Health Care Complaints Commission v Gorondy-Novak
[2011] NSWMT 3
•15 April 2011
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3 Hearing dates: 7 - 11 March 2011 Decision date: 15 April 2011 Before: Staff J; Dr S Toh; Dr M Higgins; Assoc Prof A Glass Decision: 1. The Tribunal finds particulars 4, 5, 6, 7, 8, 9 (excluding the failure to have a management plan), 10 (excluding the failure to have a management plan), 11, 12(c), 13, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27 and 28 are proved.
2. The Tribunal finds that the practitioner's particularised conduct as proved in respect of particulars referred to in Order 1, with the exception of particulars 6, 11, 18, 24 and 28 amounted to professional misconduct.
3. The Tribunal finds that the practitioner's failure to make proper records (particulars 6, 11, 18, 24 and 28) amounted to unsatisfactory professional conduct.
4. The Tribunal reprimands Dr Gorondy-Novak.
5. Pursuant to s 61(1)(c) of the Medical Practice Act 1992, Dr Gorondy-Novak's registration is subject to conditions.
Catchwords: General practitioner - inappropriate prescribing of benzodiazepines, diazepam, oxycodone, ms contin, pethidine and codeine phosphate to drug dependent patients where the medical practitioner knew or ought reasonably to have known of their drug dependence - continuing to prescribe to known "doctor shoppers" in quantities which exceeded therapeutic guidelines - continuing to prescribe when practitioner knew or ought to have known another general practitioner was also prescribing - continuing to prescribe without specialist assessment - failure to recognise repeated drug seeking behaviour - prescribing without holding or applying for an authority under s 28 of the Poisons and Therapeutic Goods Act 1966 - failure to make and/or retain proper records of treatment of patients contrary to cl 5 and cl 6 of the Medical Practice Regulation 2003 - professional misconduct - amended complaint - procedural fairness - principles - penalty - rights to prescribe Schedule 4 and Schedule 8 drugs removed - practitioner reprimanded - other conditions imposed Legislation Cited: Interpretation Act 1987
Medical Practice Act 1992
Medical Practice Regulation 2003
Poisons and Therapeutic Goods Act 1966
Poisons and Therapeutic Goods Regulation 2002Cases Cited: A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253
Bannister v Walton (1993) 30 NSWLR 699
Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279
Briginshaw v Briginshaw (1938) 60 CLR 336
Buttsworth v Walton (Court of Appeal, 19 December 1991, unreported)
Childs v Walton (Court of Appeal, 13 November 1990, unreported)
Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705
Dr Clive Anthony Wolfe (18 November 1999)
Health Care Complaints Commission v Ian Robert Hutchins (Matter No 40013 of 2008, 31 July 2009)
Ex Parte Lenehan [1948] HCA 45
Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30
Fair Work Ombudsman v Centennial Financial Services Pty Ltd & Ors [2010] FMCA 86; (2010) 245 FLR 242
Gad v Health Care Complaints Commission [2002] NSWCA 111
HCCC v Dr Christopher Roberts [2007] NSWMT 15
HCCC v Dr Kazmierczak [2007] NSWMT 14
HCCC v Kalokerinos [2007] NSWMT 17
Health Care Complaints Commission v Karalasingham [2007] NSWCA 267
Health Care Complaints Commission v Ameisen (28 January 2009)
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
In Re Dr Gregory Wilcox [2007] NSWMT 3
In Re Dr Peter Keith [2007] NSWMT 12
Kalil v Bray [1977] 1 NSWLR 256
Katherine Louise Carseldine and the Medical Practitioners Act (19 March 1991)
Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531
Lindsay v Health Care Complaints Commission [2010] NSWCA 194
Pillai v Messiter [No 2] (1989) 16 NSWLR 197
Prakash v Health Care Complaints Commission [2006] NSWCA 153
Qidwai v Brown [1984] 1 NSWLR 100
Re Dr Barry Cross and the Medical Practice Act (2 February 2006)
Re Dr Parajuli [2010] NSWMT 3
Re Dr Susan Catchlove and the Medical Practice Act (8 February 2006)
Rejfek v McElroy (1965) 112 CLR 517
Re the Medical Practice Act 1992 and Dr Ghalib Mohammad Talib Hamad [2004] NSWMT 4
Sabag v Health Care Complaints Commission [2001] NSWCA 411
Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
Spicer v New South Wales Medical Board and Ors (Court of Appeal, 19 February 1981, unreported)
The Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987, unreported)
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491Category: Principal judgment Parties: Health Care Complaints Commission (Complainant)
Dr Kinga Maria Gorondy-Novak (Respondent)Representation: Ms S McNaughton of counsel (Complainant)
Mr M Windsor SC (Respondent)
Health Care Complaints Commission (Complainant)
Avant Insurance Pty Ltd (Respondent)
File Number(s): 40016 of 2010 Publication restriction: Pursuant to Clause 6 of Schedule 2 of the Medical Practice Act 1992 the Tribunal has ordered that there be no publication of the names of the patients or of any material capable of identifying the patients.
