Health Care Complaints Commission v Dr Gopal Chandra Mukherjee - [2010] NSWMT 11

No judgment structure available for this case.

New South Wales

Medical Tribunal

CITATION: Health Care Complaints Commission v Dr Gopal Chandra Mukherjee [2010] NSWMT 11

TRIBUNAL: Medical Tribunal

PARTIES: Health Care Complaints Commission (Complainant)
Dr Gopal Chandra Mukherjee (Respondent)

FILE NUMBER(S): 40021 of 2008; 40025 of 2009

CORAM: Backman J - de Carvalho, Dr V - Glass, Assoc Prof A - Yeo, Dr G

CATCHWORDS: Deregistration

LEGISLATION CITED: Medical Practice Act 1992
Poisons and Therapeutic Goods Act 1966
Poisons and Therapeutic Goods Regulation 2002

CASES CITED: Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362;
In Re Dr Ian McHue [2007] NSWMT 11;
Spicer v New South Wales Medical Board & Ors (unreported, NSW Court of Appeal, CA 3 of 1981, 19 February 1981)

DATES OF HEARING: 8, 9, 10 February and 9 April 2010
Written submissions: 16 and 19 April 2010

DATE OF JUDGMENT: 7 October 2010

LEGAL REPRESENTATIVES: COMPLAINANT:
Mr B O'Donnell of counsel
Health Care Complaints Commission
(Mr S Cox)
RESPONDENT:
Mr M Ainsworth of counsel
Unsworth Legal
(Mr A Davey)

ORDERS: Deregistration; not to apply for re-registration for 2 years from the date of the Decision.

JUDGMENT:

MEDICAL TRIBUNAL OF NEW SOUTH WALES

DEPUTY CHAIRPERSON: Backman J

Members: Dr V de Carvalho

Dr A Glass

Dr G Yeo

Thursday, 7 October 2010

Matter No MT 40021 of 2008

Health Care Complaints Commission v Dr Gopal Chandra Mukherjee

Complaint under the Medical Practice Act 1992

Matter No MT 40025 of 2009

Health Care Complaints Commission v Dr Gopal Chandra Mukherjee

Complaint under the Medical Practice Act 1992

DECISION

[2010] NSWMT 11

SUPPRESSION ORDER

1 Before the Medical Tribunal (the Tribunal) are two notices of complaint brought by the Health Care Complaints Commission (HCCC).

2 The first complaint (the prescribing complaint) (No 40021 of 2008) was amended during oral hearing to incorporate conduct on the part of the respondent which occurred during the period between 24 July 2006 and 26 November 2009 (the breach of conditions complaint). The prescribing complaint as originally formulated was divided into two sets of particulars under the headings "inappropriate prescribing" and "inadequate record-keeping" respectively. The first set of particulars was amended at an earlier stage by adding "Patient X" as a patient to whom it was alleged the respondent had prescribed "Schedule 4 restricted substances, inappropriately and outside therapeutic guidelines."

3 The first complaint (as amended) alleges that the respondent, being a medical practitioner under the Medical Practice Act 1992 (the Act), has been guilty of unsatisfactory professional conduct within the meaning of section 36 of the Act and/or professional misconduct within the meaning of section 37 of the Act in that he has:

(i) demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;

(ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine; and/or

(iii) contravened the Medical Practice Regulation 2003;

4 The "inappropriate prescribing" particular is further divided into the following categories:

Inappropriate prescribing:

Prescription of Schedule 8 drugs of addiction to drug dependent persons without authority

Poisons and Therapeutic Goods Act

(15 patients listed and identified by letters of the alphabet)

on the dates and in the manner detailed in the schedule to this complaint corresponding to the appropriate patient.

Prescription of Schedule 8 drugs of addiction on a long term basis without authority

(18 patients listed and identified by letters of the alphabet)

on the dates and in the manner detailed in the schedule to this complaint corresponding to the appropriate patient.

Prescription of Schedule 8 drugs of addiction inappropriately and outside therapeutic guidelines

(21 patients listed and identified by letters of the alphabet)

on the dates and in the manner detailed in the schedule to this complaint corresponding to the appropriate patient.

Prescription of Schedule 4 restricted substances inappropriately and outside therapeutic guidelines

(5 patients listed and identified by letters of the alphabet)

on the dates and in the manner detailed in the schedule to this complaint corresponding to the appropriate patient.

5 The "inadequate record keeping" particular is divided into the following categories:

(a) Relating to Schedule 8 drugs of addiction : The practitioner prescribed drugs of addiction for patients A to U without complying with the requirements of clause 81 of the Poisons and Therapeutic Goods Regulation 2002 ("the PTG Regulation") regarding the practitioner's record of that prescription;

(b) Relating to prescription of Schedule 4D prescribed restricted substances : The practitioner prescribed "prescribed restricted substances" within the meaning of the PTG Act for patients A to X without complying with the requirements of clause 37 of the PTG Regulation regarding the practitioner's record of that prescription;

(c) Relating to prescriptions in general : The practitioner failed to maintain adequate medical records in accordance with clauses 5 and 6 and Sch 2 of the Medical Practice Regulation 2003 for patients A to X in that he failed to record:

(i) information relevant to his diagnosis and treatment of the patients;

(ii) the patients' medical history;

(iii) the results of physical examinations performed;

(iv) plan of treatment for the patients;

6 Amendment of the first complaint included the addition of allegation (iv) at the beginning of the complaint (before particulars). Further amendments, set out in full below, appear at the end of the complaint:

Between 24 July 2006 and 26 November 2009, the practitioner possessed Schedule 8 drugs of addiction, namely pethidine, in contravention of a practice condition to which his registration was subject from 24 July 2006 to 21 December 2009, being that he not possess, supply, administer or prescribe any Schedule 8 drugs of addiction.

Between 24 July 2006 and 26 November 2009, the practitioner possessed Schedule 4D prescribed restricted substances, namely Murelax (oxazepam), Duromine (phentermine) and Di-Gesic (dextropropoxyphene hydrochloride and paracetamol), in contravention of a practice condition to which his registration was subject from 24 July 2006 to 21 December 2009, being that he not possess, supply, administer or prescribe any Schedule 4D prescribed restricted substance.

Between June 2009 and 26 November 2009 the practitioner possessed a Schedule 8 drug of addiction, namely cocaine, in contravention of a practice condition to which his registration was subject from 24 July 2006 to 21 December 2009, being that he not possess, supply, administer or prescribe any Schedule 8 drugs of addiction.

Between June 2009 and 26 November 2009, the practitioner possessed a Schedule 4D prescribed restricted substance, namely Xanax (alprazolam), in contravention of a practice condition to which his registration was subject from 24 July 2006 to 21 December 2009, being that he not possess, supply, administer or prescribe any Schedule 4D prescribed restricted substance.

Between June 2009 and 26 November 2009, the practitioner self-administered a Schedule 8 drug of addiction, namely cocaine, in contravention of a practice condition to which his registration was subject from 24 July 2006 to 21 December 2009, being that he not possess, supply, administer or prescribe any Schedule 8 drugs of addiction.

Between June 2009 and 26 November 2009, the practitioner self-administered a Schedule 4D prescribed restricted substance, namely Xanax (alprazolam), in contravention of a practice condition to which his registration was subject from 24 July 2006 to 21 December 2009, being that he not possess, supply, administer or prescribe any Schedule 4D prescribed restricted substance.

On 15 July 2009, while his registration was subject to practice conditions relating to his prescription of Schedule 8 drugs of addiction and Schedule 4D prescribed restricted substances, and health conditions relating to his mood disorder, alcohol dependence and other health problems, the practitioner failed to inform the Board appointed psychiatrist Dr Anthony Samuels that between June 2009 and 15 July 2009 he had - in contravention of a practice condition to which his registration was subject from 24 July 2006 to 21 December 2009 that he not possess, supply, administer or prescribe any Schedule 8 drugs of addiction - possessed a Schedule 8 drug of addiction, namely cocaine.

On 15 July 2009, while his registration was subject to practice conditions relating to his prescription of Schedule 8 drugs of addiction and Schedule 4D prescribed restricted substances, and health conditions relating to his mood disorder, alcohol dependence and other health problems, the practitioner failed to inform the Board appointed psychiatrist Dr Anthony Samuels that between June 2009 and 15 July 2009 he had - in contravention of a practice condition to which his registration was subject from 24 July 2006 to 21 December 2009 that he not possess, supply, administer or prescribe any Schedule 8 drugs of addiction - self-administered a Schedule 8 drug of addiction, namely cocaine.

