Health Care Complaints Commission v Dr Bosnich
[2012] NSWMT 16
•03 July 2012
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Dr Bosnich [2012] NSWMT 16 Hearing dates: 25/6/2012-27/6/2012 Decision date: 03 July 2012 Before: Elkaim SC DCJ
Ms H Kiel
Dr H Pedersen
Dr G YeoDecision: See paragraph 70
Catchwords: Unsatisfactory conduct and misconduct, failures in prescription of drugs to the public and family members, unsatisfactory record keeping. Legislation Cited: Medical Practice Act 1992
Health Practitioner Regulation National Law (NSW)Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
HCCC v Dr Kalokerinos, unreported, Medical Tribunal, 9 May 2007
Lee v Health Care Complaints Commission [2012] NSWCA 80
NSW Bar Association v Meakes [2006] NSWCA 340Category: Principal judgment Parties: Health Care Complaints Commission (Complainant)
Dr Anthony Bosnich (Respondent)Representation: K Richardson (Complainant)
G Farmer SC (Respondent)
Health Care Complaints Commission (Complainant)
HWL Ebsworth (Respondent)
File Number(s): 40021/11 Publication restriction: Yes
Judgment
The Tribunal has heard two complaints brought by the Health Care Complaints Commission ("HCCC") against Dr Anthony Constantine Bosnich. The complaints can be found behind Tab 1 in Exhibit 1.
The following particulars of Complaint 1 were not pressed: 2(b), 3(c), 4(b) and 5. Particulars 1, 2(a), 3(a) and (b), 4(a), 6, 7 (except in respect of three patients), 8, 9 (except in relation to follow up evaluation), 11, 12 and 13 were admitted in their entirety. Particular 14 was denied.
The particulars of the complaints cover, in broad terms, the following areas of allegation: the inappropriate prescription of Human Growth Hormone ("HGH"), the inappropriate prescription of Pregnyl, Chlomid and Tamoxifen, the inappropriate prescription of Tertroxin and Benzodiazepines, self-treatment and the treatment of relatives, the treatment of patients without consultation and the failure to keep proper records, both generally and in relation to restricted substances.
With some exceptions the general period under complaint was from March 2005 to November 2007.
At the commencement of the hearing the Tribunal was informed that in the course of the last seven days Dr Bosnich had admitted that he had been guilty of professional misconduct as set out in Complaint 2.
The extent of the admissions, together with the particulars that were not pressed, left few factual matters in dispute.
In approaching those remaining factual matters the Tribunal was mindful that although the standard of proof is on the balance of probabilities that it should nevertheless apply the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 in resolving the remaining allegations against Dr Bosnich.
Dr Bosnich indicated that he did not wish there to be a separate hearing on consequential orders. The Tribunal proceeded in accordance with that request.
Background
Dr Bosnich was born in 1962. He graduated with a degree of MBBS from the University of Sydney in 1986. After completing his intern year and spending some months working in Goulburn, Dr Bosnich commenced at the Merrylands Medical Centre in 1989. He stayed in that area until 2000 when he moved to the Newtown Medical Centre. In 2003 he entered general practice at a medical centre in Broadway which he continued until about 2006. In 2004 Dr Bosnich also began work at the Pyrmont Harbour Medical Centre ("Pyrmont") where he remained until 2008.
The doctor's problems have stemmed from his interest (better described as an obsession) with fitness, in particular as achieved through sport, exercise and "fat" loss. Perhaps contrary to a simple interpretation of the word he describes this area as "antiageing".
Dr Bosnich commenced prescribing HGH when he was practising in Broadway and in Pyrmont. He continued to do so after he left the Broadway practice. At this stage he was also practising from his home in Mosman.
The majority of the prescriptions of HGH and other medications concerned with anti-aging were written in Pyrmont where the head of the practice, a Dr Schmuelly, was involved in similar, if not as extensive, prescribing practices.
Dr Bosnich created a website, entitled the "Sydney Antiageing Clinic" (Exhibit 1, Tab 38). He became known as the "anti-aging doctor". He thought that most of his clients came through the contacts he made at the gym.
In very broad terms he prescribed HGH in order to achieve fat loss. He prescribed Clomiphene Citrate, Tamoxifen and Pregnyl to body builders, in particular those that he thought had been using anabolic steroids. This was to counter the side effects of the steroids.
