Health Care Complaints Commission v Dr Jones
[2012] NSWMT 19
•01 August 2012
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Dr Jones [2012] NSWMT 19 Hearing dates: 30/07/2012-31/07/2012 Decision date: 01 August 2012 Jurisdiction: Civil Before: Elkaim SC DCJ
Dr J Kendrick
Dr E Kertesz
Dr C BerglundDecision: See paragraph 60
Catchwords: Unsatisfactory professional conduct and professional misconduct. Prescription of Schedule 8 and Schedule 4D drugs. Unsatisfactory record keeping. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Lee v Health Care Complaints Commission [2012] NSWCA 80Category: Principal judgment Parties: Health Care Complaints Commission (Complainant)
Dr Peter Edwin Jones (Respondent)Representation: C P O'Donnell (Complainant)
M G Ainsworth (Respondent)
Health Care Complaints Commission (Complainant)
Unsworth Legal (Respondent)
File Number(s): 40030/11 and 40003/12 Publication restriction: Yes
Judgment
The Health Care Complaints Commission ("HCCC") has made two complaints against Dr Peter Jones. The first is dated 30 August 2011. The second is dated 22 December 2011. A little confusingly each complaint is made up of two complaints called Complaint 1 and Complaint 2.
In a hopeful attempt to avoid confusion, the complaint dated 30 August 2011 will be referred to as the First Complaint and the complaint dated 22 December 2011 will be referred to as the Second Complaint. These two complaints are annexed to these reasons as Annexures 1 and 2 respectively.
The First Complaint is concerned with the improper prescription of certain drugs to seven patients and also with a failure to keep proper records. Complaint 1 within the First Complaint alleges that the doctor is guilty of unsatisfactory professional conduct within Section 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (the "National Law"). Complaint 2 in the First Complaint relies on the same particulars but asserts that the doctor has been guilty of professional misconduct within Section 139E of the National Law.
The Second Complaint concerns the writing of three post-dated prescriptions by Dr Jones for drugs of addiction or prescribed substances. The inference is that these prescriptions were written with the intention of defeating conditions that were likely to be placed on Dr Jones' continuing practice. Once again the Second Complaint alleges unsatisfactory conduct under Section 139B in Complaint 1 and professional misconduct under Section 139E in Complaint 2.
Dr Jones' background
Dr Jones was born in Newcastle, New South Wales, in 1949. In 1972 he graduated with a degree of MBBS from the University of New South Wales.
Dr Jones then carried out various residency requirements until 1977.
In 1977 he obtained Diplomas in Child Health and Obstetrics and Gynaecology in London. In October 1977 Dr Jones entered general practice in Wahroonga. In 1979 he started practising on the Central Coast at Umina Beach.
In March1981 restrictions were placed on Dr Jones' prescribing rights due to "over prescribing without authority". Prescribing rights were restored in October 1981. The only formal documents relating to this history are excerpts from the Government Gazette in April and October 1981. (Exhibit A, Tabs 33 and 34).
Dr Jones was asked about the 1981 events when he gave his oral evidence. He said that as a new doctor he had been targeted as someone from whom it was easy to obtain prescriptions. He said that the type of patients he was then seeing were different to those with whom he was concerned in 2008 and 2009 (ie the subjects of the first complaint). The Tribunal was concerned that Dr Jones had not learned the lesson from his former conduct but also takes into account that there were no complaints between 1981 and 2008.
The other significant difference, according to Dr Jones, was that the patients dealt with in the First Complaint appeared to be in genuine pain and have real mental status issues. This was, in fact, a theme through Dr Jones' evidence, namely that he was principally motivated by his empathy for the patients' predicaments.
Dr Jones spent two years from 1982 working as a general practitioner in Hong Kong. He returned to Umina Beach in 1984.
In 2007 Dr Jones and his then partner (now wife) were involved in a serious motor vehicle accident in the United States of America. Dr Jones suffered fractures to both legs and his left arm. He returned to work, initially in a wheelchair, after about 9 weeks. He said this was generated in part by the medical bills that had been incurred in the USA. His partner's injuries were more extensive and have involved extensive surgical intervention. More surgery is envisaged.