Between 24 July 2006 and 15 July 2009, while his registration was subject to practice conditions relating to his prescription of Schedule 8 drugs of addiction and Schedule 4D prescribed restricted substances and health conditions relating to his mood disorder, alcohol dependence and other health problems, the practitioner failed to inform the Board appointed psychiatrist Dr Anthony Samuels that he had - in contravention of a practice condition to which his registration was subject from 24 July 2006 to 21 December 2009 that he not possess, supply, administer or prescribe any Schedule 8 drugs of addiction - possessed a Schedule 8 drug of addiction, namely pethidine.

Between 24 July 2006 and 15 July 2009, while his registration was subject to practice conditions relating to his prescription of Schedule 8 drugs of addiction and Schedule 4D prescribed restricted substances and health conditions relating to his mood disorder, alcohol dependence and other health problems, the practitioner failed to inform the Board appointed psychiatrist Dr Anthony Samuels that he had - in contravention of a practice condition to which his registration was subject from 24 July 2006 to 21 December 2009 that he not possess, supply, administer or prescribe any Schedule 4D prescribed restricted substances - possessed Schedule 4D prescribed restricted substances, namely Murelax (oxazepam), Duromine (phentermine) and Di-Gesic (dextropropoxyphene hydrochloride and paracetamol).

7 The second complaint, referred to during the proceedings as the "Medicare complaint" contains two complaints against the respondent set out in the following way:

COMPLAINT ONE

Has been convicted of offences in New South Wales.

Particulars of Complaint One

On 25 September 2007 at the Local Court at Burwood the practitioner was convicted of 64 counts of making a statement he knew to be false or misleading in a material particular and capable of being used in connection with a claim for a benefit or payment under the Health Insurance Act 1973 (Cth) in contravention of section 128B(1) of that Act.

COMPLAINT TWO

Has been guilty of unsatisfactory professional conduct within the meaning of section 36 of the Act and/or professional misconduct within the meaning of section 37 of the Act, in that he has:

(i) Engaged in conduct that has resulted in the practitioner being convicted of an offence under section 128B of the Health Insurance Act 1973 (Cth) ("the HIC Act").

(ii) Engaged in improper or unethical conduct relating to the practice of medicine.

Particulars of Complaint Two

8 It emerged during the proceedings before the Tribunal that the respondent had in fact been convicted of 63 counts, not 64 counts, as alleged in the body of the Medicare complaint.

9 The respondent admitted his conduct the subject of the first and second complaints, including all the particulars of the complaints. He also admitted in writing prior to the hearing that his conduct amounted to professional misconduct. The issue to be determined by the Tribunal is what form the protective orders should take. The parties made extensive submissions on this issue, both at oral hearing and in written submissions received by the Tribunal following the conclusion of the hearing.

10 Before addressing those submissions, it is necessary first to provide some factual background to the matters forming the basis of the complaints against the respondent.

Prescribing Complaint

11 The particulars of the prescribing complaint were expressed by reference to the respondent's prescribing to a sample of 22 (23 including patient X) of his patients. The details of his prescribing were set out in 39 pages of tables of each prescribing event and whether it was noted in the respondent's records. The prescribing, the subject of the complaint, covered the period from 23 November 2003 to 17 March 2006.

12 This was not the first occasion on which the respondent had come to the attention of the NSW Health Department (the Department). In 2002, a complaint was made to the Department against him alleging that he had been prescribing Schedule 8 drugs of addiction, as well as prescribing anabolic/androgenic steroids for non-medical purposes and benzodiazepines. It was also reported to the Department that the respondent had issued prescriptions for the steroids without including the address of the patient and without including an interval of repeat when ordering repeat supplies, both matters said to be contrary to the PTG Regulation. In addition, the Department voiced concerns to the respondent that he appeared to have issued prescriptions for a drug of addiction continuously for a period of two months without having applied to the Department for the necessary authority.

13 The respondent was investigated by the Department in 2002 in relation to the allegations. As a result of that investigation he was advised:

(a) To obtain prior approval for an authority under Section 28 of the PTG Act if he wished to prescribe drugs of addiction, particularly for drug dependent patients;

(b) To prescribe within normal therapeutic standards, i.e. in a quantity and for a purpose that is in accord with the recognised standard and is appropriate in the circumstances, as required by the PTG Regulation;

14 The respondent was also issued at that time with certain literature to assist him when prescribing to patients and to enable him to conform within the parameters of the advice set out immediately above.

15 The prescribing complaint appears to have been initiated by a letter dated 18 July 2006 sent to the Medical Board of New South Wales (now known as the Medical Council of New South Wales) (the Board) by a psychiatrist who was treating Patient X at that time.

16 On 24 July 2006, the Board conducted an Inquiry under s 66 of the Act following an investigation and report completed by the Pharmaceutical Services Branch (PSB) in early June 2006 which contained a recommendation by the PSB that its Report be forwarded to the Board, "for its information and any immediate action deemed appropriate".

17 The Inquiry referred to the investigation conducted by the PSB in 2002 regarding the respondent's prescribing of anabolic/androgenic steroids, benzodiazepines and various Schedule 8 drugs; and, to the subsequent advice tendered to the respondent on 17 July 2002 that he must obtain prior authority if he wished to prescribe drugs of addiction, particularly for drug dependent patients, and otherwise to prescribe within normal therapeutic standards.

18 The Inquiry also referred to further "numerous complaints alleging inappropriate and/or dangerous prescribing of benzodiazepines and drugs of addiction" in regard to which an investigation was commenced on 28 February 2006. These complaints formed the basis of the "prescribing complaint" presently before the Tribunal.

19 The respondent provided a statement at the Inquiry dated 24 July 2006. In it he provided detailed histories of the patients in regard to whom he was alleged to have inappropriately and dangerously prescribed drugs of addiction and benzodiazepines. After the conclusion of the evidence, the report of the Inquiry set out a number of findings made against the respondent. These have been extracted below:

The delegates noticed that in his evidence Dr Mukherjee had unreservedly accepted the conclusions reached by the Pharmaceutical Services Branch following its investigation and stated that he was prepared to relinquish his Schedule 4D and Schedule 8 prescribing rights. However he demonstrated little insight by continuing to claim that he had acted in the best interests of his patients. He did not accept that he had been counselled in 2002 in relation to the prescribing of benzodiazepines and Schedule 8 drugs until the investigating officer's report was tabled.

He was evasive in his responses to a number of questions and in some instances the evidence he gave was self-contradictory.

He told the delegates he had moved from Fairfield to Primary Health Care in Campbelltown because of the better facilities available onsite there for the patients, but in 2002 he had stated to the Pharmaceutical Services Branch that he had left because the pressure of new patients was too stressful. He told the investigating officer that at Campbelltown he benefited from the prescribing conditions imposed by the medical committee. It was the practice policy to discourage drug-seeking patients. Benzodiazepine prescribing was strictly controlled and excuses such as lost tablets or prescriptions were to be refused. However in his oral evidence Dr Mukherjee said that his acceptance of such excuses (after he returned to Fairfield) had contributed to his apparent overprescribing. He was not able in any case to provide justification for his claim that he had acted in the best interests of his patients and it was with some reluctance he acknowledged that with hindsight he had not done so.

It was also noted that in spite of Dr Mukherjee's written statement dated 24 July 2006, to the contrary, he had continued to prescribe Schedule 8 drugs without authority and to patients who are or were in the methadone program.

The delegates concluded that at the time he had prescribed for the patients who were the subject of the investigation he was well aware of the requirements under section 28 of the Poisons and Therapeutic Goods Act and had knowingly breached them over a long period. He had been made aware (if he had not been previously) of the activity of drug seekers during the short time he had practised in Campbelltown where the prescribing of benzodiazepines had been mentioned. Patients followed him on his return to Fairfield, where he appeared to have prescribed large quantities of drugs on demand, presumably to many patients in addition to those in the sample investigated.

The delegates agreed that action was necessary for the purpose of protecting the life or physical or mental health of any person, and accepted the submissions that Dr Mukherjee's conduct which is the subject of this inquiry relates solely to Schedule 4 and Schedule 8 drugs and does not warrant suspension.

20 The Inquiry determined as a result of the findings made to impose eight conditions on the respondent's registration to take effect from 24 July 2006. These were:

(1) Not to possess, supply, administer or prescribe any Schedule 8 drugs of addiction.

(2) To immediately relinquish his authority to possess, supply, administer or prescribe Schedule 8 drugs of addiction to the Pharmaceutical Services Branch.

(3) Not to possess, supply, administer or prescribe any Schedule 4 Appendix D restricted substance.