Dr Bosnich became very busy in his anti-aging activities to the extent that they ultimately constituted the bulk of his practice.
An investigation began in September 2007 into Dr Bosnich's prescription practices ultimately leading to a Section 66 (of the Medical Practice Act 1992) hearing. The Board suspended Dr Bosnich from practice for a period of eight weeks commencing on 4 April 2008.
The suspension was periodically renewed until 28 October 2008 when a Section 66AB hearing permitted Dr Bosnich to return to practice under certain conditions.
On 15 December 2008 Dr Bosnich commenced work at the Enmore Medical Practice working under the prescribed conditions. He has continued to do so until the present.
The complaints currently before the Tribunal were filed on 30 June 2011. No explanation has been forthcoming for the almost three year delay between the Section 66AB hearing and the filing of the complaint. Notably there is no evidence to suggest non-compliance with the conditions between December 2008 and the present day.
The hearing before the Tribunal
Both parties tendered a number of documents including items of detail and also reference or peer review. Some of the authors of the reports or statements were cross-examined.
Mr Martin Power was the pharmaceutical advisor for the Pharmaceutical Services Board (the "PSB"). He investigated the "procurement and supply of various restricted substances by Dr Anthony Bosnich from January 2006 to 17 September 2007." His report is in Exhibit 1 at Tab 5.
Although Mr Power's research was extensive and detailed his oral evidence was confined to the issues arising from Particular 14 of the first complaint. He identified the documents upon which his conclusions had been based and could see no inconsistency arising from the detail. The cross-examination centred on the involvement of Dr Schmuelly in the practice and the possibility that the missing records could equally apply to Dr Schmuelly as to Dr Bosnich.
Dr Shah was called on behalf of Dr Bosnich. His reference is behind Tab 12 in Exhibit A. It does not say very much. It makes no comment on Dr Bosnich's clinical practice. Dr Shah seemed at pains to dissociate himself from the detail that he had received from a conversation with one of his managers. The best that can be taken from Dr Shah's evidence, including his reference, is that he regards Dr Bosnich as an employee who is "a valued and integral part" of the Enmore practice.
Dr Nespolon, a general practitioner, prepared a peer review report on behalf of the HCCC (Exhibit 4, Tab 62). Very little challenge was made to his report. He did, however, agree that the doses of drug prescribed by Dr Bosnich were generally lower than the recommended doses and he had found no evidence of side effects from the inappropriate prescription. He also made the point that there was little available information from which conclusions about side effects could be drawn.
Professor Carter is an endocrinologist. His material is in Exhibit 4 commencing at Tab 56. His oral evidence took a surprising turn in this passage:
"Q. So, in relation to human growth hormone the investigator from the Commission asked you to confirm your view that in relation to the prescribing of HGH that your view was it was a significant departure from the standards reasonably expected from a practitioner of equivalent level of training experience, but it did not invite your strong criticism. Why were you why did you express the view that it did not invite your strong criticism in relation to human growth hormone?
A. Well, the main reason I didn't use those words was because I was provided with a sheet which outlined the likely consequences of what terms I used. My interpretation of the consequences, if I said this invites my strong criticism that that almost would have automatically, and this is paraphrasing, almost would have automatically meant that there would be deregistration. I was very happy to review the documents and provide a report and give a factual report, and just I didn't see it as my role to give an opinion that, and I know this probably wouldn't have been the case, but the way it was written it suggested strongly that it would be the case, that just by me using the words you've mentioned that that would almost certainly trigger off deregistration.
And I don't see it as my role to get involved in that sort of thing apart from presenting the facts, I'm very happy to present the facts and give my opinion about things, but I felt that it wasn't appropriate for me to well I felt uncomfortable even though I did think it was a major departure from appropriate standards. I didn't want people to say that I used the word strongly and therefore have someone say to me that that meant that they would need to deregister the doctor.
DEPUTY CHAIRPERSON: You may object to this question. Just let me ask the question and then
FARMER: Just so that the whole of this so far is completely new to us.
DEPUTY CHAIRPERSON: I appreciate that, that's why I am giving you the opportunity to object to the question.
Q. Professor, but is it your opinion that you demand strong criticism?
A. Yes, I think it is, that what went on justified strong criticism, and for a couple of reasons. One reason being if there really were growth hormone deficiency it's mandatory to go looking for the cause of growth hormone deficiency, and that means there has to be investigations made into the hypothalamus pituitary, and to find out if there not only is growth hormone deficiency but deficiency of other pituitary hormones, and that wasn't undertaken. And the other reason for criticism relates to the apparent lack of appropriate followup with respect to potential side effects." (T 83.5).
