation that his practice did not accord with that expected of a competent general practitioner, seems to have come late to the respondent. He agreed during the Section 66 Inquiry that he stopped ordering drugs in bulk from the pharmacist when he heard that the pharmacist was being investigated. He did not make that concession before this Tribunal. The respondent said that he wanted to stop his arrangement with the pharmacist because he was concerned about the arrangement which he thought was irregular.
85 He also said that he was becoming increasingly concerned about the patients from when they first appeared at the surgery (referring to the patients who he said he now recognised as drug-seekers). The respondent said that he was concerned about the Schedule 8 drugs they were receiving and concerned about their treatment. [57] The respondent said that he tried to do something about the drugs they were receiving but what he did was not noted and, he said what he did was inadequate. The respondent maintained that by the time the PSB was investigating him in April 2000, he had made changes to reduce the amount of drugs prescribed to his patients.
86 The Tribunal does not accept this evidence. There is no indication in the patient notes of any attempt to stop, reduce or change the way the respondent prescribed or administered drugs to the patients. In relation to some patients, over the time that the respondent was treating them he increased the level of medication they received to the extent that in many instances patients received Schedule 8 drugs three, sometimes four times a day. The Tribunal is satisfied that the only reason the respondent stopped prescribing as he had done was because he heard that the pharmacist from whom he received the drugs had become the subject of investigation.
87 The respondent was asked how he would deal with drug seeking patients in the future should he be in the position to prescribe Schedule 8 drugs again. His primary position is that he will never prescribe Schedule 8 drugs again and said that he had "an aversion" to them. The respondent was asked how he identifies drug seeking patients who presently come to his practice and he recited the criteria used to identify the typical drug seeking patient which the respondent agreed were set out in an article published by NSW Health. The respondent did not say how he applied those criteria to any patients who came to him or what he has put in place to deal with any drug-seeking patients.
88 The Tribunal formed the view that, apart from knowing the general characteristics of a drug seeking patient, the respondent had not then considered how to apply that knowledge to his practice or how to use it to prevent himself prescribing as he had in the past.
Peer Review
89 The respondent's conduct was considered by a peer reviewer, Dr Edward Kremer. [58]
90 Dr Kremer referred to what he termed the " statutory failures ", that is the respondent's disregard for the requirement to keep a drug register, his selective application for authority to prescribe Schedule 8 drugs and the inadequacy of the respondent's notes.
91 Dr Kremer reserved his most trenchant criticism for the respondent's prescription of drugs of addiction. Dr Kremer said that in none of the patient files could he find a single instance where he would have considered it " reasonable, much less appropriate " to prescribe a Schedule 8 drug and certainly not in the quantities or for the length of time that the respondent had prescribed. He found it " incomprehensible " that the respondent prescribed large quantities of narcotics where, he said, that it was obvious that they were inappropriate and an incorrect method of treatment of the patients. Dr Kremer said that he could find no evidence of any systematic investigation of the presenting problems of the patients nor any attempt at specific treatment of their presenting problems by the respondent. The respondent had no liaison with other practitioners whether specialists or not other than for what Dr Kremer referred to as " non specific " referrals.
92 Dr Kremer said in summary:
- " I believe that Dr Kalokerinos's behaviour falls far below any acceptable standard and the blatancy and grossness of his misconduct is simply not justifiable. I disapprove very strongly of the things that have been shown to have happened in this matter and I am certain that this behaviour would invite complete disapproval from most of my colleagues ."
Complaint 2
Background
93 Patient P and her family had been patients of the respondent for many years. Patient Plaintiff was first treated by the respondent in May 1998 when she was little more than ten years old. Her family included two older brothers and her mother and father. In 2001 her father had committed suicide. According to the respondent and the patient, on every occasion on which she attended the respondent her mother always accompanied her as did one of her brothers.
94 On 25th March 1999 the respondent noted in her patient notes: " c/o depression. O/e psych - depression/stable ". From August 1999 to 13th January 2005 the notes record the patient complaining of depression on sixteen different occasions. On many of those occasions, the notes record the respondent's observations as being - " depression" or "depression/stable ". On every occasion, the respondent's treatment plan was noted as being " counselling ".
95 From October 2004, the patient commenced attending the respondent weekly. In November 2004 the patient is noted as attending the surgery with complaints of neck pain which the respondent treated with " physio ", which the Tribunal understands involved him massaging her neck in the surgery.