(4) To immediately relinquish his authority to prescribe Schedule 4 Appendix D restricted substances to the Pharmaceutical Services Branch.

(5) Any change in prescribing authorities is to be in accordance with the Board's protocol.

(6) To provide the NSW Medical Board with a copy of the conditions on his registration, which has been signed by all doctors in his current and any future practice acknowledging they have read the conditions on his registration.

(7) To consent to any exchange of information between the NSW Medical Board and Medicare Australia of the Pharmaceutical Services Branch where such an exchange is necessary to facilitate monitoring or compliance with registration conditions.

21 The following day, 25 July 2006, the Director-General of the Department sent a letter to the respondent informing him that pursuant to the respondent's request under clause 171(1) of the PTG Regulation, an order was made prohibiting him, as a medical practitioner, from doing the following:

(a) supplying or having possession of drugs of addiction as authorised by clause 101 of the Regulation and from issuing a prescription for a drug of addiction under clause 76 of the Regulation;

22 The orders were stated to come into effect on and from 28 July 2006 and to remain in force until the respondent was notified otherwise.

23 The subject matter of the Inquiry was referred by the Board to HCCC for investigation as a complaint. The complaint was characterised by the Board as one where the respondent, "may be guilty of unsatisfactory professional conduct or professional misconduct as defined under s 36 of the Act, in that his conduct has demonstrated that his knowledge, skill or judgment possessed or care exercised in his practice of medicine may be significantly below the standard reasonably expected of a practitioner or of an equivalent level of training or experience".

24 By a series of letters dated between 17 August 2006 and 25 October 2006, the respondent was informed by the HCCC that it was investigating the subject matter of the "prescribing complaint", including the complaint made about Patient X. The respondent's legal representatives advised the HCCC that the respondent intended to rely on his statement to the Board dated 24 July 2006 for the purposes of the HCCC's investigation. The statement had not addressed the allegation with regard to Patient X because the respondent had not been informed by the Board until shortly before the s 66 Inquiry that it was to be considered at the Inquiry. On 20 January 2007, the respondent's legal representatives wrote to the HCCC offering the following explanation on behalf of the respondent with regard to the allegation concerning Patient X:

1. At the time Dr Mukherjee was treating (Patient X), he was of the view his prescribing was appropriate. With the benefit of hindsight and subsequent legal advice, Dr Mukherjee concedes he was misguided.

Medical Practice Regulations

25 As part of its investigation into the prescribing complaint, the HCCC wrote to Dr Ian Chung requesting him to provide an independent review of the subject matter of the complaint and attaching relevant documentation.

26 Dr Chung provided a report on 27 January 2007. It is useful to reproduce some of the salient features of the report. Under the heading "Drugs of Addiction" in the report, Dr Chung wrote:

There is a recognised standard within the medical profession in relation to the prescribing of drugs of addiction in regards the exercise of responsible medical judgment, departure from which standard would be considered unacceptable by practitioners of good repute and competence. This would include the following:

i) Strict adherence to all laws, rules and regulations both state and federal pertaining to the prescribing, use, storage and medical recording of drugs and poisons being used and/or prescribed by the practitioner;

ii) Observance of all recognised clinical practices, knowledge and research concerning the safe prescribing and use of drugs of addiction;

iii) Scrupulous avoidance of any prescribing practices that may risk inducing or perpetuating addiction to any drug;

iv) Care to protect the patient from possible side effects, drug interactions and other deleterious effects due to the prescribing and use of the drugs;

v) Obtaining adequate evidence that the drug prescribed is necessary and the most appropriate method of targeting the patient and that the patient is adequately diagnosed as suffering with a condition requiring the drug being prescribed by the practitioner;

vi) Ensuring that the patient is not addicted to this drug or any other drug and that the patient is not at risk of addiction;

vii) Ensuring that the duration of drug use not only meets with all legal requirements but also does not place the patient at any risk including the risk of addiction;

viii) Ensuring that the patient receive treatment and/or referral to specialists to address the cause of the symptom being treated;

ix) Ensure that the patient is given every encouragement and referral to alternative and non-addictive pain management options e.g. Pain clinics;

x) accept any and all advice, instructions and counselling offered by the PSB, the NSW Medical Board or any other statutory body, as well as any medical peer group whose attention is drawn to any irregularities in prescribing by the doctor.

27 Later in the report, Dr Chung assessed, and made findings, with regard to the respondent's conduct by reference to his itemised examples of responsible medical judgment in conformity with the standard.

28 One finding made by Dr Chung was that the respondent ought to have known that fifteen of his patients (drawn from the sample of patients) had a history of drug dependence. The basis upon which the finding was made was that practitioners of a level of training or experience equivalent to the respondent would consider it to be good clinical practice to take a proper medical history and perform an appropriate examination where s 4 and s 8 drugs are requested by the patient. This would necessitate specific questioning of the patient as to their drug use history and, in some circumstances, seeking corroborative information from other sources. According to Dr Chung, all practitioners of a level of training and experience equivalent to the respondent, "would be alert to various suspicious behaviour and/or clinical signs and/or features of medical history that were evident in their patient". Dr Chung remarked:

The extent of Dr Mukherjee's conduct in relation to inappropriate prescribing to such a large number of patients with drug dependence indicates that his standard of clinical practice did not meet that of practitioners of an equivalent level of training or experience. On this basis I am severely critical of his conduct. His conduct attracts my severe disapproval and, in my opinion, his conduct would attract the severe disapproval of his peers of good repute and competence.

29 With regard to the allegation that the respondent prescribed s 8 drugs to patients without the proper authority, Dr Chung sought to emphasise that it was the duty of all registered medical practitioners of a level of training and experience equivalent to the respondent, to ensure they are fully conversant with all laws, rules and regulations pertaining to the prescribing, use, storage and medical recording of drugs and poisons being used and prescribed. Dr Chung remarked that the rules and regulations are freely available to all practitioners from a number of sources. He noted that in the respondent's case he had been specifically advised at an earlier stage, in 2002, in relation to the prohibition on prescribing drugs of addiction in certain cases without obtaining the proper authority and that, "it would appear that Dr Mukherjee's inappropriate conduct continued after this advice".

30 Dr Chung also referred to the respondent's statement dated 24 July 2006 in which the respondent made statements to the effect that he:

· accepted that he should have obtained the proper authority;

· conceded that he did not make adequate inquiries and should have been more assertive, and,

· his management of the patients appears less than ideal.

31 Dr Chung remarked in relation to these statements:

I note his statement comes after four years of continued inadequate conduct following strong warnings from the Pharmaceutical Services Branch. In my opinion, practitioners of an equivalent level of training or experience would have heeded this warning promptly, would have reacted with concern to such warning, would have promptly amended their prescribing habits and/or sought guidance and advice as to their clinical and legal responsibilities.

Dr Mukherjee's delay in responding appropriately to the Pharmaceutical Services Branch's advice is unsatisfactory and casts doubt upon the credibility of any contrition in his statement of 2006. This doubt is reinforced by his conduct at the Section 66 Inquiry dated 24th July 2006 where I note that Dr Mukherjee "continued to justify his actions", "failed to give a coherent answer to the question" (as what changes had occurred) and he "demonstrated little insight by continuing to claim that he had acted in the best interest of his patients".

32 In his evidence before the Tribunal, the respondent's explanation for his conduct the subject of the prescribing complaint was largely consistent with his earlier explanations.

33 In cross-examination, the respondent was asked why he had prescribed Schedule 8 drugs of addiction inappropriately and outside therapeutic guidelines to Patient B. He responded:

Because you prescribe for a time and I should have brought in a specialist opinion or tried some medication before that.

34 According to the schedule annexed to the prescribing complaint with regard to Patient B, the respondent prescribed Endone tablets on 20 November 2003 and Pethidine (both Schedule 8 drugs of addiction) to Patient B on 23 October 2003 and again on 8 October 2005 without making records of the prescription.

35 The respondent was also questioned on the same topic with regard to Patient D. He initially responded by saying:

Well I prescribed Oxycodeine for a period approximately 12 months for severe migraine but it was done without authority.

36 The following exchange during cross-examination of the respondent took place:

37 Patient D, according to the schedule annexed to the prescribing complaint, was prescribed Endone and Pethidine on a regular basis between the period 7 September 2004 until 21 February 2006. The length of the period and the consistency of prescribing suggests that the respondent had little regard for the advice and the information given to him in 2002, following his earlier similar conduct and shows that at least as at 24 June 2006 he had little understanding of, or insight into, the seriousness of his conduct. The explanation during his cross-examination with regard to Patient B (that he should have consulted specialist opinion) is particularly unconvincing when viewed against the benefit of the counselling and literature he received in 2002 and the length of time during which he continued to prescribe Schedule 8 drugs of addiction without proper authority.