Dr Jones was asked about the medical expenses that arose from the motor vehicle accident during his oral evidence. The Tribunal is of the view that his evidence was unsatisfactory. Dr Jones said that in about 2008 he received a payout from a suit commenced in the USA arising from the motor vehicle accident. He gave this evidence:
"Q. Any legal proceedings come out of that accident, civil or criminal?
A. No. We did sue the driver of the other vehicle, yes, to but through American lawyers.
Q. Did that result in anything or?
A. Yes, it resulted in some pay out and coverage of our multiple fees that we had over there but we had considerable large considerably large hospital bills which just wouldn't have been covered otherwise; they weren't covered by the travel insurance.
Q. But were they covered by the pay out?
A. They were covered by the law suit, yes." (T 8.22)
This evidence is inconsistent with the contents of his statement dated 9 August 2010 in which, at paragraph 48, he says:
"The medical expenses associated with the accident, including medical care overseas and in Australia for both me, but more so for my wife, have caused extreme financial hardship. Whilst we had travel insurance, it has not been sufficient to cover the ongoing medical treatment that my wife requires. Accordingly, it would be extremely burdensome on me and my family if I were unable to work." (Exhibit 1, Tab 3).
From October 2010 and continuing to the present day Dr Jones has been in general practice at the Wyoming Medical and Dental Centre in Wyoming.
Earlier proceedings
Dr Tony Webber carried out a Professional Services Review on referral from Medicare Australia. Dr Webber's report is dated 1 June 2010 (Exhibit A, Tab 36). It was sent to the Medical Council which, consequently, wrote to Dr Jones informing him that it had decided to hold proceedings under Section 150 of the National Law. The proceedings were held on 11 August 2010 and resulted in the imposition of Practice Conditions and a Health Condition on Dr Jones' registration.
The formal decision is dated 9 September 2010 (Exhibit A, Tab 30B).
The most significant of the Practice Conditions was that Dr Jones was required to surrender his authority to deal with any Schedule 8 drug or any Schedule 4D drug or derivative. In addition, he was required to complete a course on "issues and general practice prescribing". The Health Condition required Dr Jones to consult and be treated by a general practitioner.
Dr Jones has completed the above course.
Following the Section 150 proceedings Dr Jones signed statements agreeing to the orders in respect of the Schedule 8 and Schedule 4D conditions.
Dr Jones' response to the First Complaint
Dr Jones has made two statements. The first, dated 9 August 2010, is behind Tab 3 in Exhibit 1. The second, dated 29 February 2012, is behind Tab 1 of the same exhibit.
In the above two statements Dr Jones gives explanations for his conduct. However, he does not dispute any of the alleged facts and he accepts that he has been guilty of both unsatisfactory professional conduct and professional misconduct as alleged. On the basis of these admissions and having regard to the evidence generally, the Tribunal finds the First Complaint (comprising Complaint 1 and Complaint 2) has been proven to the necessary standard. This standard is the balance of probabilities but applied as stipulated in Briginshaw v Briginshaw (1938) 60 CLR 336.
In his statements Dr Jones not only admits his wrongdoing but expresses his remorse. He concludes his second statement in this way:
"I can indicate to the Medical Tribunal that I am truly contrite for my behavior, the subject of this Complaint. Whilst I did not see it at the time in question, I now readily accept my prescribing was inappropriate. I am keen to make amends for my conduct and I am of the view I still have much to offer the patient population of the Central Coast of NSW."
Dr Jones' response to the Second Complaint
Dr Jones' response is set out in a statement dated 29 February 2012. It is in Exhibit 1 behind Tab B1. In this statement Dr Jones admits that his activities amount to unsatisfactory professional conduct. He did not, however, admit that he had been guilty of professional misconduct.
At the commencement of final addresses counsel for Dr Jones indicated that his client now accepted that he had been guilty of professional misconduct. The Tribunal observes that on the evidence before it this concession was essentially an admission of an inevitable result.
In his statement Dr Jones says that it was not his normal practice to issue post-dated prescriptions but he did so "for three of my regular patients because I was concerned that they may not be able to arrange to consult with another practitioner within a reasonable timeframe and I was concerned to ensure that they had sufficient medication to enable them to find a new general practitioner and seek to prevent those patients from experiencing serious withdrawal symptoms."
