Health Care Complaints Commission v Dr Mazzaferro
[2011] NSWMT 9
•31 August 2011
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 Hearing dates: 3 and 4 August 2011 Decision date: 31 August 2011 Before: Kavanagh J; Dr R Gordon; Dr V Sutton; Ms H Kiel Decision: 1. Dr Mazzaferro is guilty of unsatisfactory professional conduct in that, in the exercise of his medical practice, his knowledge, skill, judgement and care were significantly below the standard expected of a practitioner; he breached the Medical Practice Act 1992 and he engaged in improper conduct.
2. We therefore order in Dr Mazzaferro's practice of medicine:
(i) He is not to possess, prescribe, supply, dispense or administer Schedule 4 Appendix D drugs or Schedule 8 drugs of addiction.
(ii) He is not to prescribe Panadeine Forte in excess of therapeutic guidelines.
(iii) He is to undertake continuing professional development (CPD) activities with a focus on boundary issues.
(iv) He is to nominate an independent supervisor within the next 28 days, to be approved by the Council, to monitor and review his clinical practice and compliance with these Practice Conditions in accordance with Level 2 Supervision as contained in the NSW Council's Policy for Supervision for a period of one (1) year. The supervisor is to be provided with a copy of the Policy and the Medical Tribunal's decision. He is to ensure that:
(a) He and the supervisor meet on a monthly basis for at least one hour, the first meeting to occur within one month of being advised by the NSW Medical Council that his nominated supervisor has been approved.
(b) At each meeting they address each patient follow up, boundary issues, assertiveness skills, overall patient care and management, substance abuse, appropriate prescribing practices and appropriate referral.
(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 Board/Council, on a quarterly basis, a Supervision report in a format prescribed or approved by the Board/Council.
(e) He authorises the Supervisor to inform the Council immediately if there is any concern in relation to his compliance with the supervision requirements, compliance with other conditions of registration, clinical performance, or if the supervisor relationship ceases.
(f) In the event that the approved independent supervisor is no longer willing or able to provide the supervision required, details of a replacement independent supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship.
(g) He is responsible for all costs associated with the supervision arrangement.
(v) He is to consent to the exchange of data between the Council, Medicare Australia and Pharmaceutical Services Branch where required in order to facilitate monitoring of his compliance with these Conditions.
(vi) He is to treat no more than 175 patients in any one week and an average of no more than 35 in any one day including home visits but excluding nursing home visits.
3. The respondent shall pay the complainant's costs.
Catchwords: Doctor charged with failure to seek appropriate approval for prescribing Schedule 4D and Schedule 8 drugs; prescribing narcotics and other drugs to drug dependent patients; failure to keep proper medical records; doctor's treatment of some five patients considered - some factual allegations by HCCC not established - doctor guilty of unsatisfactory professional conduct - limitation placed on doctor's power to prescribe Schedule 8 and Schedule 4D drugs and Panadeine Forte - number of patients to be seen on average in one day and one week - appointment of an independent supervisor - orders accordingly. Legislation Cited: Health Care Complaints Act 1993 (NSW)
Medical Practice Act 1992 (NSW)
Poisons and Therapeutic Goods Act 1966 (NSW)Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Director-General, Department of Community Services; re Sophie [2008] NSWCA 250
HCCC v Gayed [2009] NSWMT 4
Kalil v Bray (1977) NSWLR 256; Kalil v Bray [1977] 1 NSWLR 256
Latoudis v Casey [1990] 170 CLR 534
OHN v Walton (1995) 36 NSWLR 77
Re A Medical Practitioner and the Medical Practice Act (unreported,3 September 2007)Category: Principal judgment Parties: Health Care Complaints Commission (Complainant)
Dr A J Mazzaferro (Respondent)Representation: J Kelly (Complainant)
G Furness SC (Respondent)
Health Care Complaints Commission (Complainant)
Avant (Respondent)
File Number(s): MT40001 of 2010
Judgment
The Health Care Complaints Commission ("the Complainant" or "the HCCC") brings before the Tribunal a complaint brought following consultation with the New South Wales Medical Board ("the Board") in accordance with ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 and s 51(1) of the Medical Practice Act 1992 ("the Act") against Dr Angelo Mazzaferro ("the respondent") being a medical practitioner registered under the Act.
The complaint alleges, in the following terms, that the respondent:
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 and
(ii) breached the Medical Practice Regulation 1998 and Medical Practice Regulation 2003 and (iii) engaged in improper conduct relating to the practice or purported practice of medicine.