The Medicare complaint

38 The Medicare complaint arose out of the respondent's conviction on 25 September 2007 at Burwood Local Court in relation to the charges of knowingly make false statements relating to Medicare benefits contrary to section 128B of the Health Insurance Act 1973 (Cth). The conduct in relation to the charges extended over a period from 12 July 2002 until 5 March 2004. The respondent was sentenced to perform 200 hours community service and was released on his own recognisance to be of good behaviour for three years and accept during that time the care of Dr Sharat Lal, a psychiatrist. The respondent was also ordered to make reparation in the sum of $9,453.70 to Medicare Australia, that amount representing the payments received by the respondent as a result of making the false statements.

39 The material tendered by the HCCC during the proceedings in relation to this complaint suggests a course of conduct which took place on 63 occasions over a lengthy period of time, although the total amount of money obtained was not overly large. It appears from the material that the respondent submitted forms to Medicare containing fictitious item numbers and details of procedures which he had not performed. The patients nominated had no knowledge that their names had been used on the claim forms.

40 The respondent was asked during cross-examination why he made false statements on the forms. His responses were somewhat equivocal:

The breach of conditions complaint

41 On 24 September 2007, the respondent was seen by Dr Sharat Lal, in his capacity as the respondent's treating psychiatrist. Dr Lal prepared a report at the request of the respondent's legal representatives, apparently in relation to the respondent's anticipated court appearance and sentence with regard to the 63 charges of knowingly make false statements (on Medicare forms).

42 In the report, Dr Lal diagnosed the respondent as suffering from "Bipolar II Disorder, namely periods of depression with short periods of hypomania". Dr Lal had no doubt that the respondent's condition, "contributed significantly to his aberrant behaviour". Dr Lal noted in the report that the respondent had problems with gambling and alcohol misuse.

43 On 29 April 2008, Dr Lal wrote a second report for the Board in which he provided the following information:

Dr Mukherjee did not return to see me after his court case (a condition of a Good Behaviour Bond, it appears) but has returned today, again requesting a report for Medicolegal reasons (prior to a hearing before the Medicare Participation Review Committee). He informs me he has been in Southwest Private Hospital under Dr L.J. Day in Liverpool in October 2007 for alcohol detoxification. He saw Dr Leslie Lim, Psychiatrist, whilst an inpatient there. He also informs me that, prior to this, he had at times attended patients in his private practice whilst under the influence of alcohol.

While Dr Mukherjee states he has not been consuming alcohol now for several months, and liver function tests he supplied support this, it is clear he suffers from an Alcohol Dependence Disorder, currently in remission. I feel he is an impaired practitioner. While I am prepared to again offer Dr Mukherjee psychiatric care, I am not a Drug and Alcohol Specialist, and feel it would be appropriate for Dr Mukherjee to also be under the care of an expert in that area.

44 The reference in Dr Lal's latest report to the respondent as "an impaired practitioner" appears to have prompted the Board to engage Dr Anthony Samuels, a psychiatrist, to assess whether the respondent should be dealt with via an impaired registrant's panel. Dr Samuels provided a report on 17 June 2008. The report included a history taken from the respondent in which the respondent admitted to a problem with alcohol. The report notes that the respondent, "strongly denied any history of opioid misuse or other prescription drug misuse". The report delivered the following opinion:

It does sound like the above has a longstanding mood disorder which has been characterised mainly by depressive periods but there have also been some well defined periods where his mood has been elevated where he spent money excessively and behaved somewhat erratically. His presentation is in my view in keeping with a diagnosis of Bipolar Affective Disorder and his symptoms seem to have stabilised since he has been placed on the mood-stabilising medication valproate.

He does in addition have features suggestive of alcohol abuse and dependence. He tells me he has not had any alcohol since October last year and has made it clear that he intends to stay abstinent in the longer term. His alcohol abuse has almost certainly exacerbated his underlying mood disorder and it is imperative that he remain abstinent in the longer term.

He also has a number of general health problems including hypertension hypercholesterolaemia and mild diabetes required regular oversight by his general practitioner and treating physician (Dr Day).

It is my view that the above does suffer from an impairment within the meaning of the Act and that he would benefit from referral to the Impaired Registrants Program.

45 Among a number of recommendations made by Dr Samuels was that the respondent be entered into the Impaired Registrant's Programme with further conditions imposed on his registration.

46 An Impaired Registrant's Panel (the Panel) Inquiry under s 82 of the Act was held at the Board's premises on 13 August 2008. The Panel determined that the respondent's conditions (of which there were eight) imposed by the Board's delegates at the s 66 Inquiry on 24 July 2006 should remain and should be supplemented by additional practice conditions, as well as health conditions, in the following terms:

Practice Conditions

9. To work only in a group practice (group may be defined as at least 3 practitioners).

10. To authorise the NSW Medical Board to notify his employer/s of any issues arising in relation to compliance with any of his conditions.

Health Conditions

1. Not to prescribe for self-medication.

2. To attend for treatment by a general practitioner of his choice, at a frequency to be determined by Dr Gopal Mukherjee and the treating practitioner. To authorise his treating practitioner to inform the NSW Medical Board of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change).

3. To abstain completely from the consumption of alcohol.

4. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise his treating psychiatrist to inform the NSW Medical Board of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change).

5. To continue taking any medication prescribed by his treating practitioners.

6. To attend for treatment by a physician of his choice, at a frequency to be determined by the treating practitioner. To authorise the treating practitioner to inform the NSW Medical Board of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change).

7. That the extent of his professional medical duties is to be guided by his health status and the advice of his treating & Board-nominated practitioners.

8. To have blood taken for measurement of Carbohydrate Deficient Transferrin levels at monthly intervals in strict accordance with the NSW Medical Board's protocol. The results of all tests to be forwarded to the treating and Board-nominated practitioners and to the NSW Medical Board. He understands that such testing will be at his expense.

9. To attend for review by the Board-nominated psychiatrist on a three monthly basis or as otherwise directed by the NSW Medical Board, at the NSW Medical Board's expense.

10. To attend a Review Interview at the NSW Medical Board in three months or as otherwise directed by the NSW Medical Board.

11. To authorise the NSW Medical Board to forward copies of the Impaired Registrants panel report, subsequent Board Review Interview reports and other information relevant to his impairment to the Board-nominated practitioners and his treating practitioners.

12. To authorise a nominated senior medical practitioner at all locations where he works to notify the NSW Medical Board immediately if there are any concerns in relation to his health or clinical performance. The nominated senior medical practitioner is subject to approval by the NSW Medical Board.

47 Thereafter, between the period 14 October 2008 and 23 July 2009, Dr Samuels, the Board appointed psychiatrist for the respondent under the Impaired Registrant's Programme, reviewed the respondent's progress. In addition, during that period, the respondent took part in interviews conducted by members of the Panel with a view to monitoring the respondent's progress.

48 On 15 July 2009, the respondent made an unscheduled visit to Dr Samuels. Dr Samuels prepared a report on 23 July 2009 in relation to the visit. The report revealed a number of matters. According to Dr Samuels, the respondent had requested an urgent appointment prior to a Tribunal hearing on 12 August 2009. Dr Samuels reported that the respondent arrived an hour late for the appointment and informed him that he had been disqualified from practicing medicine for three months but was lodging an appeal. He also informed Dr Samuels that he had to see the Tribunal in relation to writing prescriptions for Schedule 4D and Schedule 8 drugs, although he categorically denied having done this. Dr Samuels remarked, "he was unable to really explain to me why he was going to see the Tribunal".

49 Dr Samuels took the opportunity to go through each condition imposed upon the respondent. With regard to the 10 practice conditions imposed against the respondent, he said that the respondent told him that he was abiding by those conditions and he assured Dr Samuels that he had not written any prescriptions of any kind. He also told Dr Samuels that he did not have any Schedule 4D or Schedule 8 drugs in his possession.

50 According to Dr Samuels, the respondent's health conditions were gone through more systematically than were the practice conditions. In relation to the first health condition, Mr Samuels reported that the respondent, "assures me that he is not self-prescribing". Mr Samuels also set out his impressions in the report of the respondent's mental status at the time of the visit:

Dr Mukherjee appears to have presented here today in a state of some distress in relation to ongoing actions that are being taken against him by the Medical Tribunal and I presume the Administrative Decisions Tribunal. He certainly presented as appearing a little dishevelled, he was late for his appointment and quite vague and it was difficult to get a clear picture of events from him. I did wonder if his mood state was mildly elevated but he denied sleep or appetite disturbance or mood instability and part from appearing mildly anxious there was no evidence of excessive psychomotor activity.