It is to be recalled that the three prescriptions in question were written two days before the Section 150 proceedings. The inference is that they were post-dated to defeat what Dr Jones would have regarded as the likely result of the proceedings, namely that he would no longer be able to write prescriptions in respect of the same types of medication. Dr Jones' explanation is essentially one that says: 'I did the wrong thing but did so for the benefit of the patients'.
Once again, on the basis of the admissions and the evidence before it, the Tribunal is satisfied that Dr Jones was guilty of unsatisfactory professional conduct under Section 139B of the National Law and of professional misconduct under Section 139E.
Orders: First Complaint
As a general and introductory statement, the Tribunal is aware that any orders made should not be punitive; they should be protective of the public and of the medical profession.
The Tribunal considers it appropriate for separate orders to be made for each of the complaints. This is to reflect the Tribunal's view that the First Complaint is concerned with issues of practice whereas the Second Complaint more relates to acts of inappropriate conduct.
Dr Jones submitted that he should be allowed to continue to practise but only on the basis of conditions on his registration. He is supported by Dr Westmore, a psychiatrist, who suggests a number of conditions that would "reduce and probably eliminate his propensity for re-offending." (Exhibit 1, Tab 5).
Dr Caska is a general practitioner also practising on the Central Coast. In his letter of 6 March 2012 he highlights the absence of local facilities for the treatment of addicted patients. He refers to the stresses that Dr Jones has endured following his motor vehicle accident and talks of his "highest regard for Dr Jones' character and professionalism". Perhaps most importantly he concludes: "It would be a great loss to patients in this under doctored area to lose the skills and services of such an experienced and competent doctor".
Dr Chandramohan, a general practitioner in Wyoming, makes this point, concerning re-offending, in his letter dated 1 February 2012:
"Possibly his caring attitude and the pressure of working in a solo practice is what led up to this situation, however, he now has the support of multiple Doctors and therefore less pressure from patients."
Dr Mala expresses a similar sentiment in his report of 28 February 2012. He concludes:
"Certain patients can be intimidating and when you don't have the immediate support of colleagues around you it can lead to exactly this type of situation."
There are other character references in Dr Jones' material but the most significant points have been made above.
In order to appreciate the seriousness and extent of Dr Jones' conduct it is necessary to refer to the unchallenged opinion of Dr Byrne, the drug and alcohol expert retained by the HCCC to provide an opinion. Dr Byrne's report is in Exhibit A behind Tab 13.
In relation to Dr Jones' handwritten medical notes he says they are "of a poor quality". Notwithstanding this observation, Dr Byrne says that the notes did contain certain warnings that were ignored by Dr Jones. Dr Byrne says: "Each of these entries should have acted as a beacon that his patients need treatment for their dependency rather than continued access to unsupervised drugs on request".
A little later, Dr Byrne says:
"On reading Dr Jones' medical records concerning patients being prescribed quantities of benzodiazepines and opioids, one rarely reads any indication of insight into the patient's need for the most basic elements of either psychological approaches nor of addiction medicine. While the former would include mood evaluation, cognitive behavioural approaches, focussed counselling and possibly pharmacotherapy, the latter should include simple measures such as pharmacy supervised medication, urine testing, examination of common injection sites, discussions with the patient's pharmacist, Health Department facilities for identifying such patients (PSB authorities phone-line NSW Health; Doctor Shopping Hotline; Medicare Australia), etcetera."
Dr Byrne's criticism of Dr Jones' record keeping is thus both a condemnation of the records themselves as well as Dr Jones' failings in appreciating the significance of the even simple and unsatisfactory records.
In his report Dr Byrne examines material in relation to each of the patients who are the subject of complaint. The level of criticism is different in respect of each patient but in some cases it is very strident. For example, in respect of Patient B Dr Byrne says:
"It is my belief that most doctors of good repute in New South Wales would agree that the prescribing to [Patient B] during this period of 2008/9 was grossly negligent and irresponsible."
When dealing with Patient G, Dr Byrne says that Dr Jones' treatment was "highly inappropriate and dangerous ...". Dr Byrne continues a little later:
"In this case Dr Jones either knew or ought to have known that the patient was an addicted person. Prescribing should therefore have been very limited (if at all) while the patient was referred to a drug clinic, community health, pain clinic, psychiatry or other services. Even if this patient were not addicted, it is still illegal to supply methadone for longer than 2 months without written authority."