Professor Carter was particularly concerned about these two elements, or absences, in Dr Bosnich's practice:
(a) If there was a growth deficiency it was mandatory to look for it.
(b) There was an apparent lack of follow up of patients.
The above criticism perhaps misses the fundamental aspect of Dr Bosnich's practice, namely that he was not concerned with patients with a growth deficiency, rather he was interested in what growth hormone medication could do for patients without a growth deficiency.
Professor Carter's approach to the prescription of Pregnyl, Clomiphene and Tamoxifen was a little different to that he adopted in respect of the growth hormones. He was less critical of Dr Bosnich, classifying his approach as critical but not strongly critical. He explained that these drugs were very unusually given to males. Their effect was to block oestrogen and promote androgens. They were used to treat the effects of anabolic steroids but he said that side effects were unlikely, although not impossible, at the doses prescribed by Dr Bosnich.
Under cross-examination Professor Carter agreed, as is evident from his report, that his opinion was given in respect of both Dr Bosnich and Dr Schmuelly. Putting aside the number of patients involved, he thought that the conduct of Dr Schmuelly in prescribing growth hormones for growth deficiency without appropriate testing was worse than the prescription of the hormones for people without a growth deficiency in order to achieve fat loss.
Contrary to the description that had come from Dr Bosnich, Professor Carter described anti-aging as the slowing down of the aging process rather than the extension of life by achieving a fit and healthy body. He did, however, accept that advice on anti-aging would include a healthy lifestyle.
The brief reference to the reports of Dr Nespolon and Dr Carter should not be taken as any indication that the Tribunal has not considered and taken into account their detailed contents and particularly the extent of inappropriate conduct they reveal on Dr Bosnich's part.
Dr Diamond is a psychiatrist. He treated Dr Bosnich and provided a report dated 27 November 2011 (Exhibit A, Tab 8). The Tribunal was impressed with Dr Diamond. Both in his evidence and in his report he made no attempt to excuse or justify the actions of Dr Bosnich, nor did he suggest that the doctor was able to practise without restriction or risk to the public. In the Tribunal's view his acceptance and description of Dr Bosnich and his 'faults' were realistic and matched the impression that the Tribunal derived from seeing Dr Bosnich in the witness box. This was most reflected in Dr Bosnich's apparent naiveté in his belief of the benefits of growth hormones, his obsession with physical training and exercise and his lack of insight into the pitfalls of the nature of the practice that he was conducting.
Dr Diamond was cross-examined about his opinion that Dr Bosnich was a conflict avoidant, compliant individual. It was suggested to him that these traits were inconsistent with a person who knowingly broke the rules concerning the prescription of certain medication. Dr Diamond responded in this way:
"Q. Given your assessment of his personality and I accept the conditions you've put on it in terms of being a compliant individual and overly compliant; how does one explain the prescribing behaviour of Dr Bosnich which he has admitted in these proceedings amounts to professional misconduct; how do we explain that in terms of a compliant individual engageing in such non compliant behaviour?
A. Well there's a long answer to that question so perhaps I can lay it out carefully in stages.
Q. Certainly, certainly.
A. You're emphasising the compliance as an individual with the non compliance of the rules of prescribing but they really should be looked at a little more separately. If one looks at Dr Bosnich as an individual and I think I have outlined this in some detail in my report; his personal history is one of growing up in a family that was dominated by his father, by his father's aspirations, by his father's demands and those demands were sometimes put very assertively and sometimes with some force behind them. At the same time in his own development he was a boy who suffered undiagnosed serious asthmatic illness that could have been life threatening and he was physically quite frail. So he grew up in an environment with a powerful father with a very diminished sense of strength in himself. In his development he discovered, first of all his illness was treated, his asthma became better managed, his nasal polyps were treated, he didn't suffer from those respiratory problems and he took an interest in bodybuilding. So from an early age he asserted himself through bodybuilding but in terms of his confidence, in terms of his ability to stand up for himself in terms of being keen to be accepted by others, of being conflict avoidant; those were the features of his personality development that came from his home background.