He absolutely denies any current alcohol use and says that he "has an aversion".

51 A subsequent interview with the respondent conducted by the Board on 12 August 2009 clarified a number of matters raised by the respondent on 15 July 2009 during his unscheduled visit to Dr Samuels. These included that there was no imminent Tribunal hearing involving the respondent at the time of the visit. Instead, it was a Board review. The respondent's statement to Dr Samuels that he had been disqualified from practice for three months was also clarified. The respondent's Medicare payments had been suspended for three months but the suspension had been deferred pending an appeal to the Federal Court. At that stage, the respondent had not been suspended from the practice of medicine. During the interview, the Board made specific reference to Dr Samuels' comments in a report of 23 June 2009 regarding the prescriptions for Schedule 4D and Schedule 8 medications. In the June report, Dr Samuels had noted:

We moved on to talk about the issue of three prescriptions that were written for S8 drugs. He said one was definitely not in his own hand, one was overwritten by a patient who had changed a prescription from monoxidil to Mogadon and he said the third instance involved a script that he had written for Panadeine Forte that the pharmacist had unilaterally changed to Di-gesic, claiming that he had a telephone order to this effect. Dr Mukherjee said this was not the case.

52 The Board recorded in the Interview Review Report that, "Dr Mukherjee again stated categorically that he did not supply S8 or S4 Appendix D medication at that time". As a result of the interview, the respondent's conditions, imposed by the Board at the s 66 Inquiry on 24 July 2006 and supplemented by the Impaired Registrant's panel on 13 August 2008, remained unchanged. The respondent was required to attend a further Review Interview in February 2010.

Events of 24 November 2009

53 The events that took place on 24 November 2009 form the basis of the "breach of conditions" complaint which was incorporated into the prescribing complaint during oral hearing on 9 April 2010.

54 A facts sheet prepared by the New South Wales Police on the events of 24 November 2009 recorded the following matters:

The accused, Gopal MUKHERJEE is a doctor working as a General Practitioner at the Fairfield District Medical Centre at 147 Polding Street, Fairfield Heights.

At 1.15pm on Tuesday, 24th November 2009, the accused, Gopal MUKHERJEE, contacted Triple O and requested police to attend his residence at 44 Cherrybrook Road, Lansvale, to report a break and enter.

Police arrived a short time later where they spoke with the accused and another person involved in the incident, however, both parties expressed they did not wish for police to investigate the break and enter.

not

Police entered the bedroom of the accused and he immediately ran to a brown briefcase and took hold of it. When questioned about the briefcase, the accused expressed to police that the contents of the bag was privy to doctor-patient confidentiality and strongly denied police permission to search the contents of the bag.

Police advised the accused that they would be guarding the house and that they would be applying for a Search Warrant to allow them to thoroughly search the entire premises. At this point, the accused complained of sharp chest pains and as a result an Ambulance was called.

The accused was conveyed to Bankstown Hospital by Ambulance for treatment. Police applied for and were granted a Search Warrant to search the premises which took place in the absence of the accused.

The Search Warrant commenced at 12.02am and police commenced searching the brown briefcase.

Police continued to search the premises and located a substantial amount of Prescription Medication throughout the house. It was observed that the medication were in names other than the name of the accused.

Police located further Prescription Medication Pads which were not in the name of the accused and it was observed that one of the Prescription Pads appeared to have been used.

... prescription medication, prescription pads and other miscellaneous items were seized by police and booked up as exhibits.

Police returned the items to Cabramatta Police Station ...

Police attended Bankstown Hospital on Wednesday, 25th November 2009. The accused was placed under arrest and cautioned at this time. He remained at Bankstown Hospital under police guard for the remainder of his treatment.

The accused was released from Bankstown Hospital on Thursday 26th November 2009. He was conveyed to Cabramatta Police Station and booked into Custody at 4.00pm.

The accused contacted his legal representative and was offered the opportunity to participate in an electronically recorded interview, to which he declined.

The accused was charged with the matters now before the court.

At this time, further enquiries are being conducted in relation to the Prescription Medication, Prescription Pads, and other items located during the search. It is anticipated further charges will be laid as a result of those enquiries.

55 According to the facts sheet, the respondent, "admitted to being a Cocaine and Methylamphetamine user and also submits to regular sample tests as per the supervision of the Medical Board".

56 Among prescription drugs located by the police at the respondent's home on 24 November were the following:

57 There was no connection on the evidence adduced during the Tribunal proceedings between the Di-gesic found at the respondent's home and the prescription which the respondent informed Dr Samuels had been issued for Panadeine Forte but which had been changed by a pharmacist to Di-gesic.

58 The prescription drugs butamol, pethidine and Di-gesic had apparently been prescribed to other persons whose names appeared on the packets seized by the police. The prescription booklets located by the police were in the following names:

59 The evidence indicated that Dr Elbeani did not work at Fairfield District Medical Centre as at 24 November 2009 and Dr Khan had died several years before that date.

60 Pethidine and cocaine are Schedule 8 drugs of addiction within the meaning of the PTG Act. Di-gesic, Xanax, Duromine and Murelax are Schedule 4D drugs.

61 Further information supplied by the police revealed that in addition to the prescription drugs found at the respondent's home, small quantities of substances believed to be cocaine and methamphetamine were also found, along with various drug-using paraphernalia being several small glass pipes which the police suggested were of a type commonly used to smoke "ice" (methamphetamine).

62 Following information received by the police with regard to the incident, the Board, on 21 December 2009, convened a second s 66 Inquiry. In summary, the Board found that the large quantity of prescription drugs which included Schedule 8 and Schedule 4D drugs found at the respondent's home was in breach of conditions of his registration that he not possess, supply, administer or prescribe any Schedule 4 Appendix D or Schedule 8 drugs of addiction. The Board also took into account the numerous prescription pads issued in the names of other medical practitioners. The Board also considered the respondent's history with the Board. Taking all these matters into account, the Board decided that, "in order to protect the health and safety of the public, Dr Mukherjee should be suspended from practice for a period of eight weeks". Part of the Board's reasons for its decision to suspend the respondent is recorded in the Inquiry document as follows:

somewhat dishevelled

very vague

unkempt

Dr Mukherjee has admitted in relation to inappropriate prescribing and inadequate record keeping. Although these offences occurred in 2005 and 2006, the police evidence in relation to the drugs and prescription pads found in his home also strongly suggests a relapse into this pattern of conduct. Clearly, inappropriate prescribing may put the health and safety of patients at risk.

...

... The apparent breach of the conditions on his registration cannot be regarded lightly, particularly in view of his admission to inappropriate prescribing in the past. At the time of these proceedings, Dr Mukherjee is still in custody but due for imminent release over the holiday period when his treating psychiatrist is away, and he will have limited access to support services. It is the view of the delegates that Dr Mukherjee poses a real risk to the health or safety of the public if he continues to practise.

63 In examination-in-chief, during the Tribunal proceedings the respondent was asked to explain how it was that on 24 November 2009 he was in possession of several prescription pads in the names of other practitioners. The transcript records the following exchange on that issue:

64 The respondent was questioned further on this issue by the Tribunal. In response to a number of questions as to why the prescription pads in the names of other practitioners were found at his residence, the respondent said that all the prescription pads at the practice where he worked were kept in a cupboard in the treatment room at the Fairfield Medical Centre where he worked. He said that sometimes he did not have his prescription pad so he was given someone else's prescription pad to use. When this occurred he crossed out the provider number and wrote in his own name. He said it was a habit of his to put the prescription pads belonging to someone else in his treatment bag and then go home. With regard to the prescription pads located at his residence by the police, he said all of the doctors whose names appeared on the pads had, at some stage, worked in the surgery.

65 Some of the respondent's conduct with regard to prescription pads was supported in other evidence by Dr Antonio Josef Sanki, the owner of the Fairfield practice and the employer of the respondent while he worked there. According to Dr Sanki, he said that he sometimes used another doctor's prescription pad if his own was not immediately available and he would cross out the name on the pad and write in his own name. After he finished writing a script he said that he would usually return the pad to the drawer where the prescription pads were left. He agreed that it would not be usual to take another doctor's prescription pad and place it in his own treatment bag. Dr Sanki was also asked by the Tribunal if he could explain why the respondent took home unused prescription pads not in his own name, where they were located by the police on 24 November 2009. Dr Sanki responded, "I cannot explain that". Dr Sanki was also asked to confirm whether all of the doctors whose names appeared on the prescription pads located at the respondent's premises had, at some stage, worked in the Fairfield practice. Dr Sanki was able to confirm that all of them had, at one stage, except Dr Elbeani.