Dr Byrne was not required for cross-examination. His analysis and his opinion were therefore not challenged. To say of a doctor that his treatment is dangerous and his practices are grossly negligent must raise a high degree of concern if that doctor is treating members of the public.
On the basis of the above there is an arguable case for deregistration.
At the outset of the hearing, counsel for the HCCC was asked what orders would be advocated by the HCCC. He replied:
"Essentially the position is that suspension or deregistration would be open but it would appear to be a case where conditions could accommodate the outcome appropriately, if I could put it that way."
In addition, having had the opportunity to take further instructions at the end of the evidence, counsel did not signal any change in the HCCC's position. The Tribunal is mindful that it has the capacity to impose orders that exceed (in severity) those sought by the HCCC but should not do so lightly.
On Dr Jones' side, the following considerations are relevant:
(a) The doctor's most serious failings arise from his prescription of Schedules 8 and 4D drugs. If he is not allowed to prescribe these drugs his capacity to harm is removed.
(b) Dr Jones otherwise has glowing references concerning his attributes as a doctor and his treatment of his patients.
(c) Practising in a group practice removes many of the stresses and temptations to which Dr Jones was otherwise susceptible.
(d) The Central Coast is in need of doctors. The area should not be unnecessarily deprived of a doctor with a long association to the area and intent on remaining a local doctor.
(e) Conditions could be tailored to reduce the risk of re-offending and ensuring the proper keeping of records.
(f) The HCCC did not require Dr Westmore for cross-examination and did not put forward any opinion challenging Dr Westmore's view that Dr Jones be allowed to practise with conditions.
Ultimately the Tribunal's decision must be dictated by whether it would be to the benefit of the public to deregister Dr Jones or, alternatively, allow him to continue to practice with conditions.
The opinion of the Tribunal, reached it should be said with some hesitation, is that Dr Jones should be allowed to continue to practise but subject to conditions.
The Tribunal asked the parties to consider proposed conditions so as to create a workable regime. The Tribunal has made some changes to the proposed conditions where it felt they were needed to ensure the protection of the public. The parties were given the opportunity to address changes suggested by the Tribunal to the conditions.
The Tribunal's view is that the conditions should include both on site supervision together with mentoring by another general practitioner not involved in the same practice.
The conditions are those set out in Annexure 3 to these reasons.
Orders: Second Complaint
Dr Jones sought to justify his actions on the basis that he was motivated by his concern for the patients. However, there is a further element to his actions which needs to be dealt with, in particular as Dr Jones did not appropriately deal with it himself.
Dr Jones relies on a report from Dr Westmore (Exhibit 1, Tab 5) which includes the following passages of history:
"I asked him had there been any "breaches" in his prescribing behaviour since his prescribing rights were removed. He said "there have been several issues". Dr Jones then told me that prior to him being advised that he could not prescribe certain medication, he had for several patients, "fore dated scripts". He said he had done that not because he knew or believed that he was going to lose his prescribing rights, but he did that for the patient's "convenience" and so that the patients could have some control over their medication and use of medication."
Dr Jones did not dispute the accuracy of the history given to Dr Westmore. It clearly omits Dr Jones' obvious appreciation at the time that he faced a real possibility that restrictions would be imposed on his rights to prescribe on 11 August 2010.
When writing the three prescriptions he was aware that post-dating prescriptions was not allowed and he was aware of the possibility just outlined above.
The Tribunal is satisfied that there was a degree of intent to circumvent not only the bar on post-dating prescriptions but also on the possible imposition of restrictions. The Tribunal is of the view that this is particularly serious conduct and amounts to professional misconduct as alleged in Complaint 2 of the Second Complaint.
The Tribunal is of the view that the orders for this complaint should include a deterrent factor. This arises from the Tribunal's finding that Dr Jones deliberately ignored the bar on post-dating prescriptions as well as attempting to circumvent the likely imposition of restrictions on his prescription rights.
A fine of $10,000 is considered the appropriate order.
The Tribunal is also of the view that Dr Jones conduct was such as to require that he be reprimanded in respect of both complaints.