The particulars pleaded in relation to the complaint are lengthy and complex. They relate to Dr Mazzaferro's continued practices of prescribing schedule 8 and 4D drugs to five named patients, his failure to obtain the appropriate authority to issue such schedule 8 and 4D drugs and his failure to keep the proper medical records. There is also an allegation he conducted some consultations outside the ethical boundaries required of a medical practitioner.
History
Dr Mazzaferro graduated with a MBBS degree from the University of Sydney in 1974. Following his internship and residency at St George Hospital, he did a two term secondment at the Sutherland District Hospital and a two term secondment at the General Practice of Dr John McLeod at Mortdale under the Family Medicine Programme.
In 1976, Dr Mazzaferro returned to the practice of Dr McLeod and, from September 1976 to 30 June 2010, he ran his own General Practice in Kogarah. In 1986, he opened a General Practice in Helensburgh which he closed in 2001. Dr Mazzaferro opened in 1978 and continues to practise as the Principal at a General Practice at Arncliffe.
Dr Mazzaferro's practice now employs two General Practitioners on a full time basis and has three General Practitioners working part time. In addition, he employs on contract a nurse and six other staff members to help run his Arncliffe practice.
The Arncliffe practice has been accredited for the past 12 years, receiving excellent reports from the surveyors the four times it has been accredited.
Since about 12 months ago, Dr Mazzaferro's medical records have been fully computerised using the "Medical Director" programme. Before this time, handwritten notes and/or computer records were kept, although the thoroughness and accuracy of his record keeping is under challenge.
Concerns have previously been raised regarding Dr Mazzaferro's prescribing of schedule 8 and 4D drugs. In October 1979, Dr Mazzaferro pleaded guilty before the Kogarah Court of Petty Sessions and was convicted on ten counts of prescribing drugs of addiction to a known addict without an authority. He was fined $2,000. Dr Mazzaferro's authority to prescribe schedule 8 and 4D drugs had been withdrawn during the period 27 September 1979 to 24 May 1982.
In September 1980, the Medical Tribunal suspended Dr Mazzaferro's registration as a Medical Practitioner for a period of three months because of the above evidence of his ongoing practise of providing prescriptions to drug dependent persons.
Following a further complaint made in July 2008, asserting the doctor was prescribing schedule 8 and 4D drugs to known drug addicts, an investigation was conducted by the Pharmaceutical Services Board ("PSB"). Dr Mazzaferro was ordered to relinquish his authority to prescribe schedule 8 and 4D drugs. The PSB decision and analysis by the Medical Board determined to refer the complaint for investigation to the HCCC who referred the matter to this Tribunal.
Dr Mazzaferro is still practising, with conditions, on his registration including a restriction on his right to prescribe or administer Schedule 8 and 4D of addiction and supervision of his practice of medicine.
The HCCC asks for a finding Dr Mazzaferro is guilty of "unsatisfactory professional conduct". The HCCC, after evidence was completed, pressed for the following orders:
1. He is not to possess, prescribe, supply, dispense or administer Schedule 4 Appendix D drugs or Schedule 8 drugs of addiction.
2. He is not to prescribe Panadeine Forte in excess of therapeutic guidelines.
3. He is to undertake continuing professional development (CPD) activities with a focus on boundary issues.
4. He is to nominate a supervisor within the next 28 days, to be approved by the Council, to monitor and review his clinical practice and compliance with these Practice Conditions in accordance with Level 2 Supervision as contained in the NSW Council's Policy for Supervision for a period of one (1) year. The supervisor is to be provided with a copy of the Policy and the Medical Tribunal's decision. He is to ensure that:
(a) He and the supervisor meet on a fortnightly basis for at least one hour, the first meeting to occur within one fortnight of being advised by the NSW Medical Council that his nominated supervisor has been approved.
(b) At each meeting they address each patient follow up, boundary issues, assertiveness skills, overall patient care and management, substance abuse, appropriate prescribing practices and appropriate referral.
(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 Board/Council on a quarterly basis, a Supervision report in a format prescribed or approved by the Board/Council.
(e) He authorises the Supervisor to inform the Council immediately if there is any concern in relation to his compliance with the supervision requirements, compliance with other conditions of registration, clinical performance, 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.
(g) He is responsible for all costs associated with the supervision arrangement.
5. He is to consent to the exchange of data between the Council, Medicare Australia and Pharmaceutical Services Branch where required in order to facilitate monitoring of his compliance with these Conditions.