96 On 3rd December 2004, the respondent noted that the patient complained of being sad. On examination he has noted " psych - sad/insomnia ". He wrote " DX depression ". His treatment plan was " reassure, counselling ". Again on the 23rd, 29th December 2004, 5th January and 13th January 2005, the patient was noted as complaining of being sad and again the respondent made the same note of " sad/insomnia " and, again diagnosed " depression ". On each occasion the respondent's treatment plan was " reassure, counselling ".
97 In 2005 when the patient was seventeen years old she was learning to drive. She said that this was discussed during one of her appointments with the respondent who offered to her mother that he would give the patient a driving lesson. Her mother agreed.
98 On 12th February 2005 the respondent took the patient for a driving lesson in his car from 2.45pm until 5pm. They drove around the local area. At the end of the lesson the respondent directed the patient to drive back to his house. The respondent invited the patient into the house and into the sitting room upstairs. They had water to drink and made general conversation. The patient said that the respondent asked her how her neck was and offered to give her a massage. She refused. About thirty minutes to one hour later the respondent drove her home because she told him that she had to go to work.
99 The next week, at the patient's regular appointment with the respondent, he asked her whether she would like another driving lesson. The patient, with the consent of her mother, agreed.
100 The second driving lesson took place on 27th February 2005 and lasted from 11.00 am until 5.00 pm. The respondent and the patient drove from Shellharbour to Berry, some distance south from Shellharbour. The patient said that as she was driving, the respondent touched her hand a few times while she was changing gears. The respondent said in his statements that he did put his hand over hers while she was driving but said that it was to assist her to change gears.
101 When they arrived in Berry, the respondent took the patient to a nearby café and bought her lunch. She said that after lunch the respondent asked her whether she had lost weight and she said that she had not. The respondent told her that she ought not lose any more weight and said she was thin enough. The patient said that while he said this, he looked at her body and figure in a way which made her feel uncomfortable.
102 During the drive back to Shellharbour, the patient said that the respondent put his hand on her leg and rubbed it, which made her feel uncomfortable.
103 When they reached Shellharbour, the respondent told the patient to drive to his house and asked her to come inside. They went to the sitting room and had conversation. The patient said that the respondent referred to hurting his back and talked about an exercise machine that he used (referred to as an " Ab-Swinger ") which he kept in his bedroom. He offered to show it to her but she refused. The patient said that the respondent walked down the hall to his bedroom and told her to come into the bedroom to see how the machine worked. She said that she walked to the door and stood there because she said that she felt it was not right to go in. She said that the respondent insisted that she try the machine and eventually she tried it for a short time. The patient said that the respondent sat on the bed and asked her how her neck was. She said it was alright.
104 The patient said that she sat on the bed next to the respondent. In her evidence she said that he must have asked her to because she did not believe she would have done so otherwise. [59] She said that when she sat next to him on the bed he pulled her towards him and, with her sitting between his legs, began to massage her neck and shoulders. The respondent told her that she was beautiful and then massaged her back, hugged her to him and rubbed her sides, stomach and under her breasts, first on top of her clothes and then he lifted her shirt and massaged her bare stomach and under her breasts.
105 The patient said that he then hugged her from behind and pulled her back on top of him. She said that she got up immediately and fell onto the carpet. The respondent told her to come closer. When she asked him why he said: " come closer and you'll find out ".
106 The patient refused and said to him: " you are a 48 year old man and I'm a 17 year old patient, you don't do that. " The respondent said to her: " whatever happens between us, you're not to tell anyone. Our secret right? "
107 The respondent denied that his comments were made in relation to anything which had happened in the bedroom and said that when he was taking the patient home he showed her his collection of antiques and he told her they were valuable and it was this fact that he had asked her to keep confidential.
108 The respondent suggested that the patient ring her mother which she did. They ate some dinner and watched some television. The respondent drove her home sometime after 6.00 pm. He came into the house and spoke to the patient's mother. There was some discussion about the patient having bought a new computer and she offered to show it to the respondent. It was in her bedroom. She said that he was in her room for the brief time it took to look at the computer.
109 The patient said that the next day, she sent a text message to the respondent in which she said words to the effect: " what happened should not have happened ". She said in the text message that what happened was totally inappropriate and that she would not tell anyone and would pretend that it did not happen.
110 At school a few days later, the patient's close friend asked her whether something was wrong and the patient told her friend what had happened. The friend reported what she had been told to a teacher who informed the school counsellor. The patient went to see the school counsellor who told her to write an account of what had happened. The counsellor reported the matter to the authorities.