66 In examination-in-chief, the respondent was asked why he was in possession on 24 November 2009 of murelax, a S4D drug. The respondent replied:

A. Well, after 2006 July I shouldn't possess or administer, I understand that. I should have come home and cleaned up all my cupboards, all my old doctor's bag, because I've got doctor bag for ten years of the medicine lying there, and I admit I failed to do that and I supposed to take them and to, should have destroyed them, some of the medicine lying there for ten years but 2000, after 2006 I don't remember bringing anything except a box of Xanax left by a friend.

67 He was asked similar questions in chief about his possession of pethidine, Di-gesic and Xanax. In relation to the pethidine, the respondent explained that the person to whom it had been prescribed had been a patient of his some nine years ago; that he had left the packet in his doctor's bag and he should have thrown it away but, "I didn't get the chance to do it". He could not explain why he had possession of the Di-gesic, also prescribed in a former patient's name. In relation to the Xanax, he said it had been left there recently by a friend. He agreed that it was used to counter sleep disorders and anxiety and said that he had used it "a couple of times".

68 During cross-examination, the respondent said that the patient to whom he had prescribed pethidine would sometimes come to his home where he would administer it to her by injection,

69 In examination-in-chief, the respondent was also asked a number of questions about the cocaine and methamphetamine located at his home on 24 November 2009. It appeared to have been accepted by the parties during the Tribunal proceedings that very small quantities (referred to as residues) of both drugs had been found.

70 The respondent said that he had been using cocaine since the end of June 2009. He agreed that at that time he was on the Impaired Registrant's Panel and was taking medication (under medical supervision) for his bipolar disorder. He said that he used three to four grammes of cocaine per week, "two little bags or, normally two, I don't know how much is left, I pulled the plate and I take one or two". He said he used cocaine because he was "very down" (with regard to the decision of the Medicare Participation Review Committee to remove him from the Medicare system for three months). He also mentioned "the legal pressure" and, "just too much stress". He added that it was, "a very stupid thing to do, but I did it".

71 The respondent also said that people came to his home on alternative weekends for a party and brought cocaine with them. He said he did not buy any of the cocaine. He took the Xanax to take the "sharp edge" off the effects of the cocaine, that is, so he could sleep. He said he appreciated that a side effect from cocaine use could be cardiac arrythmia and that it could also affect mood changes. With regard to the methamphetamine, the respondent said he used it only once with the aid of one of the glass pipes but he did not like the effect and he was "scared for two days afterwards" after smoking it.

72 In cross-examination, he admitted that he had failed to tell Dr Samuels when he visited him on 15 July 2009 that he was using cocaine and Xanax. He said: "No I didn't tell him and I am extremely extremely remorseful for my behaviour".

Protective orders

73 The HCCC's contention with regard to protective orders to be made by the Tribunal was that those orders must include an order for de-registration under s 64(1) of the Act and an additional order under s 64(3) of the Act that the respondent may not make an application under Division 3 of Part 6 of the Act for review of the de-registration until after three years have elapsed. The bases upon which these orders were sought were set out in written submissions received after the Tribunal proceedings had concluded. Those submissions sought to emphasise the following matters:

(1) There is an accumulation of three types of serious professional misconduct - inappropriate prescribing, Medicare fraud and breaches of conditions - each of which would justify de-registration on general deterrence grounds alone. Cumulatively, they give rise to a very strong case for de-registration.

(2) The Respondent's explanation for his behaviour primarily hinges on his bi-polar disorder. He argues that, since his disorder is under control, he is unlikely to behave in the future as he has in the past. Nevertheless, to the extent that his prescribing behaviour was due to aspects of his personality unrelated to his mental health condition, he is prepared to consent to a condition on his registration that he not possess, supply, administer or prescribe Schedule 8 or Schedule 4D substances.

(3) The Respondent admits that in the past he has managed his stress through substance abuse. Earlier in his life he did this with excessive alcohol consumption. More recently he has not used alcohol, in part because he can no longer physically tolerate it and in part because of the conditions on his registration, which required that he abstain from alcohol and undertake tests for alcohol consumption. Having given up alcohol some years earlier, between June and November 2009, he managed his stress though (sic) the use of cocaine.

(4) The expert evidence was that use of cocaine and/or methamphetamine can destabilise a patient with a bi-polar disorder. They can trigger a manic episode on their own and they can also have the effect of counteracting the effects of the drugs used to treat the condition.

74 According to the HCCC the factors outlined above demonstrate that the Tribunal cannot be confident that the respondent will co-operate with a treatment regime for control of his bi-polar condition. The Tribunal cannot be confident that the respondent will not repeat the behaviour he says was influenced by his medical condition, or that he will take a conscientious attitude to complying with any conditions that may be placed upon his registration. In short, the HCCC submitted that a protective order imposing further conditions over the respondent's registration, in lieu of de-registration, would not be appropriate given the factors outlined above.

75 In oral and written submissions received after the conclusion of the Tribunal proceedings, the respondent presented a number of alternative protective orders to that offered by the HCCC (de-registration), for the Tribunal's consideration. There were:

1. that the Tribunal had the power and should consider adding its own complaint of impairment; and,

2. the maintenance of practice conditions and health conditions imposed upon the respondent by the Board and the Impaired Registrant's Panel, together with the imposition of additional conditions to reflect the development on 24 November 2009; and,

76 We propose to consider the alternative protective orders put forward by the respondent.

Impairment, conditions and suspension

77 According to the respondent, the Tribunal has the power under Clause 5 of Schedule 2 of the Act to add its own complaint of impairment.

78 Clause 5 of Schedule 2 provides:

(1) A Committee or the Tribunal may in proceedings before it deal with one or more complaints about a registered medical practitioner.

(a) whether instead of or in addition to the complaint which was made; and

(b) whether or not by the same complaint,

the Committee or the Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings.

(a) a finding on a question of fact in relation to the conduct of a registered medical practitioner;

(b) a finding that a registered medical practitioner is guilty of unsatisfactory professional conduct or professional misconduct.

79 No authorities were directed to the Tribunal which had dealt with the above provision in the way contemplated by the respondent. No submissions of substance were made by the respondent as to whether, as a matter of statutory construction, the provision is available in the way contended for by the respondent. It seems to the Tribunal however, that the provision would not permit it to consider an additional complaint at such a late stage (at the end of proceedings during submissions) without the benefit of hearing further evidence on the issue if deemed necessary, and receiving full and comprehensive submissions from both parties addressing the issue: see for example, Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362 at [11] [62]. The respondent did not suggest that the Tribunal should or could adopt such a course, however, sub-section 3 of the Clause would appear to clearly contemplate this where it provides that the additional complaint may be dealt with by adjournment, "as is, in the opinion of the ... Tribunal just and equitable in the circumstances". The HCCC, in written submissions opposing the respondent's application, contended that if the Tribunal were minded to add a complaint of impairment there would need to be further hearing days for argument and evidence because procedural fairness would require that both parties be given notice and an appropriate amount of time to see the new proposed complaint and make submissions. These contentions appear largely consistent with the Tribunal's view of the construction of the provision.

80 There is a further and perhaps more compelling reason why the Tribunal is not minded to make protective orders in the terms proposed by the respondent. According to the respondent, the Tribunal ought to make an additional complaint regarding his impairment because the evidence, indicates that he has been dealing with an impairment for some time and, while that impairment is currently under control, it ought to be monitored through the Board's impairment programme.

81 The first part of the submission is uncontroversial. The second part of the submission falls into a different category. Whether the respondent's impairment is currently under control falls to be assessed not merely by reference to events immediately preceding the Tribunal hearing, but also at an earlier stage. The only evidence that the respondent's impairment is "under control" appears to come from the respondent. That this was the only source, was confirmed in closing submissions before the Tribunal. A question by the Tribunal directed to the respondent's counsel as to the evidence of the respondent's "current fitness" elicited the following response:

AINSWORTH: You have his own evidence. Plainly, his own evidence in relation to what he's been doing, the treatment he has been having, and his abstinence. I am getting now to what I am going to suggest the Tribunal would be the appropriate order for the Tribunal.

82 In cross-examination during the Tribunal proceedings, the respondent was asked whether his current state of mental health is better or worse than it was in 2007. He replied:

It is stable now but I cannot say it is better or worse".