6. He is to practise no more than 50 hours per week with no single shift to exceed 10 hours including home visits.
The Evidence
Ms J Kelly of counsel appeared for the HCCC and Ms G Furness SC appeared for Dr Mazzaferro. The HCCC tendered significant documentation to establish, between 2002 and up to 2008, the doctor prescribed, without authority, drugs of addiction to known drug addicts (up to five patients) and relied upon allegations of his failure to keep proper records. His ethical standard in the practice of medicine was also raised.
Ms Furness tendered a Statement which contained admissions but as well denied some factual statements relied upon by the Complainant as contained in the particulars. Dr Mazzaferro gave evidence and was cross examined.
Patient A
Patient A was drug dependent and manipulative with suicidal ideations and a depressive illness. She first saw Dr Mazzaferro in 1976.
Dr Mazzaferro admitted the following three breaches of prescribing drugs of addiction: between 2002 and December 2005 (in excess of two months) for Patient A, a person who Dr Mazzaferro knew was drug dependent in breach of s 28 (Prohibition on prescribing drugs of addiction in certain cases) of the Poisons and Therapeutic Goods Act 1966; between 2002 and 10 October 2006 (approx) prescribing Type C drugs knowing the patient was drug dependent; prescribing other medications in breach of clauses 33 (Quantity and purpose of prescriptions to be appropriate), 79 (Quantity and purpose of prescriptions to be appropriate) and 81 (Records of prescriptions) of the Poisons and Therapeutic Goods Regulation 2002. In doing so he admitted his conduct could be held to be outside the responsible exercise of medical judgement.
He further admitted to not keeping proper medical records - although he contends since November 2006 he has kept proper records and now fully keeps them, on computer. Further, the doctor contended and denied particulars regarding his treatment of Patient A saying he was not able to verify all of the prescriptions recorded in the Schedule A (relied upon by the HCCC) as his record of prescribing for Patient A, particularly during home visits, was inaccurate.
The evidence supports that Patient A was clearly drug dependent. She "doctor shopped". The PSB records show she consulted up to 270 doctors. The doctor contended she could have "forged" his signature on some prescriptions.
By way of explanation, Dr Mazzaferro revealed he had been asked to care for the patient, who he knew was drug addicted, by her parents whom he knew from his activities within the Italian community. He contended he took steps to ensure the drugs he prescribed for Patient A were part of a plan for both pain relief and to control her ingestion of drugs. Evidence supported the fact he referred Patient A to specialists, commenced a drug reduction regime and contacted the dispensing pharmacy to request the dispensing of the medication was restricted to ensure there were controls in place for Patient A's use. Further, he discussed this with her.
Patient notes in this period show the recording of prescriptions issued from the surgery, only up to 29 March 2005, but the PSB records indicate other prescriptions were issued to Patient A after March 2005 by Dr Mazzaferro.
It is also contended (as to particulars nine and ten), the doctor ignored a text message from Patient A that she was suicidal. Dr Mazzaferro denies this particular. The peer review doctor, Dr Walid Jammal, analysed the doctor's treatment of all five patients. Dr Jammal considered Dr Mazzaferro's treatment of the text message to which the doctor did not, it is agreed, react. Dr Jammal opined the following:
With the benefit of hindsight, it would be easy to be critical and reach the conclusion that Dr Mazzaferro should have acted on the text message he received. However, with hindsight removed, it is difficult to know what he should have done in these circumstances. It is my opinion that he should have at least called her to assess her mental state at the time. Their unusually close doctor-patient relationship may have further complicated this issue: 'She is not the only patient that has got access to my mobile phone number. Umm, I am sure it wasn't the usual, what you'd expect a doctor patient relationship. It was also a friend type relationship.' [footnote omitted) This aspect of their relationship no doubt had the potential to cloud Dr Mazzaferro's judgment. In this regard, it is my opinion that Dr Mazzaferro departed from the standard expected of practitioner of equivalent level of training and experience. However, this departure in this patient and these circumstances, was not significant.
It is the view of the Tribunal that, in the context where a number of suicide threats were recorded on this patient's file and throughout her history, it was not established that the doctor erred in failing to respond to one particular threat. We are not satisfied particulars nine and ten, which challenge the doctor's ethical standards are, in the circumstance, made out.