JUDGMENT
The Health Care Complaints Commission ("HCCC") alleges in an amended complaint, that Dr Kinga Maria Gorondy-Novak ("the respondent"), a medical practitioner, is guilty of "unsatisfactory professional conduct" within the meaning of s 36 of the Medical Practice Act 1992 (now repealed) ( "Medical Practice Act ") and/or "professional misconduct" within the meaning of s 37 of the Medical Practice Act in that she has demonstrated that the knowledge, skill or judgment possessed, or care exercised by her in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or has also contravened the Medical Practice Regulation 2003 ("Medical Practice Regulation").
The particulars of the complaint refer to five patients of the respondent, who will be referred to as "Patient A", "Patient B", "Patient C", "Patient D" and "Patient E".
In summary, it is alleged that the respondent failed to refer Patient A, a known "doctor shopper" and benzodiazepine abuser, for specialist assessment and management of his addiction to Diazepam. Patient A was also prescribed Diazepam tablets and Codeine Phosphate in quantities which exceeded the Therapeutic Guidelines. Similar allegations of over prescribing and failure to refer to a specialist and have a management plan are alleged in respect of each of the other patients. In respect of Patient E, it is also alleged that the respondent prescribed Pethidine without holding or applying for an Authority under s 29 of the Poisons and Therapeutic Goods Act 1966.
In addition, it is alleged in respect of each of the patients that the respondent failed to make and/or retain proper records contrary to cl 5 and cl 6 of the Medical Practice Regulation.
The particulars of the complaint were:
At all relevant times, the practitioner conducted practice as a general practitioner:
Patient A
1. Between 3 January 2007 and 12 March 2007 the practitioner failed to refer Patient A, a known "doctor shopper" and benzodiazepine abuser, for specialist assessment and management of his addiction to diazepam;
2. Between 3 January 2007 and 12 November 2007, the practitioner continued to prescribe diazepam tablets to a known "doctor shopper" and benzodiazepine abuser, without specialist advice and a documented management plan;
3. Between 3 January 2007 and 12 November 2007, the practitioner continued to prescribe codeine phosphate with paracetamol 30 mg - 500 mg tablets to a known "doctor shopper" and benzodiazepine abuser, without specialist advice and a documented management plan;
4. Between 3 January 2007 and 12 November 2007, the practitioner prescribed diazepam tablets in quantities which exceeded therapeutic guidelines contrary to Clause 79 of the Poisons and Therapeutic Goods Regulation 2002;
5. Between 27 March 2007 and 23 October 2007, the practitioner prescribed codeine phosphate with paracetamol 30 mg - 500 mg tablets for a period the length of which exceeded therapeutic guidelines; and
6. Between early 2002 and November 2007, the practitioner failed to make and/or retain proper records of her treatment of Patient A contrary to Clauses 5 & 6 of the Medical Practice Regulation 2003.
Patient B
7.Between 3 January 2006 and 12 November 2007 the practitioner prescribed diazepam tablets to Patient B in excess of therapeutic guidelines when she knew or ought to have known that Dr Ktenas, another general practitioner who used the same medical records, was also prescribing diazepam tablets for Patient B during that period;
8.Between 3 January 2006 and 12 November 2007 the practitioner prescribed codeine phosphate with paracetamol 30 mg - 500 mg tables in to Patient B in excess of therapeutic guidelines when she knew or ought to have known that Dr Ktenas, another general practitioner who used the same medical records, was also prescribing codeine phosphate with paracetamol 30 mg - 500 mg tablets for Patient B during that period.