There's another strand of information that is covered in my report that deals with his exposure to medicine and the limited way in which he has developed a medical career and a vision or an understanding of medical practice which has been largely formed by being subgroup of a more marginalised group at medical school, of having a year of internship where he wasn't really part of the peer group of interns at Canberra Hospital but he was more part of the nursing group in the emergency department; company of policemen, firemen; other people who came through the emergency department; that was his peer group in the formal hospital setting and thereafter he pretty much was left to his own devices to work out how to be a doctor and a lot of that role modelling or training of knowledge of medicine, not just straight medical knowledge but procedural knowledge and the knowledge of rules of prescribing, appropriateness of prescribing, the roles of doctors was largely self taught and he gathered that when he worked briefly in a general practice at Goulburn when he worked at the local mental hospital briefly and I think at the gaol he did some shifts there and then he worked in the Edelsten practice where he learnt about how to be a medical centre doctor.
So I'm saying all of this because when you talk about his non compliance with rules, medical rules of prescribing; they were not well developed, he wasn't very much aware of them to the extent of asking a drug rep about how to procure the growth hormone and how it could be prescribed and taking on face value the information he was given. So in that way he was not very well informed about his responsibility but quite happy to comply with very limited information about the appropriateness of prescribing that medication. So here you have somebody who is compliant, he does what he's told generally. He has a strong sense of identifying authority in the body of people around him and being obedient to those instructions but being quite capable of idiosyncratically and irresponsibly prescribing a substance like growth hormone on the basis of his personal interest in it and the knowledge and information he received from the drug company who supplied it who obviously had a vested interest and a medical colleague who was doing the same thing. So that's what my comments are really relating to, is the interplay between his compliance and his capacity to be so dramatically noncompliant with mainstream prescribing practice." (T101.35).
The Tribunal has included this lengthy passage because the possible inconsistency raised by Ms Richards, on behalf of the HCCC, had troubled the Tribunal.
Dr Bosnich was extensively cross-examined. Dr Diamond in his report of 27 November 2011 (Exhibit A, Tab 8) repeatedly refers to Dr Bosnich's naiveté. This trait was overwhelmingly evident through his cross-examination.
The Tribunal thinks it fair to observe that the effective cross-examination was prejudicial to Dr Bosnich's cause not by illustration of dishonesty but rather, almost to the contrary, by the revelation, through his frank answers, of the overwhelming naïveté described by Dr Diamond and demonstrated by the almost unbelievability of some of the doctor's answers.
The following matters deserve special mention:
(a) The anti-aging website is on its very face a statement of inconsistency. The term "antiageing" can perhaps be read as the advocation of healthy living. The web page is, however, adorned with the picture of a very muscular man. Dr Bosnich said this person was no more than the usual fit person one might encounter in a gymnasium. He said it was not a picture of a body builder. The Tribunal's impression is more consistent with a body builder.
(b) The statement on page 1 of the website that HGH was only prescribed to patients "who medically qualify" for such prescription was conceded by Dr Bosnich to be simply wrong. It was quite clear that Dr Bosnich ignored the requirements for prescription of the relevant drugs in favour of advancing his ideas about achieving extreme health and fitness.
(c) Dr Bosnich accepted that not one of his patients had a growth deficiency measured according to accepted standards. In other words, the whole of his practice, in relation to the prescription of HGH, was directed at persons who would not, in accepted therapeutic terms, be eligible for such prescription.
(d) Dr Bosnich agreed that he did not do any tests to check for growth deficiency because he simply was not prescribing for this condition.
(e) The main purpose of the prescription of the growth hormones was to decrease body fat by using fat for energy and supplementing diet and exercise regimes for the maintenance of muscle integrity. Once again, in other words, the legitimate reasons for the prescription of growth hormones were not present and, in fact, never a consideration.
(f) The apparent acceptance by Dr Bosnich that a patient reading the leaflet and attached consent form (for example in Exhibit 1 at Tab 44) would, without more, be equipped to give an informed consent to the use of HGH.
(g) Dr Bosnich said that his opinion at the time, based on information from Dr Schmuelly and drug companies, was that it was permissible to prescribe the relevant drugs "off label". This meant that there was no bar to prescription for other than permissible uses if the consent of the patient was obtained. This approach was palpably naïve. It is also, to some degree, inconsistent with the contents of paragraph 20 of Dr Bosnich's statement (Exhibit 1, Tab 46) where it is suggested that he informed patients that he could not prescribe growth hormones for body image purposes.