However, given the admissions of the doctor, we are satisfied the doctor's treatment of Patient A, both as to his prescribing of Schedule 8 and 4D medications and his medical record keeping, was significantly below the standard reasonably expected of a medical practitioner of Dr Mazzaferro's level of training and experience.
Patient B
Dr Mazzaferro admits he prescribed Patient B with quantities of drugs of addiction in breach of cl 79 of the Poisons and Therapeutic Goods Act 1966 (up to three times) but contends he only saw the patient four times and, at the third visit, his "antennae" went up. However, the doctor continued to prescribe on the third visit. We are satisfied, however, the doctor refused to prescribe on the fourth visit and particularly notated on the patient's file that he would not continue to treat the patient.
The evidence reveals the doctor saw Patient B over one month in December 2007. It is in dispute whether the patient was waiting to have back surgery or had back surgery. His complaints of pain were accepted by the doctor. The doctor prescribed for the pain up to 7.2 grams of MS Contin in the three visits. Dr Mazzaferro stated:
I was not expecting Patient B to return to see me on an ongoing basis and each time he saw me, I expected it to be the last consultation. However, Patient B continued to present requesting scripts. When I became suspicious of his explanations for requiring the scripts on 31 December 2007, I stopped seeing him.
The doctor's later inquiries revealed the patient had previously been in a drug rehabilitation programme and exhibited drug seeking behaviour.
Dr Mazzaferro admits he did not exercise, at first, responsible medical judgement in his clinical assessment of the patient and, in that circumstance, pleads:
... I acknowledge that I should have contacted Patient B's treating doctors to verify the information he provided to me. If a patient were to present to me with the same complaints again, I would insist on verifying the information provided at the time of the first consultation and if this was not possible, I would refer the patient to A&E for management if I felt their conditions warranted this referral.
(NB: A&E means accident and emergency in a hospital).
As to his analysis of the full recorded treatment of Patient B, Dr Jammal, the peer doctor, opined the following:
Nevertheless, it is my opinion that Dr Mazzaferro significantly departed from the standards expected from a peer professional of equivalent level of training and experience. Someone with Dr Mazzaferro's experience should have known better. However, given the fact that he fell victim to trickery and deception, this departure from the standard does not attract my strong criticism.
The Tribunal notes the treatment of this patient was kept in two separate medical records - both at the surgery in Arncliffe and also at Kogarah. Dr Mazzaferro agrees he should have contacted the patient's treating doctor before continuing to prescribe the narcotics he prescribed for pain relief.
The Tribunal has examined the evidence as to the doctor's PSB records in treating this patient. While Dr Mazzaferro may have been "tricked", the Tribunal is of the view there was a failure in clinical judgement by the doctor in prescribing the excessive quantities of Schedule 8 and 4D drugs evidenced.
Patient C
The allegation is that between 1 April 2003 and 20 March 2008, Dr Mazzaferro failed to keep proper records of his consultative treatments of Patient C. The patient had a history of chronic schizophrenia and a bipolar mood disorder plus chronic anxiety.
Dr Mazzaferro admits he kept some records of the treatment of this patient but also admits those records do not meet the requisite requirements of a responsible medical practitioner. He also admits he helped the patient obtain employment but denies that he kept up regular social contact with the patient as was pressed in the pleadings.
There was a dispute between the parties as to whether it is beyond ethical boundaries for a medical practitioner to refer a patient for employment. Patient C had a bipolar disorder. The HCCC submitted the circumstance in which the doctor referred Patient C to another patient, who was an employer, "crossed the boundaries" of ethical professional behaviour. It was contended by the peer review Doctor, Dr Jammal, that Dr Mazzaferro's position of power over the employer, who was also a patient of Dr Mazzaferro, could have tainted the decision to hire Patient C.
Dr Mazzaferro, however, explained the employer patient had asked him if he knew of anyone in need of work and, as Patient C had worked for the employer patient before, the doctor did not perceive particular difficulties when informing, on the inquiry, that he knew someone who was needing work, namely, Patient C. Dr Mazzaferro had no social contact with the patient or his family while he was the family's general practitioner. He had treated Patient C from September 1992. However, the doctor in evidence also opined he would not make such a referral again.