The Tribunal makes the following orders:
(1) The Practitioner is reprimanded in respect of both complaints.
(2) The Practitioner is subject to conditions on his registration as set out in Annexure 3 to these reasons.
(3) 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.
(4) Dr Jones is fined $10,000 in respect of the Second Complaint. Payment is to be made to the Medical Council of NSW within 90 days of these orders.
(5) The practitioner is to pay the complainant's costs in the proceedings.
ANNEXURE 1
NO. of
IN THE MEDICAL TRIBUNAL
OF NEW SOUTH WALES CONSTITUTED
UNDER SECTION 165 OF THE HEALTH
PRACTITIONER REGULATION NATIONAL
LAW (NSW)
IN THE MATTER OF DR PETER EDWIN JONES,
a person registered under the Health Practitioner
Regulation National Law (NSW)
NOTICE OF COMPLAINT
TAKE NOTICE THAT the Medical Tribunal of New South Wales has received a complaint from the Health Care Complaints Commission following a consultation with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law NSW ("the National Law")
THAT:
Dr Peter Edwin Jones of XXX Umina NSW 2257 ("the practitioner"), being a medical practitioner registered under the National Law,
COMPLAINT ONE
is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a) of the National Law in that he has demonstrated that the knowledge or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and has contravened the Medical Practice Regulation 2008 (repealed).
PARTICULARS
At all relevant times the practitioner was a General Practitioner practicing in a solo practice at Umina, New South Wales.
Patient A
Between 10 October 2008 and 7 September 2009 the practitioner prescribed benzodiazepines for Patient A on the dates and quantities set out in schedule A without exercising responsible medical judgement.
Between 10 October 2008 and 29 September 2009 the practitioner prescribed Patient A alprazolam 2mg x 50 on sixteen occasions and diazepam 5mg x 50 on fourteen occasions in a quantity and for a purpose that did not accord with the recognized therapeutic standard of what is appropriate in the circumstances in contravention of clause 54 of the Poisons and Therapeutic Goods Regulation 2008.
Patient B
Between 10 November 2008 and 28 September 2009 the practitioner prescribed benzodiazepines and narcotics to Patient B on the dates and quantities set out in schedule B without exercising responsible medical judgement.
Between 10 November 2008 and 28 September 2009 the practitioner prescribed Patient B alprazolam 2mg x 50 on four occasions and diazepam 5mg x 50 on ten occasions and oxazepam on thirty-seven occasions in a quantity and for a purpose that did not accord with the recognized therapeutic standard of what is appropriate in the circumstances in contravention of clause 54 of the Poisons and Therapeutic Goods Regulation 2008.
Between 26 February 2009 and 17 April 2009 the practitioner prescribed Patient B oxycodone 40mg x 20 on six occasions in a quantity and for a purpose that did not accord with the recognized therapeutic standard of what is appropriate in the circumstances in contravention of clause 79 of the Poisons and Therapeutic Goods Regulation 2008.
Between 25 February 2009 and 7 September 2009 the practitioner prescribed Patient B oxycodone 80mg x 20 on thirty occasions in a quantity and for a purpose that did not accord with the recognized therapeutic standard of what is appropriate in the circumstances in contravention of clause 79 of the Poisons and Therapeutic Goods Regulation 2008.
Patient C
Between 13 October 2008 and 30 September 2009 the practitioner prescribed benzodiazepines and narcotics to Patient C on the dates and quantities set out in schedule C without exercising responsible medical judgement.
Between 13 October 2008 and 30 September 2009 the practitioner prescribed Patient C, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 80mg on one hundred and nineteen occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966.
Between 23 June 2009 and 30 September 2009 the practitioner prescribed Patient C, a person whom he knew was a drug dependent person, a a type C drug of addiction, namely fentanyl 12.5 mg patches x 5 on twenty-nine occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966.
Between 23 February 2009 and 25 September 2009 the practitioner prescribed to Patient C alprazolam 2mg x 50 on seven occasions in a quantity and for a purpose that did not accord with the recognized therapeutic standard of what is appropriate in the circumstances in contravention of clause 54 of the Poisons and Therapeutic Goods Regulation 2008.