9.Between 3 January 2006 and 12 November 2007 the practitioner continued to prescribe diazepam for Patient B without specialist assessment and a documented management plan;
10.Between 3 January 2006 and 12 November 2007 the practitioner continued to prescribe codeine phosphate with paracetamol 30 mg - 500 mg tablets for Patient B without specialist assessment and a documented management plan;
11.Between early 2002 and November 2007, the practitioner failed to make and/or retain proper records of her treatment of Patient B contrary to Clause 5 & 6 of the Medical Practice Regulation 2003.
Patient C
12.At least between 9 November 2006 and 17 December 2007 the practitioner prescribed oxycodone tablets for Patient C:
(a) in a quantity, and/or for a purpose and/or for a duration, that did not accord with the recognised therapeutic standard of what was expected in the circumstances;
(b) without specialist advice and a documented management plan;
(c) without including adequate directions for use in her handwriting on the prescriptions issued contrary to clause 77 of the Poisons and Therapeutic Goods Regulation 2002;
(d) in the form of 80 mg tablets, concurrently prescribing also 20 mg tablets and 40 mg tablets when Patient C failed to attend pain clinic appointments;
(e) in the form of 80 mg tablets, concurrently prescribing also 20 mg tables and 40 mg tables without any treatment plan documented in the records;
13. On 12 December 2006 and/or, 7 February 2007, 4 April 2007, 18 April 2007, 2 June 2007, 3 July 2007, 23 July 2007, 20 September 2007, 13 October 2007, 15 October 2007 and 14 November 2007 the practitioner agreed to provide replacement prescriptions for oxycodone in circumstances when she should have not so agreed.
14. On 28 March 2007 and/or around 12 December 2007, the practitioner used an incorrect patient name and date of birth when applying to the PSB for an authority to prescribe drugs of addiction;
15. On 7 February and/or, 5 March, 27 March, 4 April, 5 April, 18 April, 23 April, 30 April, 13 June, 25 June, 3 July, 4 July, 23 July and 27 July 2007 prescribed 80 mg oxcontin SR tablets to Patient C using an incorrect patient name, "Patient X".
16. On 7 February and/or, 5 March, 27 March, 4 April, 5 April, 18 April, 23 April, 30 April, 13 June, 25 June, 3 July, 23 July and 27 July 2007 the practitioner claimed Medicare benefits for consultations on those dates with Patient C when she had written prescriptions on those dates for Patient X.
17. The practitioner continued to prescribe oxycodone tablets for Patient C after she had been made aware on or around 4 July 2007 that Patient C was a "doctor shopper".
18. Between 8 November 2006 and 5 January 2008, the practitioner failed to make and/or retain proper records of her treatment of Patient C contrary to Clause 5 and 6 of the Medical Practice Regulation 2003.
Patient D
19. [Not pursued].
20. The practitioner continued to prescribe oxycodone and diazepam 5 mg tablets to Patient D, a known "doctor shopper", when on 16 November 2006 a notation in the medical records indicates that she was dubious about the excuses being put forward in order to get further supplies of medication;
21. The practitioner prescribed MS contin tablets on the following dates in 2001: 28 February and/or, 16 May, 1 June, 2 July, 9 July, 30 July, 3 August, 31 August, 12 September and 14 September, for a known 'doctor shopper' without holding or applying for an Authority under s 29 of the Poisons and Therapeutic Goods Act 1966;
22. The practitioner prescribed oxycodone tablets on 3 April and on or, 26 June, 3 July, 9 August, 4 September, 13 October, 4 November, 20 November 2006, and 5 January 2007, for a known 'doctor shopper', without holding or applying for an Authority under s 29 of the Poisons and Therapeutic Goods Act 1966;
23. The practitioner prescribed drugs of addiction on 23 and on or, 30 June, 8 September and 26 October 2007 without including adequate directions for use in her handwriting on the prescriptions issued contrary to clause 77 of the Poisons and Therapeutic Goods Regulation 2002.