Dr Jammal's expressed peer view was that in making referrals to a patient employer for a job for another patient, Dr Mazzaferro "crossed boundaries". He opined:
It appears that Dr Mazzaferro became too familiar with his patients and seemed to help them find jobs through his contacts or though other patients. This provides Dr Mazzaferro a higher apparent level of power, and this power over his patients is open to abuse both by his patients and by himself. Although I wholeheartedly accept and understand Dr Mazzaferro's position in the Italian community, and although I accept the expectations and responsibilities that an ethnic community places upon its doctors, it is my opinion that this apparent crossing of professional boundaries contributed to Dr Mazzaferro's willingness to prescribe large and continuing amounts of Sad and S8 drugs, by simply making it extremely difficult to say "no". Part of the problem with becoming too familiar with patients is that human nature itself in makes it difficult to say "no". This crossing of professional boundaries is significantly below the standard expected from peer professionals, but does not attract my strong criticism.
The Tribunal is entitled to take into account the views of the Committee members in coming to its conclusion even though it does give due consideration and weight to expert evidence ( Kalil v Bray (1977) NSWLR 256).
We have considered the circumstances, the doctor's explanation and Dr Jammal's expressed view. However, we do not accept there was a breach of ethical standards in the particular circumstance outlined that led to the doctor referring his patient to another patient for work. Therefore, particular 19 is not established. However, as Dr Mazzaferro, within a period of four and a half years, failed to keep the proper records of his prescribing practise for Patient C, who was a very ill person, we are satisfied there was unsatisfactory professional conduct established.
Patient D
This patient had a history of insomnia, anxiety and drug abuse that spanned many years. The doctor had been involved in his care for many years - back to 1984.
Dr Mazzaferro admits, between September 2002 and March 2008, he prescribed restricted substances and other medication for Patient D that did not accord with recognised therapeutic standards in breach of cl 33 of the Regulations. He denies he failed to keep records of this treatment and contends he kept the appropriate records of his treatments from 2000 to 2008. He denies he failed to maintain appropriate professional boundaries with the patient.
The patient, it is conceded, was a difficult patient. The particulars relied upon contend the doctor over prescribed medications to this patient.
Dr Jammal, in his peer review analysis, noted:
An issue that immediately comes to mind in assessing the clinical records of Dr Mazzaferro is his generally poor and brief clinical notes. In my opinion his notes are brief with many consultations providing nothing more than a few words of entry. Even long consultations have sometimes no more than 6 words present in the clinical notes. This makes it very difficult to assess Dr Mazzaferro's justification for the continuous prescribing of such large amounts of medication, like benzodiazepines, to this patient. . . . The prescribing of S4D drugs and benzodiazepines to such patients does not conform to clinical guidelines or the Poisons and Therapeutic Drugs Act. . .
Given these observations, it appears that Dr Mazzaferro's prescribing in this particular patient (in my opinion) could be described as careless and even dangerous. . . .
It is my opinion that in this patient, Dr Mazzaferro's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training or experience. This departure from the standard invites my strong criticism, especially given the prescribing of medications without regard to any clinical indication.
We reject counsel's submission the evidence does not properly establish the doctor was prescribing drugs of addiction as asserted in the particulars. The PSB evidence persuades otherwise. From the evidence and the concession made by the doctor, we find he was prescribing medications to this difficult patient without seeking the appropriate pathology in support of his diagnosis of the patient's complaints. There was, therefore, no evidence to support his various diagnoses of the patient's complaints, which diagnoses gave foundation for the doctor to plead he was justified in prescribing the type and quantity of medication for the patient's various ailments. The prescribing practice revealed was not within the responsible standards expected of a medical practitioner.
Patient E
This patient had a history of systemic lupus erythematosis (SLE) arthritis, osteoporosis and chronic pain as well as depression. She was prescribed various and large amounts of painkillers over many years. She attended at the doctor's practice from 1981.
Dr Mazzaferro admits he prescribed drugs of addiction, between 1 September 2002 and 12 November 2007, when he knew the patient was a drug dependent person and without proper authority in breach of s 28 (Prohibition on prescribing drugs of addiction in certain cases) of the Poisons and Therapeutic Goods Act 1966. As to the asserted breaches of clauses 79 (Quantity and purpose of prescriptions to be appropriate), 83 and 89 of the Regulations and the allegation that he did not exercise responsible medical judgement, the doctor denies this particular.
Dr Jammal, in his peer review analysis, noted:
... as previously stated the sheer amount of pain killers, especially of Panadeine forte prescribed to [name] (especially in 2006 and 2007) seemed highly excessive, unfettered and without clinical justification..
Dr Mazzaferro contended:
I have ordered a number of investigations to be performed on patient E over the years, including blood testing (Vol 2, pps. 812, 818, 820, 823 and 824) and Bone Scans (Vol 2, p.815). I have performed numerous Depo-Medrol injections to assist in the management of her condition (Vol 2, p.815).