111 The respondent responded to the allegation in a statement made in December 2005. [60] He also made a statement for the Tribunal hearing. [61]
112 The respondent denied commenting on the patient's weight or figure on 27th February. He denied that he touched her leg during the driving although, he said, that he may have placed his hand over hers while she was negotiating the gears on his car. The respondent said that as they were approaching Shellharbour, he asked the patient whether she wanted to keep going and she said yes so he suggested they drive to his house. The respondent agreed that he asked her into the house and offered to show her the exercise machine in the bedroom and then demonstrated it for her. He said that when he was getting up from using the machine his back became painful and he sat on the bed to rest. He said that it was the patient who asked him to massage her back. He asked her whether there was anything wrong with her back and she said no, but she liked having her back massaged.
113 The respondent denied pulling her to him or telling her that she was beautiful. During the massage, the respondent said that it was the patient who lifted her shirt but agreed that he continued the massage underneath it.
114 He massaged her upper and lower back above the waistband of her trousers. He denied rubbing her stomach, neck or under her breasts. The respondent agreed that the areas he massaged on the patient were different from those he massaged in his surgery when she complained of a sore neck.
115 The respondent said that during the massage, his back pain became worse and he stopped massaging the patient. When he did, he said that she pushed him backwards onto the bed and she lay backwards on top of him with her head in his groin area. He said that he felt her push her head into his genitals. The respondent said that the pain in his back was so intense that he could do nothing but lay on the bed, eventually he lifted the patient off him.
116 The respondent said that he felt uncomfortable and offered the patient dinner to get her out of the bedroom. He said that his back was still sore but was improving and shortly afterwards was able to drive her home. The respondent said that when he took the patient home she showed him her computer and opened her drawers and showed him her underwear.
117 Although the respondent said that he stopped the massage because he felt uncomfortable, it was predominantly because of his back pain rather than any sense of inappropriateness. [62]
118 Despite a significant challenge to the patient in cross-examination, her evidence was unshaken. She was able to give significant and particular detail about events which persuade the Tribunal that she has a clear recollection of them. She conceded that she had been free to leave at any time and, after the massage on the 27th February, she remained at the house with the respondent.
119 The patient said that, although she felt uncomfortable after the respondent rubbed her leg while driving, she did not ask to go home. She said that she ought to have but did not. She said:
"I thought it was me being paranoid a that time. I just thought it was just me....that it was nothing to worry about ". [63]
120 She agreed that she did not tell her mother nor anyone else about what had happened until she told her school friend because she said: " I didn't know how to feel so I kept it to myself. I didn't want to share it with anyone. " [64] She said that she trusted him:
- "I had a trust. I …felt comfortable that he would have a sense of duty of care to look after me while I was in his presence… I thought that he would look after me in a professional manner. I didn't think that anything would happen." [65]
121 The patient agreed that she had not mentioned the text message in the notes she made at the time nor her statement about the incident, because she did not recall it. In the result there was no dispute that she had sent a text message, although the respondent said that she said in it that she wanted to see him again. That she did not include reference to it does not alter the findings of the Tribunal about her credit.
122 The way in which the patient gave her evidence and her demeanour as observed by the Tribunal leads it to accept her as a witness of truth. She freely conceded that she could have left at any time and said that she had subsequently been told by her school counsellor that she ought to have spoken up for herself.
123 The Tribunal is fortified in this finding by the fact that she made contemporaneous notes of the events of both the 12th and 27th February which accorded with her evidence and which appear to the Tribunal to be in her own words. The observations of the patient's school friend and school counsellor that she was upset lends support to her version of events.
124 There is no doubt that the impression conveyed by the respondent's statements was that it was the patient who was the instigator of the physical contact between them. The respondent said, in those statements, that he was ashamed, shocked and felt uncomfortable during the encounter.
125 There was little dispute between the respondent and the patient about the surrounding events of the 27th February. The respondent denied any inappropriate conduct and implied that it was the patient who had made advances to him.
126 The respondent's statement and evidence was that the patient was making advances to him. He said she had said she liked " men ". The patient denied that she had made any advances to him and that she had spoken of liking men. Her mother said in her statement [66] "(The Patient) is very shy. She isn't really used to boyfriends or men" . She added that after the respondent had dropped the patient home on 27th February, she noticed that the patient was quiet and did not say very much while the respondent was in the house. After he left, the patient told her mother that she did not want to see the respondent again because she did not " like his attitude ".