24. Between mid-2001 and 3 January 2008, the practitioner failed generally to make and/or retain proper records of her treatment of Patient D contrary to Clause 5 & 6 of the Medical Practice Regulation 2003, given the nature of the drugs being prescribed, the duration of prescribing and the problems being treated that was primarily drug abuse.
Patient E
25. The practitioner prescribed fifty-five prescriptions for pethidine in the period 4 January to 24 December 2007 without holding or applying for an Authority under s 29 of the Poisons and Therapeutic Goods Act 1966;
26. Between 4 January and 24 December 2007, the practitioner prescribed fifty-five prescriptions for pethidine, each ordering twenty ampoules of pethidine 100 mg at a time, despite Patient E's clinical history and notwithstanding the advice from the Prince of Wales Pain Clinic on 24 May 2007 that they did not support continued pethidine use;
27. The practitioner prescribed drugs of addiction in the period 4 January to 24 December 2007 without including adequate directions for use in her handwriting on the prescriptions issued contrary to clause 77 of the Poisons and Therapeutic Goods Regulation 2002;
28. In the period 4 January to 24 December 2007 the practitioner failed generally to make and/or retain proper records of her treatment of Patient E contrary to Clause 5 & 6 of the Medical Practice Regulation 2003, given the nature of the drugs being prescribed, the duration of prescribing and the problems being treated that was primarily drug abuse.
The respondent made a number of admissions in respect of her conduct, though she did not concede in terms that any of her conduct constituted unsatisfactory professional conduct under the Medical Practice Act , or professional misconduct.
Ms S McNaughton of counsel appeared for the HCCC. Mr M Windsor SC appeared for the respondent.
Professional misconduct
For the purposes of the Medical Practice Act , "unsatisfactory professional conduct" of a registered medical practitioner is defined as follows:
36 Meaning of "unsatisfactory professional conduct"
(1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:
(a) Conduct significantly below reasonable standard
Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
...
(m) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of medicine.
For the purposes of the Medical Practice Act , "professional misconduct" of a registered medical practitioner is defined as follows:
37 Meaning of "professional misconduct"
(a) unsatisfactory professional conduct, or
(b) 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 of the practitioner from practising medicine or the removal of the practitioner's name from the Register.
Standard of proof
The standard of proof to be applied by the Tribunal is that referred to in Rejfek v McElroy (1965) 112 CLR 517 at 521:
No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.
That standard was applied in Bannister v Walton (1993) 30 NSWLR 699 where it was held that the requirement is that the Tribunal be "comfortably satisfied on the balance of probabilities".
The Tribunal must have regard to the gravity and importance of the matters which it is deciding in accordance with the principles stated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360 - 363. At 361 - 362 Sir Owen Dixon stated:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
Principles
This jurisdiction is exercised for the protection of the public and the medical profession. It is protective rather than punitive. Deregistration is not an automatic outcome of a finding of professional misconduct, even where that conduct is sufficiently serious to justify it: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. It is clear that deregistration may be required in serious cases of professional misconduct in order to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thereby maintaining public confidence in the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298 at [45]; Prakash v Health Care Complaints Commission [2006] NSWCA 153, Santow JA at [64] and Basten JA at [101]; Childs v Walton (Court of Appeal, 13 November 1990, unreported).
It is important to bear in mind that the question of fitness to practice must be determined at the date of hearing: A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 (at [21]). In determining the question of fitness, the whole of the conduct of the practitioner should be considered: Gad v Health Care Complaints Commission [2002] NSWCA 111 at [55].
The respondent
The respondent was born in 1945 in Griffin, Austria. In 1947 she travelled with her mother to Hungary where she remained until 1956, when she and her mother escaped that country during the Revolution and sought refuge in Austria. She subsequently migrated with her mother to Australia, where she enrolled in primary school.
In 1962, the respondent completed her Leaving Certificate. In 1969, she graduated with a Bachelor of Medicine, Bachelor of Surgery from the University of Sydney. She worked as an Intern at the Prince of Wales Hospital and Prince Henry Hospital in 1969 and 1970.
Since 1971, she has worked in general practices in Kingsford, Randwick, Malabar and Maroubra.