Notwithstanding the frankness referred to in the previous paragraph there were some notable instances that arose in cross-examination which raised concerns about Dr Bosnich's credit. These included:
(a) Dr Bosnich described the regime, or system, which he used to treat growth hormone patients. Essentially it included the following: on the first visit there would be a discussion about the use of the hormone. The patient would be sent home with a direction to read the material on the website. On the second visit Dr Bosnich would take blood and have a consent form signed. On the third visit he would discuss hormone levels with the patient and explain how best to use the treatment over an eight week period. Dr Bosnich was carefully taken through a number of the patient records that appear in Exhibit 6 and time and again asked to concede, and he did, that the above regime was never applied. Dr Bosnich's response was that the worst of the records had been produced. The difficulty with this answer is two-fold. Firstly, the records in Exhibit 6 are numerous and even if there were other records those produced would still provide markedly contrasting evidence to the doctor's oral evidence. Secondly, no 'better' records were tendered by Dr Bosnich.
(b) Despite Dr Bosnich's evidence that he carefully assessed each of his patients there is an overwhelming impression of him being available to users of anabolic steroids of providing "a one stop shop" to meet their demands. He did not provide anabolic steroids. He did, however, quite clearly provide the patients with the drugs they sought.
(c) Tab 111 in Exhibit 6 includes the clinical notes in respect of Dr Bosnich's treatment of a family member. There was long term treatment for depression as well as the prescription of growth hormones. Dr Bosnich accepted that his treatment of the family member, in particular the persistent prescription of antidepressants, was inappropriate.
(d) Tabs 127 and 128 in Exhibit 6 are the clinical notes for Patient P and Patient Q respectively. These brothers came from South Australia to obtain the services of Dr Bosnich. Patently they saw him because he was known to meet demands of the type that they made. They both sought growth hormone treatment and it was provided without more. In addition, Dr Bosnich gave a third party twenty vials of the growth hormone to be given to the Patient P and Patient Q (ten each) on the basis of a request from the third party and confirmed by only a telephone call with the brothers. Dr Bosnich agreed that the third party (probably a member of a 'bikie' gang) left his surgery carrying some $6,600 worth of growth hormone. (The third party also had ten vials for himself.)
(e) Tab 119 in Exhibit 6 contains the clinical notes for a female patient who constantly sought Temazepam tablets ("sleeping pills") from Dr Bosnich. He said he had inherited this patient from Dr Schmuelly and he continued to provide her with the medication, notwithstanding the obvious signs of addiction, because he effectively knew no better. This was a product of the limited mentoring, and perhaps even negative mentoring, that he had received in his history as a practising doctor. There is some support for this assessment in the evidence of Dr Diamond but it ignores the handwritten notes of the other doctors who were simultaneously seeing the patient and also prescribing Temazepam. In other words, not only did Dr Bosnich not concern himself with addressing the addiction but he seems to have ignored the receipt of medication from other doctors in addition to the prescriptions that he was writing.
(f) A comparison between Dr Bosnich's witness statements and his oral evidence suggests an initial attempt to minimise the extent of his anti-aging practice compared to his general practice. It seems clear that at its height, Dr Bosnich's practice was dominated by his 'fitness' clients.
Notwithstanding the above observations on the doctor's credit it is worth noting that the HCCC made no submission of outright dishonesty, preferring instead to use terms such as "downplayed" or "minimised".
Outstanding particulars in Complaint One
The outstanding matters under Particular 7 of Complaint 1 first of all concern the prescription of Benzodiazepine medication to Patient D. Dr Bosnich's response is that the medication was prescribed for anxiety. The Tribunal is of the view that a mere description of anxiety as the basis for the prescription of this drug is not an appropriate record of indications for the medication. Accordingly this allegation is found to be proved. Secondly, in respect of Patient ZE the Tribunal is again satisfied that the notes do not properly record appropriate indications for the prescription. In relation to Patient ZF the Tribunal notes that there does not appear to be a prescription of Temazepam on 21 August 2007 (in the notes at Tab 119 of Exhibit 6). Accordingly there is no evidence to substantiate the allegation in respect of a prescription on that date. Having regard to the admissions in respect of this patient generally this finding is of virtually no significance.