83 He also said that he had been making "remarkable improvement" since consulting Dr Lal in 2007 but that his condition deteriorated and he had a relapse in July 2009.

84 The respondent's "relapse" in July 2009 was substantial. It also occurred in circumstances where he had been provided with support and assistance from the Board for some considerable period of time. His conditions of practice were being monitored. His performance was the subject of regular reviews. Dr Samuels recommended that the respondent be referred to the impaired registrant's programme. As a result of this recommendation, a Panel was convened on 13 August 2008 and a determination made that the respondent enter into the programme subject to a number of conditions, including health conditions which were clearly designed to assist the respondent to remain in practice and to monitor and review his progress. Dr Samuels was appointed by the Board to treat the respondent. Despite this network of support and the provision of a framework within which the respondent was allowed to continue to practice, the respondent chose to take part in illicit drug taking over a period of months. This not only breached the conditions of his practice, it also had the potential to adversely affect his physical and mental state.

85 Lancelot James Day, a consulting physician and cardiologist, treated the respondent over a number of years and most recently on 18 May 2009. Dr Day gave evidence during the Tribunal proceedings that prolonged use of cocaine was cardiotoxic. In relation to the effect of prolonged use of cocaine on blood pressure Dr Day said:

Well, it may be counteractive of the effects of antihypertensive drugs and therefore be as if he hadn't taken the antihypertensive drugs and raise the very blood pressure, and it can be directly cardiotoxic so you get heart failures, arrhythmias, risk of sudden death.

86 Dr Samuels gave evidence of the effects of cocaine use on persons with a bi-polar disorder, such as the respondent:

A. I think - more broadly, I think anyone who has any vulnerability to mood disorder or psychotic to use a stimulant drug, be it cocaine or methamphetamine or ay substance like that, is likely to have some exacerbation of their underlying condition. So if you have a tendency to a psychotic illness it is more likely you will become paranoid and hallucinate and develop those types of symptoms. If you have a mood disorder it's likely you will become depressed, but you may become even hypomanic because one of the side effects is sleep disturbability and patients with particularly bipolar disorder are quite vulnerable to sleep disturbances so, in short, this class of illicit substance are quite detrimental to any person with mental illness.

87 It is difficult for the Tribunal to reconcile the seriousness of the respondent's conduct and his apparent complete disregard for his own personal safety with the submission that it would be appropriate for the Tribunal to entertain an additional complaint of impairment in combination with conditions and a short period of suspension. The respondent was already on the impaired registrant's programme with its attendant network of support, monitoring and assistance as at July 2009. The programme, obviously, was unsuccessful. There is no reason provided as to why re-entering such a programme, with conditions, would, or could, operate as a set of appropriate protective orders. Given the respondent's conduct, from the end of July 2009, the Tribunal could not be satisfied that protective orders of the type sought would adequately address the need for the protection of the public, as well as maintain the standards of the medical profession.

88 Similar comments may be made with regard to the respondent's contention that it would be entirely appropriate to impose additional conditions upon his practice and that this measure (in addition to the respondent taking part in the Impaired Registrant's Programme) would protect the public, maintain professional standards, and be of assistance to him in his return to practice.

89 The Tribunal views the respondent's conduct very seriously. That conduct includes multiple breaches of conditions of practice commencing from the second s 66 Inquiry in 2006. Despite intervention from the Board on a number of occasions and despite the assistance sought to be rendered to the respondent to facilitate his continuing in practice, the respondent either could not or would not comply with his conditions over an extended period of time. Prior to the first s 66 Inquiry in 2002, the respondent had engaged in similar conduct for which he was again brought to the attention of the Board in 2006, that is, prescribing Schedule 8 and Schedule 4D drugs without prior authority. At the first s 66 Inquiry, the respondent was counselled and handed relevant literature for his assistance. When the respondent again came to the attention of the Board some four years later he would have been well aware of the standards under which he was required to act as a medical practitioner when prescribing drugs of addiction and restricted substances and of the importance of preparing and maintaining proper records of his prescribing, as well as of the need to obtain the proper authority under the Act.

90 The respondent was rendered further assistance by the facilitation of his entry into the Impaired Registrant's Programme in August 2008. To describe his conduct between July 2009 and 24 November 2009 as a "relapse" is an understatement. It showed a complete failure to appreciate or recognise the importance of discharging the responsibilities attendant upon his practice and the importance of abiding by the high professional standards to which every medical practitioner is expected to conform, as Dr Chung made clear in his report. Of even greater significance was the potential adverse impact of his conduct on members of the public, namely his patients, for whom he was responsible and to whom he had an abiding obligation to act in their best interests.

91 The Tribunal was also less than impressed by some of the respondent's explanations for his conduct.

92 In a signed statement dated 29 April 2009 the respondent said:

I continue to comply with all conditions imposed upon my Registration by the Board.

...

I can assure the Tribunal that I have developed insight into my behaviour. I am of the belief that I can continue to practice within the parameters of the conditions which are presently imposed upon my Registration as I believe I have shown that I can do since July 2006.

93 At the time this statement was signed, the respondent was in possession of both Schedule 8 and Schedule 4D drugs. He had been in possession for some considerable period of time up to 24 November 2009 when the police searched his home pursuant to a search warrant.

94 In a supplementary statement which the respondent agreed he signed on 1 February 2010, the respondent stated that he had "complied with the conditions of my good behaviour bond".

95 The respondent was placed on the bond under s 20(1)(a) of the Crimes Act 1914 (Cth) to be of good behaviour for three years commencing from 25 September 2007. During the currency of the bond, and for several months, the respondent possessed and used illicit substances, namely cocaine and, on one occasion, methamphetamine (or "methylamphetamine" as it was referred to in the police facts sheet). Such behaviour exhibits an obvious breach of the condition that he be of good behaviour. The respondent, in his evidence before the Tribunal, however, sought to excuse his behaviour. An extract from the transcript illustrates this point:

96 The Tribunal finds this evidence unconvincing. The respondent must have known that his possession and use of cocaine, for example, was illegal. Moreover, the respondent would have known that cocaine is also a drug of addiction listed under Schedule 8. It follows from these matters that the respondent must have known that his possession and use of cocaine during the period July 2009 to November 2009 was in breach of his bond.

97 The respondent's unscheduled visit to Dr Samuels on 15 July 2009 coincided with the period during which the respondent was in possession, in breach of his conditions, of Schedule 8 and Schedule 4D drugs. It also coincided with a period during which the respondent was self-medicating, that is, taking Xanax (a Schedule 4D restricted substance) to counteract the effects of his cocaine use. Notwithstanding these matters, when Dr Samuels addressed each of the respondent's prevailing conditions, the respondent told him that he did not have any Schedule 8 or Schedule 4D drugs in his possession, and that he was not "self-prescribing".

98 The respondent's failure to properly inform Dr Samuels of these matters when specifically asked about them reflects poorly on his understanding of the seriousness of his conduct and on his ability to properly discharge the functions of a medical practitioner, in particular where those functions concern the health and welfare of patients.

99 In closing submissions, the respondent's counsel sought to justify the cocaine usage on a number of stressors which included pending litigation and proceedings in the Medicare Participation Review Committee. If this accurately reflects the respondent's reasons for using an illicit substance over a period of several months, it also suggests an inability to cope under pressure which in turn does not inspire confidence that in the short term, at least, the respondent would be fit to continue the practice of medicine even under stringent conditions. A fortiori in circumstances where the respondent chose to take illicit substances capable of destabilising his bi-polar disorder and undermining his treatment regime by working against the effects of mood stabilising drugs as well as jeopardising his physical and mental health.

100 Taking into account all these circumstances, the Tribunal is not of the view that further conditions, however stringent, incorporating, for example, urine drug testing for such drugs as cocaine and Xanax are the appropriate vehicle for protective orders to be imposed on the respondent.

101 The same conclusion is warranted with regard to the suitability of a suspension order.

102 In written submissions, the respondent contended that the Tribunal ought impose a further period of suspension of three months from the date of its Decision to allow the respondent to continue with his efforts to improve his health and lifestyle. It was also contended that such an order would also address the "public protective and professional standards objects of the Act".

103 The Tribunal's attention was directed to s 61 of the Act as providing the power to make the protective orders sought by the respondent.

104 According to the HCCC, the source of the Tribunal's power to suspend, or de-register, a medical practitioner is found in s 64(1) of the Act. It was contended by the HCCC that an order for suspension is a fixed order and one that can be combined with s 61(1)(c) of the Act with an order for conditions such that once the period fixed for suspension is over the conditions will apply to the practitioner's registration. The HCCC's primary contention on this issue, however, was that an order for suspension was not appropriate and the appropriate legal means of achieving a result, agreed between the parties, that the respondent might return to practice at some time in the future, was an order that the respondent be de-registered pursuant to s 64(1) of the Act and an order that he not apply for a specified period pursuant to s 64(3) for a review of his de-registration (three years).