Patient D
Between 13 October 2008 and 30 September 2009 the practitioner prescribed benzodiazepines and narcotics to Patient D on the dates and quantities set out in schedule D without exercising responsible medical judgement.
Between 2 October 2008 and 30 September 2009 the practitioner prescribed Patient D, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 40mg x 20 on twenty-nine occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966.
Between 8 September 2009 and 15 September 2009 the practitioner prescribed Patient D, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 80mg x 20 on two occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966.
Between 9 March 2009 and 25 September 2009 the practitioner prescribed to Patient D, alprazolam 2mg x 50, on ten occasions in a quantity and for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances in contravention of clause 54 of the Poisons and Therapeutic Goods Regulation 2008.
Patient E
Between 13 October 2008 and 30 September 2009 the practitioner prescribed benzodiazepines and narcotics to Patient E on the dates and quantities set out in schedule E without exercising responsible medical judgement.
Between 13 October 2008 and 30 September 2009 the practitioner prescribed Patient E, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 20mg x 20, on fifty-three occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966.
Between 13 October 2008 and 30 September 2009 the practitioner prescribed Patient E, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 40mg x 20, on six occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966.
Between 24 November 2008 and 30 September 2009 the practitioner prescribed Patient E, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 80mg x 20, on fifty-seven occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966.
Between 9 March 2009 and 12 September 2009 the practitioner prescribed to Patient E alprazolam 2mg x 50 on ten occasions in a quantity and for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances in contravention of clause 54 of the Poisons and Therapeutic Goods Regulation 2008.
Patient F
Between 13 October 2008 and 14 January 2009 the practitioner prescribed benzodiazepines and narcotics to Patient F on the dates and quantities set out in schedule F without exercising responsible medical judgement.
Between 4 November 2008 and 12 January 2009 the practitioner prescribed to Patient F, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 20mg x 20 on six occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966.
Between 18 November 2008 and 14 January 2009 the practitioner prescribed to Patient F, a person whom he knew was a drug dependent person, a type C drug of addiction, namely oxycodone 40mg x 20 on four occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966.
Between 22 October 2008 and 17 November 2009 the practitioner prescribed to Patient F, a person whom he knew was a drug dependent person, a type C drug of addiction, namely morphine sulphate 30mg x 20 on two occasions without an authority issued by the Department of Health in contravention of section 28(3) of the Poisons and Therapeutic Goods Act 1966.
Between 20 October 2008 and 5 January 2009 the practitioner prescribed to Patient F clonazepam 2mg x 200 on two occasions for a purpose that did not accord with the recognized therapeutic standard of what is appropriate in the circumstances in contravention of clause 54 of the Poisons and Therapeutic Goods Regulation 2008.
Between 20 September 2008 and 5 January 2009 the practitioner prescribed to Patient F oxazepam 30mg x 25 on six occasions for a quantity and for a purpose that did not accord with the recognized therapeutic standard of what is appropriate in the circumstances in contravention of clause 54 of the Poisons and Therapeutic Goods Regulation 2008.
Patient G
Between 1 October 2008 and 29 September 2009 the practitioner prescribed benzodiazepines and narcotics to Patient G on the dates and quantities set out in schedule G without exercising responsible medical judgement.
Between 15 October 2008 and 29 September 2009 the practitioner prescribed to Patient G a type B drug of addiction, namely morphine sulphate injections 30mg in 1 mL x 5, on one hundred and sixty-one occasions for a period exceeding two months without an authority issued by the Department of Health, in contravention of section 28(2)(a) of the Poisons and Therapeutic Goods Act 1966.
Between 18 September 2008 and 30 September 2009 the practitioner prescribed to Patient G, a type B drug of addiction, namely Physeptone (methadone) 10mg x 20 on five occasions and 10mg x 10 on one hundred and thirty-eight occasions without an authority issued by the Department of Health for a period exceeding two months, in contravention of section 28(2)(a) of the Poisons and Therapeutic Goods Act 1966.
Between 18 September 2008 and 29 September 2009 prescribed Patient G a combination of physeptone (methadone), morphine oral solution 200ml (5mg/ml)) and morphine sulphate injections in quantities and/or for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances in contravention of clause 79 of the Poisons and Therapeutic Goods Regulation 2008.