The respondent is married and her mother lives with the respondent and her husband. Her four adult children no longer live at home.
In 1997, the respondent obtained a Masters of Medicine in Gerontology from the University of New South Wales. From 1999, the respondent provided general practitioner services each week to persons at Jarrah House, a care institution that looks after women and children exclusively. The Jarrah House facility is an outreach of Prince of Wales Hospital, used for women's voluntary short term drug and alcohol detoxification. Stage 1 of the detoxification program is for three weeks and later rehabilitation Stage 2, for six weeks. Her work with Jarrah House included admission of clients, their examination, assessment and recommendation for detoxification, plus other general practitioner assistance with health needs of the women and their children. Children are able to be admitted to Jarrah House with their mothers.
As a result of working at Jarrah House, the respondent was asked to complete a Methadone and Buprenorphine Prescriber's Course to facilitate Buprenorphine detoxification of clients. She was accredited as a prescriber at the end of 2001. In 2008, she completed an Advanced Prescriber's Course given by the Australasian Chapter of Addictive Medicine within the Royal Australian College of Physicians.
In addition, the respondent completed further training for mental health assessment and referral in about 2005. She stated that she continues to update her knowledge and skills in this area, both with the Black Dog Institute and with the Brain and Mind Institute at Sydney University. She has joined a small learning group focused on mental health issues based at the Cooper Street Clinic.
In 2010, the respondent attended seminars updating her education in topics ranging from mental health, chronic disease management, palliative care, diabetes, motivation interviewing in general practice and pain management opioid therapy in chronic pain.
Since the complaint by the HCCC, the respondent has been receiving mentoring, first from Dr James Bell, the Director of the Langton Centre (Drug and Alcohol Service). The Langton Centre provides drug and alcohol assistance in respect of addiction. She then received mentoring with Dr Lucy Harvey-Dodds, a Drug and Alcohol Specialist whom she continues to see on a regular basis.
From 1997, the respondent worked at the Waratah Medical Centre on a sessional basis. She was paid per hour worked. The Waratah Medical Centre is owned by Dr Ktenas. Only the respondent and Dr Ktenas were involved in the practice. When the respondent worked at this practice, Dr Ktenas was often not present. She worked around 23 hours per week. The Centre bulk bills patients ranging across the spectrum. The respondent's practice while working at the Waratah Medical Centre was family orientated, with an approximate 60/40 per cent ratio of female to male patients. The majority of patients are aged between 18 and 59. The percentage of Methadone patients was about 4 per cent of her overall practice of between 600 to 1000 patients per year. The Methadone patients and the patients included in the complaint represented a small cohort of drug-dependent or drug-using/seeking patients.
The respondent is a member of the South Eastern Sydney Division of general practice. She is also a member of the Royal Australasian College of General Practitioners and the Australian Medical Association.
The respondent ceased working at the Waratah Medical Centre on Christmas Eve last year. She commenced working at the Maroubra Medical Centre in January 2011. This Centre employs approximately five full time doctors and nine part time. There is also a practice nurse engaged by the practice who is available to do testing and assist with health assessments, immunisations, checking blood pressure, doing spirometry and other work usually carried out by a nurse. There is also a practice manager at the Maroubra Medical Centre who organises the day to day running of the practice and ensures that doctors are up to date in terms of Government requirements with respect to medical practice. The practice uses a software package when consulting patients known as the "Medical Director". The respondent works part time at the practice as follows:
Monday - 9.00am to 2.00pm;
Wednesday - 12.00noon to 6.00pm;
Friday - 9.00am to 3.00pm;
Saturday - 9.00am to 12.00noon,
which amounts to 20 hours per week. The respondent also does home visits and attends nursing homes in the south eastern Sydney region. The majority of the doctors at the practice bulk bill. At this practice, the respondent sees a mixture of men, women and children. The number of female patients is much higher than she saw at the Waratah practice. Also the number of aged patients is higher, being 60 plus. The respondent has a particular interest in these patients, having completed a Gerontology course which dealt with aged care.
The respondent said that at the Maroubra Medical Centre, she has the opportunity to liaise with other general practitioners within the practice.