...
In October 2006, I requested a PSB authority to prescribe an increased quantity of Endone, 300 + 2 repeats of 100mg 10/day for Patient E. A script for 300 was authorised.
Dr Mazzaferro continued:
Patient E has chronic severe pain as a result of her arthritis, manifesting as hot, swollen and tender joints particularly in the ankles, knees and back. Patient E has been and continues to be under the care of rheumatologists and pain specialists at St George Hospital. Patient E often required intra-articular corticosteroid injections to relieve severe episodes of joint pain. Patient E has very often been chair bound or bed bound due to her severe pain.
As to his record keeping of his treatment of Patient E, Dr Mazzaferro submitted:
I kept computer and hard copy notes of my consultations with and treatment of patient E together with correspondence from the specialists involved in her management but admit that my records did not always comply with the relevant regulations.
As to his analysis of the recorded treatment of Patient E, Dr Jammal opined the following:
On these issues discussed, it is my opinion that Dr Mazzaferro departed ... from the standard expected of a peer professional. Despite the difficulties presented by this patient, and in light of the above comments, the significance of this departure attracts my ... criticism.
However, Dr Jammal withdrew his original expressed view that the departure from the appropriate standard of medical care was "significant" and that the doctor's conduct attracted his "strong" criticism. We accept there is evidence of the regular prescribing of multiple medications without the necessary clinical justification. When a comparison was made with the patient's treatment by another doctor in 2008, there is recorded a significant reduction in the quantities of medication prescribed. We find the particulars relied upon established and are of the view the doctor's prescribing of medications was outside the boundaries of proper professional conduct.
Generally, in an overview of the complaint, Dr Mazzaferro gave the following comments as to his conduct:
I have discussed the issues raised in the complaint with close colleagues.
On reflection and with the benefit of hindsight I realise I was lax in my compliance with some of my obligations under the Poisons and Therapeutic Goods Act. Presently, I have no desire to resume prescribing Schedule 4D or Schedule 8 drugs. I have seconded the care of my patients requiring such treatment, to my colleagues within the practice.
I now fully appreciate that I have breached provisions of the Poisons and Therapeutic Goods legislation and that these breaches render me liable to disciplinary action and prosecution. I deeply regret bringing the medical profession and myself into disrepute.
. . .
My management of these four [sic] patients, the subject of the Complaint was an aberration, was contrary to my usual management and was a distinct departure from my usual management and mode of practice. These patients were and are distinct from the bulk of the patient population base that makes up my practice.
The Tribunal must be satisfied as to the matters complained of on the balance of probabilities. In approaching the proof of the complaints, the Tribunal applies the " Briginshaw test" ( Briginshaw v Briginshaw (1938) 60 CLR 336) . This test does not mean that some higher test is applicable than that applicable to other matters where proof is to be found on the balance of probabilities.
In Director-General, Department of Community Services; re Sophie [2008] NSWCA 250, the Court considered the balance of proof where the " Briginshaw test" applies and said at [68]:
As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly.
As to the Complaint that Dr Mazzaferro failed to gain proper authorities for prescribing Schedule 8 and 4D drugs; his practice of over prescribing medication; his lack of proper record keeping of his consultations (be they at the surgery or home visits), all such conduct persuades the Tribunal the complaint is a significant one and the doctor is guilty of unsatisfactory professional conduct.
As was held in by the Tribunal in HCCC v Gayed [2009] NSWMT 4 at [24] and [27]:
24 ... the history of disciplinary proceedings provides a context in which the respondent's conduct must be seen as objectively more serious than would have been the case if the respondent had not previously come before the Tribunal on a similar complaint.
We are satisfied Dr Mazzaferro has been on notice as to his practice of prescribing medications in the form of drugs of addiction as far back as 1977 not only, but particularly, in a circumstance where he had knowledge the patient was drug addicted. He opines, while his malpractice in this capacity ceased in 1980, he re-offended due to his "excessive compassion". The re-offending was, on the evidence, through a considerable period rather consistently from 2002 to 2008. This, however, was not his only unsatisfactory professional conduct. Dr Mazzaferro also failed to keep proper records, made home visits without keeping any records (for one patient) and, because of such lax practices, could not verify what further prescriptions or drugs he administered during these home visits inferring some recorded in the PSB documents could be fraudulent.