Medical Records
The practitioner failed to keep proper medical records for Patients A to G in accordance with the requirements of the Medical Practice Regulation 2008 (now repealed).
COMPLAINT TWO
Has been guilty of professional misconduct within the meaning of section 139E of the National Law (NSW) in that he has:
(i) Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and/or
(ii) Has engaged in unsatisfactory professional conduct on a number of occasions which, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration.
PARTICULARS OF COMPLAINT TWO
Particulars 1-30 above are relied upon and repeated
Dated this 30th day of August 2011
Karen Mobbs
Director of Proceedings
Health Care Complaints Commission
ANNEXURE 2
NO. of
IN THE MEDICAL TRIBUNAL
OF NEW SOUTH WALES CONSTITUTED
UNDER SECTION 165 OF THE HEALTH
PRACTITIONER REGULATION
NATIONAL LAW (NSW)
IN THE MATTER OF DR PETER EDWIN JONES,
a person registered under the Health Practitioner
Regulation National Law (NSW)
NOTICE OF COMPLAINT
TAKE NOTICE THAT the Medical Tribunal of New South Wales has received a complaint from the Health Care Complaints Commission following consultation with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law ("the National Law") THAT Dr Peter Edwin Jones ("the practitioner"), XXX Wyoming NSW 2250, being a medical practitioner registered under the National Law
COMPLAINT ONE
Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has:
(i) demonstrated the judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession 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.
PARTICULARS OF COMPLAINT ONE
At all relevant times the practitioner was working as a general practitioner in a sole practice at XXX Umina.
On 1 June 2010 the Medical Council of NSW received information from the Professional Services Review alleging that the practitioner had engaged in prescribing practices which posed a significant threat to the life or health of other people.
On 30 July 2010 the Medical Council of New South Wales wrote to the practitioner and advised him that the Council had determined to hold proceedings under section 150 of the National Law to determine whether any action should be taken, either suspending or placing conditions upon his practice.
On 9 August 2010 the practitioner's legal representative wrote to the Medical Council, enclosing a statement that the practitioner intended to rely upon at the section 150 proceedings.
On 9 August 2010 the practitioner wrote a prescription dated 13 August 2010 for Patient A for 20 10mg tablets of Physeptone, a drug of addiction, contrary to:
(a) Clause 19(1)(c) of the National Health (Pharmaceutical Benefits) Regulations 1960
(b) Clause 35(1)(a) of the Poisons and Therapeutic Goods Regulation 2008.
On 9 August 2010 the practitioner wrote a prescription dated 20 August 2010 for Patient B for 25 5mg Nitrazepam tablets, a prescribed restricted substance, contrary to:
(a) Clause 19(1)(c) of the National Health (Pharmaceutical Benefits) Regulations 1960
(b) Clause 35(1)(a) of the Poisons and Therapeutic Goods Regulation 2008.
On 10 August 2010 the practitioner wrote a prescription dated 1 September 2010 for Patient C for 2 5mg Buprenorphine Transdermal patches, contrary to:
(a) Clause 19(1)(c) of the National Health (Pharmaceutical Benefits) Regulations 1960
(b) Clause 35(1)(a) of the Poisons and Therapeutic Goods Regulation 2008.
COMPLAINT TWO
is guilty of professional misconduct under section 139E of the National Law in that the practitioner has
(i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or
(ii) engaged in more than one instance of unsatisfactory professional conduct that when the instances are considered together amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
PARTICULARS OF COMPLAINT TWO
As for Complaint One
Dated 22 December 2011
Karen Mobbs
Director of Proceedings
Health Care Complaints Commission
ANNEXURE 3
In the Medical Tribunal of New South Wales
HCCC v Dr Peter Edwin Jones
Practice (Public) Conditions
The Tribunal makes an order that the practitioner's registration be subject to the following conditions:
To not prescribe, possess, supply, administer, handle or dispense any drug of addiction (Schedule 8 drugs) or any prescribed restricted substance (Schedule 4D drug or Schedule 4D derivative).
(a) Unless this has already occurred, to attend the offices of the Pharmaceutical Services Branch of the NSW Department of Health within two weeks of this decision and surrender his authority to have possession of, prescribe, supply, dispense, administer or handle any drug of addiction (Schedule 8 drugs) or any prescribed restricted substance (Schedule 4D drug or Schedule 4D derivative).