127 The Tribunal does not accept the respondent's account to the extent that it is contradicted by the patient. The respondent's evidence was less confident about events than would appear from his statements. For example, although in his statements he had denied that he lifted the patient's shirt, in his evidence he said that he did not recall asking the patient to lift her shirt and said that he would not necessarily remember lifting her shirt up. [67] He agreed that on 27th February 2005 when he was sitting on the bed he did ask the patient to come closer because, he said that he could not hear what she was saying. He said that it was " possible " that the patient did not deliberately push her head into his genitals as he had written in his statements and said in explanation of the part in his statement where he wrote: " I felt her push onto my genitals " he said: " Well, a push is a force ". [68] The respondent denied that he intended to imply that this conduct alarmed him because it was sexual behaviour and said: " I wouldn't put the connotation that is sexual behaviour. …it was certainly a possibility, but it may have been by accident" . [69]
Respondent's attitude to the events of February 2005
128 The respondent said that he could not remember what he was thinking during the incidents in February 2005. [70] He could not say whether he thought it was inappropriate to give the patient a massage in his bedroom [71] even though, in his statement, he referred to being shocked and ashamed.
129 He said that as a medical practitioner, he did not foresee any problems arising from offering to give the patient driving lessons nor from inviting her to his house and into his bedroom. He saw no reason why he should not give her a massage in his own home. He did not consider his actions to be inappropriate or unwise.
130 The respondent said in his statements and maintained during the hearing, that he suffered from a bad back which had become particularly painful after he used the exercise machine in his bedroom, so painful that he needed to sit on the bed to rest. He did not tell the patient that his back was sore. He said that the pain in his back stopped him from continuing the massage. [72] During his evidence, he said that he stoped because he felt uncomfortable at the circumstances and that it was a combination of that feeling and the pain which caused him to stop. He said that other than during the massage, he saw nothing inappropriate in his contact with the patient during the 27th February 2005. [73]
131 Speaking from the perspective of an adult, the respondent said that he did not believe that he had done anything wrong in relation to the patient, however he said that " as events progressed " while he was massaging her, he started to think that the situation was wrong. That sense did not cause him to stop massaging her. He said that he understood his responsibilities towards the patient was to " try and conform to the laws of the land " and, in that regard did not believe he had done anything wrong.
132 The respondent said that he had only once offered another young patient a driving lesson and that apparently was to the patient's brother some years before.
133 The respondent said that before February 2005 he had not received " significant training " [74] during his medical degree and during his study and training for the General Practitioner fellowship exam over three years. So far as he could recall, that training was limited to doctors not having sex with patients.
134 When asked about whether he understood in 2005 that the doctor/patient relationship depended on the patient having absolute confidence in the doctor, the respondent said:
"I can only guess at what I was thinking at that stage two years ago. But I believe I would have had some thoughts along those lines." [75]
135 The respondent added that in 2005 he was not aware of maintaining a proper boundary from his patients, however, he said that he thought that the patient should have " some trust " in the doctor. The respondent could not remember whether in 2005 he understood that a doctor occupied a unique position in relation to physical and emotional proximity with the patient. He did not believe that he was aware that, as a doctor, it was inappropriate to invite the patient into his bedroom. [76]
136 The respondent said that there were only four consultations in which he had diagnosed the patient to be depressed and referred to the diagnoses as being " depressive episodes " [77] which he said were " mild and transient " due to " fleeting personal circumstances at home ". He did not believe that she suffered from a major depressive illness.
137 It was only when the respondent was taken to his clinical notes for this patient that he conceded that, in fact, he had diagnosed depression in this patient many more times than the four he mentioned in his evidence. He said that he did not take these diagnoses into account even though he first made that diagnosis when the patient was eleven years old. [78] He said she was very much a " normal person " who had a difficult family life. He did not regard her as being particularly vulnerable. [79]
138 The effect of the respondent's evidence is that the only rule governing the conduct of a doctor and a patient of which he was aware and could remember from 2005, was that he should not have sex with a patient. The respondent said that after ten years in general practice that he had a " very poor understanding " of the doctor/patient relationship. [80] The respondent could not recall reading any article or literature about this subject in his ten years of general practice.