Turning to Particular 14, Dr Bosnich essentially put the HCCC to proof that there was a failure to record details of the history of 199 vials of HGH and 49 packs of HGC. As to the former, the Tribunal is of the view that the contents of paragraph 13 of Mr Power's statement (Exhibit 1, Tab 5), adequately provides the necessary proof, at the necessary standard, in respect of the 199 vials. The lack of accounting for 49 packs of HCG (Human Growth Gonadotrophin) is similarly established by paragraph 19 of Mr Power's statement.
The Tribunal notes that both the HCCC and Dr Bosnich submitted that the Tribunal's findings in respect of the outstanding elements of Particular 7 and the finding on Particular 14 would not influence the orders they would suggest to be appropriate.
Having regard to the admissions, and in any event on the basis of the evidence, the Tribunal is satisfied that Dr Bosnich is guilty of unsatisfactory professional conduct within the meaning of Section 139B of the National Law and is guilty of professional misconduct within the meaning of Section 139E. Dr Bosnich did not submit that any other findings would be more appropriate.
Orders
As a general and introductory statement, the Tribunal is aware that any orders made should not be punitive; they should be protective. In addition, the Tribunal recognises that limits must be placed on references to orders made in other matters, in accordance with Lee v Health Care Complaints Commission [2012] NSWCA 80.
The primary case put by the HCCC was for deregistration. Its secondary position was that if Dr Bosnich be allowed to continue to practise it should be attended by a number of conditions. These conditions were an extension of the conditions under which Dr Bosnich is presently registered. In addition the HCCC submitted that Dr Bosnich should be reprimanded and fined.
Dr Bosnich's submission was that he should be entitled to continue to practise on the same conditions as currently exist. A reprimand was not opposed. A fine was resisted.
The Tribunal has been very troubled by certain aspects of Dr Bosnich's evidence, in particular those that have given rise to doubts about his credit. The Tribunal is also mindful that Dr Bosnich's activities were not isolated but continued over an extended period.
The Commission submitted that Dr Bosnich had effectively abdicated his role as a general practitioner. This was evidenced by his deficient note taking, his lack of proper investigation of his patients, his experimentation, his lack of follow up (bearing in mind the nature of the treatment he was dispensing) and perhaps most importantly, by his preparedness to assume the role of a "one stop shop" providing the needs of the fitness and body building community without due regard, if any regard, to the proper medical implications of his conduct.
The Tribunal thinks there is considerable force in the Commission's submission and sees the period of complaint as a period in which Dr Bosnich effectively did not perform as a general practitioner but rather, as described by Dr Diamond, as a personal trainer with medical knowledge. The condemning feature of this practice is that he made use of his rights as a general practitioner to improperly provide inappropriate medication and treatment to his clients.
An element in Dr Bosnich's favour is that his abdication was open and not furtive. His website was on the world wide web and he made no secret of his availability. This is inconsistent with knowingly inappropriate conduct. It is precisely consistent with Dr Diamond's opinion of his naivete.
The grounds for deregistration on the basis of Dr Bosnich's actions are strong but would have been significantly stronger had these proceedings shortly followed the Section 66AB decision.
The Tribunal is of the view that it may take into account the delay, whatever the cause, between October 2008 and the filing of the complaint in 2011.
Dr Bosnich has been allowed to practise in excess of three years under certain conditions. He has done so without evidence of any breach. In addition, his manner of practise, although the Tribunal gives limited weight to this evidence, was endorsed by Dr Shah. More importantly the Tribunal is impressed by the report of Dr Hiley dated 19 January 2002 (Exhibit A, Tab 10). Dr Hiley's opinion to the effect that Dr Bosnich should be able to practise without conditions was not pressed. However, the balance of the report was admitted without objection and Dr Hiley was not required for cross-examination. Her following conclusion is significant:
"I have no doubt that Dr Bosnich poses no danger to the public in his role as a GP. I would be happy to continue supervising him in the future and, providing he continue with his medical education." (Exhibit A, Tab 10).
In addition to Dr Hiley's report reference is made to her Supervision Reports. These can be found in Exhibit A behind Tabs 5 and 7. For example, in July 2009 Dr Hiley described Dr Bosnich's professional performance as "very good. No concerns identified." In May 2011 Dr Hiley said Dr Bosnich's professional performance was "in keeping with his usual professional approach". In HCCC v Dr Kalokerinos, unreported, Medical Tribunal, 9 May 2007 the Tribunal dealt with the passing of time, noting that a respondent may establish that he has become a "changed person" since the conduct complained of.