Further, the Tribunal is cognisant of the obligation it has to consider both the protection of the public and the profession. It was also said in Gayed at [27]:
27 ... the Tribunal's jurisdiction is to be exercised both for the protection of the public and for the protection of the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. It is important that serious misconduct be denounced. Both the profession and the public must know that standards will be maintained and that serious misconduct will have consequences for professional registration: Law Society of NSW v Foreman (1994) 34 NSWLR 408 per Giles JA at 471.
In his peer review analysis, Dr Jammal opined Dr Mazzaferro's conduct of his medical practice "crossed boundaries", noting:
It is my opinion that this apparent crossing of professional boundaries contributed to Dr Mazzaferro's willingness to prescribe large and continuing amounts of S4d and S8 drugs, by simply making it extremely difficult to say "no". Part of the problem with becoming too familiar with patients is that human nature itself makes it difficult to say "no". This crossing of professional boundaries is significantly below the standard expected from peer professionals, but does not attract my strong criticism.
Ms Furness, on the doctor's behalf, in the context that Dr Jammal had conceded some of Dr Mazzaferro's prescribing practices were not "significantly" below the accepted standards for a medical practitioner of the doctor's experience and standing (related specifically to some of the patients), submitted there was not sufficient evidence to establish the charge. Ms Furness submitted, given the evidence, the Tribunal would not be satisfied as to the "significance" of the unprofessional conduct AS required in accordance with the definition of "significance" under the Act.
In the Second Reading Speech, when the Medical Practice Act 1992 was introduced to Parliament, it was stated that:
The first main purpose of the bill is to refocus the Health Care Complaints Commission (HCCC) on investigating serious complaints about health service providers. To achieve this, Commissioner Walker recommended that unsatisfactory professional conduct be redefined so that only significant instances involving lack of skill, judgment, or care will result in an investigation or disciplinary action. ..... the reference to 'significant' in that context may refer to a single act or omission that demonstrates a practitioner's lack of skill, judgment or care, or it may refer to a pattern of conduct. In any individual case, that will depend on the seriousness of the circumstances of the case.
In Re A Medical Practitioner and the Medical Practice Act (unreported, 3 September 2007) Freeman J said:
As a general principle, the use of the term "significant" may in law be taken to mean not trivial, of importance, or substantial.
The Tribunal looks at the conduct cumulatively in determining whether the conduct amounts to unsatisfactory professional conduct. We are satisfied the incidents before us are significant and reveal a lack of professional judgement and care on the part of Dr Mazzaferro in his treatment of these five patients. We are of the view, taking into account the pattern of conduct related to the doctor's practise in prescribing medications to drug dependent patients and his failure to keep appropriate records in the context of having received prior warning and disciplinary action from the Medical Board, that the doctor's knowledge and judgement and lack of care in his practice demonstrates his practice of medicine was significantly below the requisite standard expected of a practitioner of his experience. We accept the evidence establishes he has breached the Medical Practice Act and Regulations. We accept overall the doctor's unsatisfactory professional conduct was not trivial but significant. However, while Dr Mazzaferro's conduct was, at times, in breach of the requisite standard, we see no evidence of a breach of ethics related to any social contact with his patients.
We are, therefore, comfortably satisfied ( Briginshaw v Briginshaw (1938) 60 CLR 336) Dr Mazzaferro is guilty of unsatisfactory professional conduct in that, in the exercise of his medical practice, his knowledge, skill, judgement and care were significantly below the standard expected of a practitioner; he breached the Medical Practice Act 1992 and he engaged in improper conduct.
We note the orders sought by the HCCC as outlined in [13] above.
The respondent objects to Order (1)(i) as it is in its form a simple recitation of the law. However, given the evidence of the doctor's prescribing record we are satisfied the order is appropriate and serves as a reminder to Dr Mazzaferro.
The Tribunal is of the view, as to the proposed Order (1)(iv), it is in the public interest, as well as that of the doctor, to ensure, as Dr Mazzaferro continues in practice, that there is an overview of his practises and that the supervision in place be conducted by a doctor independent of his surgery. We will therefore vary order (4) to reflect the Tribunal's determination. So as to ensure such an overview be not onerous on the supervisor we amend the order to require monthly not fortnightly meetings.