139 The respondent was asked whether in 2005 he believed that there was a particular obligation on him when dealing with minors. He said:
"I think at that stage I would have probably understood that people under the age of 18 and children are probably more vulnerable than adults. I think that's what I may have been thinking at that time." [81]
140 In relation to this issue, as he did concerning his treatment of patients in relation to the first complaint, the respondent claimed to have no recollection of what he knew or what he thought in 2005. It may be understandable for him to have some difficulty in remembering events from 1998 to 2000, but the Tribunal finds it incredible that the respondent continued to assert that he could not recall what he was thinking or what he knew as part of his work as a medical practitioner in 2005, just two years before he gave evidence. There was no indication of a memory failure when he prepared his statement about this incident in December 2005. The respondent was able to recall details sufficiently to deny the patient's account and to proffer his version of events.
141 In expressing a view about the respondent's recollection, the Tribunal is mindful that, from 2000, the respondent said that he had been consulting his professional indemnity insurers about the first complaint, and had to recall the incidents to prepare his response to the second complaint in 2005.
142 The respondent could not recall when he became aware that a complaint had been made about his conduct, but knew very shortly after 27th February 2005 that the patient had concerns because her mother spoke to him after hearing from the patient's school. [82] Her mother said to him, " what happened between you and [Patient P]? She feels intimidated and doesn't want to go driving with you to see you any more ". According to the mother's statement, the respondent replied: " Nothing happened. I didn't do anything wrong. I didn't assault her or do anything against her will. …I didn't do anything to harm her ."
143 The Tribunal finds that from a short time after the driving lesson on 27th February 2005, the respondent knew that the patient had made a complaint about the incident. The Tribunal does not accept the respondent's claims to having no memory of when he became aware that the patient had expressed concerns about the events of the 27th February 2005.
144 The respondent was asked what he knew of the proper boundaries between a doctor and patient in 2005. He said that he understood the " big taboo " [83] was that a doctor could not have sex with a patient (which he said included sexually intimate touching of a patient). He referred to other activities which he understood were inappropriate like accepting gifts from patients and engaging in financial dealings with patients.
145 The respondent said that after becoming aware that the patient had concerns, he contacted his professional insurers and said that he received advice from them. However, he agreed that he had " done very little " [84] in the way of research on the topic of the doctor/patient relationship until he received notification of a formal complaint. The respondent said that after 2005 he had done research and looked out for things in his practice which might cause a blurring of the proper boundaries with patients. He said that he kept the consultations to strictly medical matters and did not discuss personal matters.
146 Despite this, in early 2007, the respondent gave a party at his house to which he invited about a half dozen patients as guests. He said that at the time he invited them he did not believe that it was inappropriate from the perspective of the doctor/patient relationship and sought no advice before inviting them. He said that on reflection he believed that he should not have invited them to his home because he thinks he left himself open to a baseless complaint about him. [85]
147 In explanation, the respondent said that although he had done some research into the issue of the doctor/patient relationship, it was " insignificant " [86] after 2005. He said that the majority of his research into this area occurred in the " last few weeks " [87] before the Tribunal hearing. He said that most of his understanding through reading and research of what he had done wrong in relation to this patient occurred in early 2007.
148 The respondent said that he now has a better understanding of appropriate doctor/patient boundaries and conduct. He said that he had conducted a study of the literature on this issue. He had accessed information from the internet, from the Medical Journal of Australia and from the Medical Board web site, the AMA web site and " Australian Doctor ". He could not recall having read similar articles in the years before early 2005. The respondent did most of this reading in late January or February 2007, before the Tribunal hearing.
149 The respondent said that he now understands that patients must have complete trust in the doctor and that the position of doctor involves a relationship in which the doctor is perceived to be a powerful figure. [88] He conceded that he had acted inappropriately in offering the patient driving lessons and in inviting the patient to his house. He agreed that in doing so he had breached the proper boundaries between doctor and patient because he said that it could lead to an allegation against him. [89]
150 The respondent said that the events of February 2005 did not cause him to do any research or seek any advice to try to understand how the situation developed with the patient and to try to prevent it happening again. [90] He was not aware of the guidelines for maintaining proper doctor/patient boundaries until he did his research in late January or February 2007. He explained this inaction by saying that he was: " unaware of the gravity of the problem. I had no idea all this was going to transpire ". [91]
151 The Tribunal does not accept the respondent's claim that he was entirely unaware that his conduct in relation to patient P fell entirely outside the proper doctor/patient relationship. The Tribunal is satisfied that the respondent embarked on a deliberate course to place the patient in a position of vulnerability with him, perhaps as a prelude to a sexual advance. Even though the encounter did not reach that stage, he acted entirely inappropriately in inviting her to his house and into his bedroom where he offered to massage her back. In the Tribunal's view, the respondent deliberately exploited the patient's trust in him and her expectation that he would act in an ethical way towards her. Through his treatment of her family he had gained entrée to this child's personal life. The Tribunal finds the respondent's conduct towards this patient completely reprehensible.