(b) Any future change in his Schedule 8 or Schedule 4D authority must be in accordance with the Medical Council's protocol. This must include consultation with the Medical Council of NSW prior to the submission of any variation application to the Pharmaceutical Services Branch.
To practise only in a group general practice (group is defined as at least 3 practitioners) with at least one other medical practitioner always on site, or such other position for which he has obtained the Medical Council's prior written approval.
The Tribunal orders that contravention of Conditions 1(a) or 2 will result in the practitioner's registration being cancelled. Conditions 1(a) and 2 are therefore Critical Compliance Conditions.
To practise only under supervision in accordance with Clause 5 below.
To nominate a supervisor to be approved by the Council to monitor and review Dr Jones' clinical practice and compliance with Practice Conditions in accordance with Level 2 Supervision as contained in the Council's Guidelines for Supervision (Policy PCH 7.5). 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 Jones is to be responsible for all costs associated with the supervision arrangement. Dr Jones 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.
Within 21 days of the date of the receipt of this Decision, the practitioner is to provide the Medical Council of NSW the name and professional address of a registered medical practitioner who has agreed to act as his mentor. The mentor is to be independent of the practice within which the practitioner is working and must be approved by the Council. The nature and frequency of contact with the mentor is to be determined by the mentor in accordance with the Medical Council of NSW's Guidelines for Mentors (Policy PCH 10.1), however contact should include face-to-face contact for at least 2 hours on a monthly basis for at least the first 6 months. The practitioner is to:
(a) provide the mentor with a copy of the Tribunal's Decision and these conditions prior to the mentoring arrangement commencing
(b) ensure that mentoring sessions include discussion of issues highlighted in this Decision, personal and/or medical practice issues as they arise and professional development as a medical practitioner (including relevant CME activities)
(c) authorise the mentor to report, in an approved format, to the Medical Council of NSW every three months about the fact of contact, and to inform the Council if there is any concern about his/her professional conduct
(d) authorise the mentor to notify the Medical Council of NSW if there is any failure to attend, termination of the mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate
(e) participate in the mentor arrangements for an initial period of 18 months and thereafter for such period as the Medical Council of NSW may determine
(f) authorise the mentor to notify the Medical Council of NSW when of the view that professional mentoring is no longer required
(g) in the event that the approved mentor is no longer willing or able to continue as mentor, nominate another mentor for approval by the Medical Council of NSW within 21 days of the cessation of the original mentor relationship
(h) be responsible for any costs associated with the mentoring process.
To submit to an audit, at his work premises, of a random selection of his medical records by a person or persons nominated by the Medical Council of NSW, to assess his compliance with relevant provisions of the Health Practitioner Regulation (New South Wales) Regulation 2010 and the RACGP's Standards for General Practice (4th Edition), in particular Standard 1.7 'Content of Patient Health Records'. The audit is to occur within 4 months from the date of this Decision and subsequently at 6 monthly intervals, or as required by the Medical Council of NSW. The practitioner is to authorise the auditor/s to provide the Medical Council of NSW with a report on his/her/their findings. The practitioner is to meet all costs associated with the audit/s and any subsequent reports.
To authorise and consent to any exchange of information between the Medical Council of NSW, Medicare Australia and the Pharmaceutical Services Branch where such exchange is necessary to facilitate the monitoring of compliance with these conditions.
Health Related (Private) Conditions
To attend for treatment by a general practitioner of his choice, at a frequency to be determined by him and the treating general practitioner. He is to advise the Medical Council of the name of his general practitioner within 2 weeks and is to authorise the treating general practitioner to inform the Medical Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status.
Review of conditions
The Medical Council of NSW is the appropriate review body for the purpose of a review under Part 8 Div 8 of the Health Practitioner Regulation National Law (NSW).
However, should the practitioner seek to change or remove any of the conditions imposed as a result of this Tribunal's orders when his principal place of practice is anywhere in Australia other than in New South Wales, sections 125 to 127 inclusive of the Health Practitioner Regulation National Law are to apply, so that a review of these conditions can be conducted by the Medical Board of Australia.
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Decision last updated: 03 August 2012
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