The Tribunal is of the view that the unchallenged views of Dr Hiley, together with the absence of any suggestion of any inappropriate practice since October 2008, justify a conclusion that Dr Bosnich, if not changed, is at least reformed to the degree of understanding his obligations and being capable of practising according to the standards of a general practitioner.
The decision of the New South Wales Court of Appeal in NSW Bar Association v Meakes [2006] NSWCA 340 also provides some support for the taking into account of time which has passed between the offending conduct and a hearing (see paragraph 93).
The Tribunal has also taken into account that there is no evidence of any detriment having been suffered by any of the patients seen by Dr Bosnich at the Pyrmont and Mosman practices. This fact is of course significantly tempered by the inadequacy of the notes and the absence of appropriate follow up.
In addition, the Tribunal has noted the views of Professor Carter concerning the dosage of medication prescribed by Dr Bosnich.
The views of Dr Hiley together with Dr Bosnich's continued practise in accordance with his conditions, and without complaint, despite annual reviews, has led the Tribunal to the conclusion that it would not be appropriate to deregister Dr Bosnich. The Tribunal is of the view that the imposition of conditions would meet the necessary requirements for the protection of the public. In addition, the Tribunal has taken into account the delay in the bringing of these proceedings, during which time Dr Bosnich has practised according to the conditions that have been imposed upon him.
Returning to the Commission's submission that deregistration is called upon because of Dr Bosnich's "abdication" of his role as a GP, but still taking advantage of his prescription entitlements, the Tribunal is satisfied that since the imposition of conditions, abdication is no longer a fair description of Dr Bosnich's practice. He has demonstrated, albeit under supervision, his capacity over the last three years to act appropriately as a general practitioner to the benefit of his patients.
In relation to deterrence the Tribunal intends to fine Dr Bosnich but also notes that he has already undergone a period of suspension from 4 April to 28 October 2008.
It is also important to recall Dr Bosnich's co-operation with the investigation into his practice and his effectively full admission of the allegations made against him.
The Tribunal thus having decided that deregistration is not an appropriate course it was the secondary position of the HCCC, and the primary position of Dr Bosnich, that if Dr Bosnich be allowed to continue to practise that it should be on certain conditions. This accords with the opinion of the Tribunal.
Proposed orders and conditions were put forward by the HCCC. The Tribunal is of the view that these orders and conditions are appropriate to achieve the intended protective result. There was general agreement to the orders and conditions by Dr Bosnich. The areas he contested are identified and discussed in the following paragraphs.
Dr Bosnich submitted that a fine should not be imposed. It was said that such an order should only be imposed where there was misconduct that involved the pursuit of a financial advantage. The Tribunal accepts that Dr Bosnich's activities were not carried on with the intent of financial advantage. However, he did tell Dr Diamond that he was able to earn a fulltime income although he was working part-time, and the charges levied by him ($800) for a course of treatment are not insubstantial. In addition, the Tribunal finds that a deterrent factor should be included in the orders. The pursuit of fitness through body building and gymnasiums is very widespread in the community and it is important that doctors are made acutely aware of the inappropriateness of meeting the needs of the participants in these activities. The Tribunal is of the view that a fine of $10,000 should be imposed, payable within 90 days of these orders.
In relation to the conditions Dr Bosnich submitted that the substances which he is not permitted to prescribe should not include Anastrozole or Tamoxifen Citrate because these drugs were regularly prescribed to sufferers of breast cancer. The Tribunal is of the view that these drugs should be included. If a particular patient requires these medications Dr Bosnich should be able to refer the patient to another doctor in his practice for the prescription. In any event, it is likely that patients requiring the medications will be under the care of a specialist who is able to issue the prescriptions.
Dr Bosnich submitted that the condition in relation to the prescription of certain drugs should not be a "critical compliance condition" because this would involve immediate cancellation of his practising certificate. Having regard to the inappropriate prescription of drugs over a long period of time the Tribunal is of the view that the condition should be a critical condition. It is noted that any breach of the condition will not result in an automatic suspension but rather will see Dr Bosnich referred to a Medical Tribunal before which he would have the opportunity to put forward any circumstances that may have justified the breach of the condition.