Peer Review
152 The respondent's conduct was considered by Dr Ian Chung, a general practitioner. [92] Dr Chung considered that, taken in isolation, the actions of the respondent in taking the patient for driving lessons, inviting the patient to his home and inviting her into his bedroom and giving her a massage were not in breach of any rule or regulation governing proper practice of medicine, and, as such would not be seen as seriously unacceptable by other general practitioners.
153 All of those actions would be considered " irregular " in the absence of a chaperone and given the time taken in those activities, would be regarded with suspicion, put both the patient and doctor at risk; the patient of an improper approach by the doctor and the doctor of an unfounded allegation and would attract a moderate degree of criticism from Dr Chung and his colleagues. Inviting the patient into the house and then the bedroom would be regarded as highly suspicious by other general practitioners.
154 However, Dr Chung said that the sequence of events described by the patient (and largely conceded by the respondent) which culminated in him giving her a massage in his bedroom would be considered highly irregular and unacceptable conduct of which Dr Chung was severely critical. He said that he and his colleagues would regard it as improper conduct which would attract severe and extreme criticism. Dr Chung maintained that opinion whether or not the massage had been instigated by the patient or by the respondent.
155 Had the respondent felt that the patient was acting provocatively and had made him feel uncomfortable, Dr Chung said that the respondent's duty was to immediately cease the activity, remove the patient from the situation and counsel her in the presence of a third party. To fail to do this and to maintain the situation by offering the patient dinner and watching a television programme was a failure to act appropriately and attracted his severe criticism. Dr Chung expressed a similar opinion that, if the patient had acted provocatively in her bedroom (by showing the respondent her underwear) and in sending a text message, the respondent had failed to act appropriately.
156 Dr Chung said that, if the patient's version of events was accepted and the incident had involved improper intimate contact initiated by the respondent, he would regard the respondent's conduct as being totally unacceptable and in direct contravention of all ethical moral and legal standards and obligations of medical practice. In coming to that conclusion, Dr Chung said that he took into account that the respondent was a mature man, had developed a position of trust and friendship within the patient's family and treated her and her family all of which would heighten the power imbalance between them. Dr Chung said that he and his colleagues would view the respondent's conduct with extreme and very severe disapproval.
157 If the respondent's version of events was accepted and it was found that the respondent had not initiated improper intimate contact, he would regard the respondent as creating circumstances which led to the contact and behaving in a way which allowed the improper contact likely to occur. In Dr Chung's opinion, this conduct demonstrated lack of competence and knowledge. The respondent's failure to respond to the contact with the patient by removing her from his bedroom and taking her home showed a lack of skill and judgment and a lack of ethical conduct. In all, this conduct would incur Dr Chung's severe disapproval and the severe disapproval of his peers.
158 Dr Chung said that if a finding was made that the events occurred as the patient alleged and that the respondent initiated the massage, the conduct would incur the extreme and very severe disapproval of Dr Chung and other general practitioners.
159 The respondent did no reading nor sought any advice on being made aware of the complaint, because he did not regard his conduct as being very serious. He did not bother to read what was apparently readily available on the internet before coming to the hearing. It was only in the face of the impending Tribunal hearing that he did any reading on the topic.
160 It is a matter of grave concern for the Tribunal that the respondent was prepared to give this incident such scant attention.
161 The Tribunal finds that the respondent's efforts to educate himself about the proper doctor/patient relationship were nothing more than paying lip-service to the impending Tribunal hearing.
162 Other than doing reading, the respondent has not sought any advice or guidance from another practitioner to help him avoid a similar situation arising in the future. The Tribunal finds that he has no insight into his conduct nor any interest in understanding how he came to breach the doctor patient trust.
163 The respondent's conduct is particularly reprehensible when considered in the context that the patient was a seventeen year-old schoolgirl who had been a patient since she was very young and who he had diagnosed with depression a few weeks before the respondent invited her into his house. That the respondent did not regard her as being particularly vulnerable reflects on his insight.
Discussion
Complaint 1
164 The respondent prescribed vast quantities of drugs of addiction for his patients with no treatment plan (other than to administer drugs), no attempt to refer the patient to a pain clinic and scant referrals to a specialist to do other than comment on the medication regime. The respondent claimed that he would not have prescribed or administered the drugs unless he believed that the patient had a medical need for them. In many cases, the respondent administered Pethidine up to four times each day but on no occasion referred those patients to hospital or other facilities where pain of that magnitude could be treated.