As to proposed Order (1)(vi), the respondent submitted, there is no evidence indicating any connection between Dr Mazzaferro's conduct forming the subject of the complaint and the number of patients seen by him/hours he worked. It was submitted this issue does not form part of the complaint prosecuted against the respondent nor was it put to the peer reviewer at any stage in the proceedings. Further, it was submitted, there was no evidence adduced in the proceedings indicating that a restriction to the number of patients seen by the respondent and/or the hours he worked is required in order to provide adequate protection for the public. The respondent further submits restricting the hours that Dr Mazzaferro see patients, as proposed by the complainant, would cause hardship to his patients and would be punitive to the respondent's patients and the respondent.
However, the Tribunal heard the doctor in evidence and in cross examination. The doctor gave evidence of the pressures he felt given his busy practice:
Q. What hours do you work to see those patients?
A. I am scheduled from 8.00 am to 6 pm and it always goes over a couple of hours, so I very rarely get out of the surgery before 8 o'clock, sometimes even 9 and after that I do my home visits. I must say my home visit amount has greatly reduced over the past couple of years. My main visiting is at the Scalabrini Village Nursing Home where I, if not everyday, well basically almost everyday I go there, every evening.
The Tribunal is of the view if the pressures and demands of such a busy practice are relieved on the practitioner, he will be able to take more care with his clinical consultations and have time to give more consideration as to the appropriate clinical specialist referrals and his prescribing practices. W e are of the view a further restriction should be placed upon the doctor. However, the Tribunal is concerned the amended orders sought by the HCCC would be difficult to monitor and is of the view the restriction should be in the form of a cap on the number of patients the doctor sees in a day. We also accept the respondent's submission that the nursing home patients be excluded from the hourly cap placed upon the doctor which, in the circumstances, we otherwise consider appropriate.
Costs
The complainant asks for costs. Costs generally follow the cause. Ms Furness SC for the respondent doctor made no submission as to costs.
In Latoudis v Casey [1990] 170 CLR 534, Mason CJ stated the principles to be applied in relation to the awarding of costs as follows (at 542 - 543):
. . . in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v. Abbott , at p 111. ... Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.
And later (at 544):
Nevertheless, I am persuaded that, in ordinary circumstances, an order for costs should be made in favour of a successful defendant. However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant's costs. If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor.
The principles enunciated in Latoudis , it has been held, should be applied by Tribunals such as the Medical Tribunal ( OHN v Walton (1995) 36 NSWLR 77).
Final Orders
1. Dr Mazzaferro is guilty of unsatisfactory professional conduct in that, in the exercise of his medical practice, his knowledge, skill, judgement and care were significantly below the standard expected of a practitioner; he breached the Medical Practice Act 1992 and he engaged in improper conduct.
2. We, therefore, order in Dr Mazzaferro's practice of medicine:
(i) He is not to possess, prescribe, supply, dispense or administer Schedule 4 Appendix D drugs or Schedule 8 drugs of addiction.
(ii) He is not to prescribe Panadeine Forte in excess of therapeutic guidelines.
(iii) He is to undertake continuing professional development (CPD) activities with a focus on boundary issues.
(iv) He is to nominate an independent supervisor within the next 28 days, to be approved by the Council, to monitor and review his clinical practice and compliance with these Practice Conditions in accordance with Level 2 Supervision as contained in the NSW Council's Policy for Supervision for a period of one (1) year. The supervisor is to be provided with a copy of the Policy and the Medical Tribunal's decision. He is to ensure that:
(a) He and the supervisor meet on a monthly basis for at least one hour, the first meeting to occur within one month of being advised by the NSW Medical Council that his nominated supervisor has been approved.
(b) At each meeting they address each patient follow up, boundary issues, assertiveness skills, overall patient care and management, substance abuse, appropriate prescribing practices and appropriate referral.
(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 Board/Council, on a quarterly basis, a Supervision report in a format prescribed or approved by the Board/Council.
(e) He authorises the Supervisor to inform the Council immediately if there is any concern in relation to his compliance with the supervision requirements, compliance with other conditions of registration, clinical performance, or if the supervisor relationship ceases.
(f) In the event that the approved independent supervisor is no longer willing or able to provide the supervision required, details of a replacement independent supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship.
(g) He is responsible for all costs associated with the supervision arrangement.
(v) He is to consent to the exchange of data between the Council, Medicare Australia and Pharmaceutical Services Branch where required in order to facilitate monitoring of his compliance with these Conditions.
(vi) He is to treat no more than 175 patients in any one week and an average of no more than 35 in any one day including home visits but excluding nursing home visits.
2. The respondent shall pay the complainant's costs.
Decision last updated: 01 September 2011
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