The next area of contention concerned whether or not Dr Bosnich should be required to work only in a group practice with one other practitioner always on site. The matter is of some significance to Dr Bosnich because in his present circumstances Dr Hiley is the only other doctor available and he has established a good working relationship with her. Another doctor who had previously worked in the practice has unfortunately passed away. Were the proposed condition to be applied it might jeopardise Dr Bosnich's capacity to work under the supervision of Dr Hiley.
The Tribunal's view is as follows: Dr Bosnich should be given some time to find a group practice, or for his current work place to become a group practice, provided the current beneficial supervision of Dr Hiley remains in place. This view will be reflected in Condition 3. It is to be observed that the proviso in Condition 3 does not affect the application of Condition 4.
Final Orders
The Tribunal makes the following orders:
(1) The Practitioner is reprimanded.
(2) The Practitioner is fined $10,000.00. Payment is to be made to the Medical Council of NSW within 90 days of the date of these orders.
(3) The Practitioner is subject to conditions on his registration as set out below under the heading Practice Conditions.
(4) The conditions may be reviewed by the Medical Council of NSW under Part 8 of Division 8 of the Health Practitioner RegulationNational Law (NSW). The Medical Council is the appropriate review body for those purposes. However, sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place is anywhere in Australia other than in New South Wales, so that a review of the conditions may be conducted by the Medical Board of Australia.
(5) The practitioner is to pay the complainant's costs in the proceedings.
Practice Conditions
(1)
(a) Not to possess, administer, prescribe or supply the following substances (or any pharmacological equivalent of these substances):
- anastrozole
- clomiphene citrate
- human chorionic gonadotrophin
- tamoxifen citrate
- somatropin (human growth hormone)
- anabolic/androgenic steroids
The Tribunal orders that contravention of Condition 1(a) will result in the practitioner's registration being cancelled and it is, therefore, a critical compliance condition.
(b) Any prescribing of benzodiazepines by Dr Bosnich must be in accordance with the relevant Guidelines endorsed by the Royal Australian College of General Practitioners published December 2000. ( listid="80" listlevel="2" liststring="(c)" listvalue="3">(c) Any future change in Dr Bosnich's authority must be in accordance with the Council's protocol. This must include consultation with the Council prior to the submission of any variation application to the Pharmaceutical Services Branch.
(2) To nominate a supervisor to be approved by the Council to monitor and review Dr Bosnich's clinical practice and compliance with Practice Conditions in accordance with Level 2 Supervision as contained in the Council's Guidelines for Supervision. The supervisor is to be provided with a copy of the Council's Policy and a copy of the Medical Tribunal Reasons for Decision. Dr Bosnich is to be responsible for all costs associated with the supervision arrangement. Dr Bosnich must also ensure:
(a) He meets with the supervisor on a fortnightly basis for at least one hour, the first meeting to occur within one week of being advised by the Council that his nominated supervisor has been approved.
(b) At each meeting, he and the supervisor address the concerns identified in the Medical Tribunal Decision including case reviews, medical record reviews, pathology result reviews, clinical outcomes, patient follow up, communication skills, assertiveness skills, overall patient care and management, substance abuse, and appropriate prescribing practices.
(c) At each meeting the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council.
(d) The supervisor forwards to the Council the Supervision Report in a format prescribed or approved by the Council on a monthly basis or at a frequency determined by the Council.
(e) The supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, compliance with other conditions of registration, clinical performance and health or if the supervisor relationship ceases.
(f) In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship.
(3) To practise only in a Council approved group practice (group is defined as at least 3 practitioners), with one other practitioner always on site, except that for a period of six months from the date of these orders Dr Bosnich may continue to practise at the Enmore Medical Practice (134-146 Enmore Road, Enmore) provided he remains under the supervision of Dr Davina Hiley.
(4) To practise only when another registered medical practitioner who is aware of these Practice Conditions is also on site and not to engage in medical practice at any other time.
(5) To provide the Council with a written report on a three monthly basis setting out brief details of any activities Dr Bosnich has undertaken in relation to his continuing professional development and maintenance of vocational competence during the previous three months
(6) To attend a Review Interview at the Council as directed by the Council.
(7) To authorise the Council to notify current and future employer/s of any issues arising in relation to compliance with these Conditions.
(8) To authorise and consent to any exchange of information between the Council and Medicare Australia or the Pharmaceutical Services Unit of the Ministry of Health for the purpose of monitoring compliance with these conditions.
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Decision last updated: 05 July 2012
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