165 The respondent frequently administered an Intramuscular opioid to a patient for whom he also prescribed an oral narcotic analgesic without considering whether the amount of or combination of drugs could lead to an overdose.
166 This prescribing behaviour continued up to the point when the respondent became aware of the investigation by the PSB and in some cases, to within days of the Section 66 Inquiry .
167 The respondent was obviously aware that he needed to obtain an authority to prescribe drugs of addiction and, in some circumstances, received authorities to prescribe. When he did have an authority, he prescribed drugs of addiction which were not included in the authority. He administered drugs without an authority. The respondent could not explain why he chose to apply for an authority in some cases and not in others.
168 The respondent frequently referred to his lack of relevant knowledge to explain his behaviour. He has sought no assistance or education to prevent him prescribing in this way in the future. The respondent conceded in his written response that his conduct in prescribing was inappropriate and set out the ways in which his conduct was inadequate but, nowhere in his evidence, did he demonstrate an understanding of why he was so deficient. The respondent did not say what he has put in place which would better equip him to practice in the future. The Tribunal is not persuaded that he has an understanding of his identified deficiencies.
169 The respondent did not admit all of the particulars of the complaint. The Tribunal has no difficulty in finding that in relation to particular 2(c) he prescribed Physeptone for Patient A for a purpose not in accordance with recognised therapeutic standards. In his statement the respondent said that Physeptone was appropriate for treating pain. That may be, but the patient's notes and the respondent's evidence was that he prescribed Physeptone to assist the patient in drug withdrawal, not in treating pain. The respondent conceded in his evidence that he lacked the skill and knowledge to treat a patient in heroin withdrawal with that drug.
170 The respondent did not admit that in relation to patient B, he had prescribed Endone for a period in excess of two months without authority. The respondent said that there is no note in the patient records of a prescription for 23rd October 1999. The summary of prescriptions written by the respondent compiled by the applicant, show that the respondent did write a prescription for the 23rd October. That the patient notes do not record it, given the state of his records and his evidence that at times he did not make records at the time of the consultation, does not advance the issue. The Tribunal finds particular 2(c) proved.
171 This matter concerns sections 36 and 37 of the Medical Practice Act 1992 (the " Act ").
172 Those sections are in the following form:
S 36(1)"For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:..
S 37 "For the purposes of this Act, professional misconduct of a registered medical practitioner means unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register."
(a) Any conduct that demonstrates a lack of adequate knowledge, skill, judgement or care, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;
(b) Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations;
(c) Any other improper or unethical conduct relating to the practice or purported practice of medicine.
173 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.
174 The concession of the respondent that he is guilty of unprofessional conduct or professional misconduct is well made in the view of the Tribunal. The peer reviewers were severely critical of the respondent's conduct.
175 The Tribunal is satisfied that in relation to Complaint 1, the conduct complained of amounted to an abandonment by the respondent of the skill, judgment and care expected of a medical practitioner. It is misconduct of a very grave kind, exacerbated by the respondent's persistence in it over years before it was stopped by the investigation of the PSB.
176 The Tribunal is also satisfied that the respondent's conduct towards patient P was reprehensible in the extreme and amounted to him breaching the trust reposed in his as a medical practitioner. In the Tribunal's view, his conduct rightly earned the extreme and severe disapproval of his peers.
177 In relation to both complaints, the Tribunal is satisfied to the requisite standard [93] that the respondent is guilty of professional misconduct.
178 The jurisdiction of the Tribunal is a protective not punitive one. [94] 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.
"One element of deterrence is providing an assurance to the public that serious lapses in the conduct of …practitioners will not be passed over or lightly put aside, but will be appropriately dealt with" [95]
179 To give effect to the protective jurisdiction the Tribunal may make orders which operate in two ways; by preventing the practitioner from practising or by deterring him from repetition of the conduct. [96]
180 Time has passed since the respondent behaved in the way complained of in both complaints but in particular in relation to his prescribing. 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."
181 Lapse of time then may be relevant in determining whether the respondent has undergone a reformation of character or in whether the conduct complained of was an isolated or passing departure from proper professional standards. [97]
182 The passage of time and the evidence of the respondent as discussed in these reasons do not persuade the Tribunal that the respondent has reformed his character over the passing years nor could his conduct be seen as an isolated or passing departure from proper standards. In the time between the PSB investigation and the hearing, the respondent has done little, if anything, to address the conduct which brings him to this point. The Tribunal has no confidence that the respondent has equipped himself to prevent or avoid falling into similar behaviour in the future.