105 Section 61(1) of the Act provides:

(1) A Committee or the Tribunal may do any one or more of the following:

(a) caution or reprimand the person,

(b) order that the person seek and undergo medical or psychiatric treatment or counselling,

(c) direct that such conditions, relating to the person's practising medicine, as it considers appropriate be imposed on the person's registration,

(d) order that the person complete such educational courses as are specified by the Committee or Tribunal,

(e) order that the person report on his or her medical practice at the times, in the manner and to the persons specified by the Committee or Tribunal,

(f) order that the person seek and take advice, in relation to the management of his or her medical practice, from such persons as are specified by the Committee or Tribunal.

106 Section 64 is set out in full below:

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

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

(b) that the person is guilty of professional misconduct, or

(c) that the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside New South Wales, and the circumstances of the offence render the person unfit in the public interest to practise medicine, or

(d) that the person is not of good character.

(1A) The Tribunal must by order direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person) that the person has contravened an order or condition of the person's registration that is a critical compliance order or condition under section 61.

(2) An order that a person be deregistered is an order that the person's name be removed from the Register or (if the person has already ceased to be registered) that the person not be re-registered.

prohibition order

(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently,

(b) place such conditions as the Tribunal thinks appropriate on the provision of health services or specified health services by the person for the period specified in the order or permanently.

(2B) If the Tribunal is aware that a person in respect of whom it is proposing to make a prohibition order is registered under a health registration Act other than this Act, the Tribunal is, before making the prohibition order, to notify the board constituted under that other Act of the proposed order and give that board an opportunity to make a submission.

(3) An order may also provide that an application for review of the order under Division 3 of Part 6 may not be made until after a specified time.

107 The operation of s 61(1)(c) and s 64(1) allows for an order for suspension from the practice of medicine for a specified period combined with an order for the imposition of conditions on the practitioner's registration following the expiration of the period of suspension. As we have earlier observed, however, we regard such orders at this stage as an inappropriate reflection of the respondent's conduct and of the potential consequences of that conduct on the object of the Act which is to protect the health and safety of the public.

De-registration

108 This leaves consideration of the orders proposed by the HCCC for de-registration.

109 The respondent, as we have earlier observed, admitted in writing, the conduct the subject of the first and second complaints, including the particulars of those complaints. In relation to the Medicare complaint, the respondent admitted that he had been convicted of 63 counts (not 64 counts as particularised in the Complaint) of making a statement he knew to be false or misleading in a material particular. The HCCC concurred with the respondent that he had been convicted of 63 counts. He also admitted in oral evidence during the proceedings that he had engaged in unethical (and inappropriate) conduct, contrary to s 36(1)(m) of the Act. These admissions, together with the evidence (about which there was no dispute) and the findings we have made on that evidence constitute, in our view, unsatisfactory professional conduct within the meaning of s 36(1) of the Act.

110 The respondent also admitted in writing that his behaviour, the subject of the prescribing complaint would attract, "the serious criticism of his peers" and was conduct of a sufficient severity to justify a finding by the Tribunal that it constituted professional misconduct (under s 37 of the Act). The respondent also admitted the subject matter of the breach of conditions complaint, which was incorporated into the first complaint (originally the prescribing complaint only) by amendment on 9 April 2010.

111 It is the Tribunal's view that the evidence adduced during the proceedings in relation to the complaints, as well as the observations and findings we have made about the respondent's conduct (which need no repetition) justify the finding that that conduct in relation to both complaints amounts to professional misconduct within the meaning of s 37(b) of the Act.

112 At present, the respondent is undergoing a treatment regime involving regular drug and alcohol assessments. He was due to attend an appointment with Professor John Saunders on 3 May 2010 at his consulting rooms, Wesley Hospital, Kogarah. Professor Saunders is a Professor of Drug and Alcohol Studies and a Consultant Physician in Internal Medicine and Addiction Medicine. The respondent has also begun to see Dr Lal on a regular basis.

113 The Tribunal has alluded in some detail to the seriousness with which it views the respondent's conduct and the fact that it took place on a consistent basis over a lengthy period of time (in particular the prescribing complaint and the breach of conditions complaint). The respondent was also less than truthful to the Tribunal and to Dr Samuels with regard to the circumstances in which he breached his practice conditions and health conditions on multiple occasions. In this regard, we adopt and apply the observations of the Tribunal, differently constituted, in In Re Dr Ian McHue [2007] NSWMT 11 at [34]:

HCCC v Litchfield

Gayed v Walton

Bannister v Walton

In re Zaidi

114 The Tribunal is not confident that the respondent at this stage or in the near future is capable of properly discharging the responsibilities of his profession, bearing in mind the health and welfare of those patients who may be entrusted to his care, judgment and professional skills. The Tribunal also has serious misgivings that the respondent would at this stage maintain the high professional standards expected of a medical practitioner were he to be returned to practice in the short term. As Dr Chung, in his report, sought to make clear, the system surrounding the PTG Act assumes that medical practitioners will act with care in prescribing substances regulated by that Act. This includes matters pertaining to the rules and regulations for the prescribing, use, storage and proper recording of all drugs and poisons used and prescribed. The respondent had been made aware of the significance and importance of these matters in 2002. Despite this, he engaged in repetition of the impugned conduct for several more years until he was suspended from practice following the events of 24 November 2009.

115 In Spicer v New South Wales Medical Board & Ors ((unreported) NSW Court of Appeal, Thursday, 19/02/1981), Hope JA, with whom Reynolds and Huntley JJA agreed, observed (at 5, 6):

In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way which is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner.

116 The Tribunal endorses those observations as significant and relevant to the present proceedings.

117 We conclude therefore that, consistent with the object of protecting the public, the respondent ought be de-registered. His conduct involves professional misconduct within the meaning of s 37 of the Act. The Tribunal has considered the alternative orders proposed by the respondent, but for reasons earlier expressed considers such orders inappropriate. It is the Tribunal's view, given all the circumstances, that the respondent's name should be removed from the Register for a period of two years on and from the date of this Decision.

118 We should mention for completeness that the HCCC applied for a suppression order under s 161 and clause 6 of Schedule 2 of the Act. The order was sought in the following terms:

Medical Practice Act

119 The respondent consented to a suppression order made in the terms proposed by the HCCC. The Tribunal sees no good reason why the names of the patients (identified only by letters of the alphabet in the Complaints) should be published or that any information or other material that might identify any of the patients should be published. For these reasons, the Tribunal agrees to make a suppression order in the terms proposed.

Orders

120 The Tribunal makes the following orders:

(1) The name of the respondent be removed forthwith from the Register of Medical Practitioners and he not apply for re-registration as a medical practitioner for a period of two years from the date of this Decision.

(2) The respondent pay the complainant's costs.

___________________

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Citations

Health Care Complaints Commission v Dr Gopal Chandra Mukherjee [2010] NSWMT 11

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

3

Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362

In Re Dr Ian McHue [2007] NSWMT 11

Re Mansoor Haider Zaidi [2006] NSWMT 6

CITATION:	Health Care Complaints Commission v Dr Gopal Chandra Mukherjee [2010] NSWMT 11
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission (Complainant) Dr Gopal Chandra Mukherjee (Respondent)
FILE NUMBER(S):	40021 of 2008; 40025 of 2009
CORAM:	Backman J - de Carvalho, Dr V - Glass, Assoc Prof A - Yeo, Dr G
CATCHWORDS:	Deregistration
LEGISLATION CITED:	Medical Practice Act 1992 Poisons and Therapeutic Goods Act 1966 Poisons and Therapeutic Goods Regulation 2002
CASES CITED:	Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362; In Re Dr Ian McHue [2007] NSWMT 11; Spicer v New South Wales Medical Board & Ors (unreported, NSW Court of Appeal, CA 3 of 1981, 19 February 1981)
DATES OF HEARING:	8, 9, 10 February and 9 April 2010 Written submissions: 16 and 19 April 2010
DATE OF JUDGMENT:	7 October 2010
LEGAL REPRESENTATIVES:	COMPLAINANT: Mr B O'Donnell of counsel Health Care Complaints Commission (Mr S Cox) RESPONDENT: Mr M Ainsworth of counsel Unsworth Legal (Mr A Davey)
ORDERS:	Deregistration; not to apply for re-registration for 2 years from the date of the Decision.