183 The Tribunal is satisfied that the only order which could give effect to its protective functions, to 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.
184 The Tribunal will order that the respondent not apply to be re-registered for a period of three years.
Orders
On the undertaking of the respondent, given by the respondent’s solicitor that the respondent will cease practicing medicine at 5.00 pm today, 26th April 2007 the Tribunal orders:
1 The respondent's name be removed from the Register of Medical Practitioners on 24th May 2007
2 The respondent not apply to be re-registered for a period of three years from the date of these orders.
3 The respondent pay the applicant's costs.
Endnotes
1 Annexure A to the Reasons for Determination
2 As defined in Section 4 of the Poisons and Therapeutic Goods Act 1966
3 Section 29 Poisons and Therapeutic Goods Act 1966
4 Clause 13 and Schedule 2 Medical Practice Regulation 1998
5 Clause 84 of Poisons and Therapeutic Goods Regulation 1994
6 Clauses 113 and 114 Poisons and Therapeutic Goods Regulation 1994
7 Clause 76(1) Poisons and Therapeutic Goods Regulation 1994
8 Section 192A Evidentiary Certificate, Exhibit A
9 Report John Lumby, Director PSB, Exhibit A tab 3
10 Pursuant to Section 66 of the Medical Practice Act
11 Findings of the Section 66 Inquiry, Exhibit A tab 2
12 Section 192A Evidentiary Certificate, Exhibit A
13 Exhibit A tab 10
14 Exhibit A tab 16
15 Exhibit A tab 19
16 Exhibit B tab F
17 transcript page 110
18 transcript page 118
19 transcript page 206 line 25
20 transcript page 209 ff
21 transcript page 177 line 45
22 transcript page 178 line 5
23 transcript page 186 line 10
24 transcript page 185 line 3 ff
25 transcript page 117 line 20
26 transcript page 116 line 46
27 transcript page 118 line 10
28 transcript page 138 line 14
29 transcript page 152 ff
30 transcript page 158 line 46
31 transcript page 166 line 24 ff
32 transcript page 143 line 25 ff
33 Patient F
34 transcript page 110 line 36
35 transcript page 120 line 39
36 transcript page 121 line 18
37 Patient E and G
38 Patient F
39 Statement of the Respondent (1.3.07), Exhibit 1
40 Statement of the Respondent, paragraphs 23-30
41 transcript page 140 line 52 ff
42 transcript 141 line 30
43 Exhibit C
44 transcript page 147 line 30
45 Exhibit C
46 transcript page 156 line 41
47 transcript page 158 line 6
48 transcript page 159 line 15
49 Exhibit D
50 transcript page 160 line 36
51 transcript page 173 line 10
52 Exhibit E
53 transcript page 190 line20 ff
54 transcript page 138 line 5
55 Exhibit 1
56 transcript page 163 line 45
57 transcript page 202 line 15
58 Exhibit A tab 5
59 transcript page 30 line 35
60 Exhibit A tab 19
61 Exhibit 1, 1st March 2007
62 transcript page 73 line 15
63 transcript page 25 line 50
64 transcript page 44 line 55
65 transcript page 47 line 36
66 Exhibit A tab 13
67 transcript page 84 line 38 ff
68 transcript page 87 line 15
69 transcript page 87 line 35
70 transcript page 56 line 16, page 57 line 4
71 transcript page 56 line 17
72 Statement, Exhibit 1, paragraph 121
73 transcript page 66 line 50
74 transcript page 65 line 50
75 transcript page 67 line 18
76 transcript page 79 line 19
77 transcript page 55 line 5
78 transcript page 80 line 55
79 transcript page 82 line 54
80 transcript page 69 line 36
81 transcript page 75 line 8
82 Exhibit A tab 13, paragraph 13
83 transcript page 70 line 15
84 transcript page 96 line 40
85 transcript page 93 line 32
86 transcript page 100 line 15
87 transcript page 69 line 2
88 transcript page 73 line 25 ff
89 transcript page 76 line 53
90 transcript page 95 line 15
91 transcript page 96 line 48
92 Exhibit A tab 20
93 Briginshaw v Briginshaw (1938) 60 CLR 336 . The Tribunal must be comfortably satisfied on the balance of probabilities but that 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".
94 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637D and F
95 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]
96 NSW Bar Association v Meakes [2006] NSWCA 340 at [114] per Basten JA
97 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637
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