Between 1999 and 2006, the respondent attended as a representative of the South Eastern Sydney Division of general practice at monthly meetings at the Prince of Wales Hospital. A primary purpose of those meetings was to maintain liaison between providers of public health services in south and eastern Sydney. She continues to be the general practitioner representative for the Division for an Area Health Service Advisory Group, as well as the representative of the Division on the Consumer Research Committee of the Dementia Collaborative of the University of New South Wales. She also represents the Division in the Dementia Planning Committee at 2010 - 2015 for Randwick and Botany.
In the respondent's written statement, she stated that the drug-dependent patients she was seeing, fell into the following main categories:
- those addicted clients who are in a supervised detoxification centre such as in Jarrah House where there are procedures and protocols in place. I worked one session a week at this facility for 10 years.
- methadone and Buprenorphine clients who are relatively stable on oral opioid replacement therapy (ORT). I was treating 27 such patients in 2008. There are recommended protocols and procedures for these patients. Originally, I completed the prescriber's course so as to be able to manage rapid detoxification of opiate addicts with Buprenorphine. I put this into practice at Jarrah House but also acquired clients (being the 27 mentioned above) who needed a community prescriber as my name was on the State register.
As a result of the hearing at the Medical Board under Section 66 of the Medical Practice Act 1992, which arose from the PSB investigation, I was ordered to find those 27 patients another prescriber.
- chronic non-cancer pain sufferers, not drug addicts but habituated to opiates because of their debility. I had 10 such patients under my care when I was ordered to stop prescribing S8 drugs. Most are elderly, relatively debilitated and complex patients. Despite my not being allowed to prescribe opiates, several of these patients continue to consult me. Their analgesia is managed elsewhere by either a specialist, the pain clinic, or another GP. I work in collaboration with these practitioners in caring for these patients.
- chronic pain non-cancer patients who are addicted to opiates and often other substances. These patients frequently have mental health issues and multiple other co-morbidities. They are the most difficult patients to treat and four of the five in the Complaint belong to this group, though Patient E does not quite fit the profile. I treated approximately 10 such patients in the 5 years prior to 2008. There are less clear cut guidelines and protocols available for management of this group of patients than for the first two groups. I treated each patient in partnership with a pain clinic and acted in conjunction with specialist advice. My usual response to escalating doses was to ask for pain clinic advice and assistance.
- patients taking benzodiazepines. I have rarely initiated treatment with this group of drugs except for alcohol detoxification. Benzodiazepines are useful for some forms of epilepsy especially as a form of emergency treatment. I have been using the National Prescribing Service ("NPS") patient education handout: sleep hygiene for insomniacs for the past 10 years. It has been my practice to advise those taking long term hypnotics that it is harmful and encouraged them to gradually cease taking them. My only other dealings with patients taking large doses of benzodiazepines, like Patient A, was at Jarrah House where patients are under 24 hour surveillance.
The respondent acknowledged that Patient A did not fit within this profile and that she did not follow her usual response to escalating doses of drugs with Patient B.
Since the complaint was filed, the respondent, in her written statement said that:
114. The investigation of the matters contained in the Complaint has had a very significant effect on me personally and professionally. I had considered myself to be a caring, compassionate and committed medical practitioner and have tried to do the best for all my patients and not to give up on them. However, I recognise that I have made errors in the way I practised.
115. I recognise that my prescribing for the patients identified in the Complaint fell short of appropriate clinical practice. Despite my experience at Jarrah House and my long career in medicine I realise that I was not able to deal appropriately with manipulative or demanding patients and I did not have in place sufficient safeguards to manage them in accordance with reasonable practice and in accordance with the legal requirements.
116. Poor record keeping resulted in the confusion over the misspelling of the name of Patient C. My medical record keeping has been criticised. I accept that criticism and have changed my method of record keeping.
117. There was also a lack of knowledge of regulations and the requirements as to the content of records and prescriptions, which meant I failed to adhere to legal requirements and the necessity for detailed and documented treatment plans. I believe I have addressed these issues. In 2008 my medical notes were audited. I understand that the auditor was satisfied with the manner in which my records have been maintained.
118. I have been mentored since the 'section 66' hearing. That mentoring has assisted me to review my past practice and to plan and implement appropriate changes. My mentor, Dr James Bell who was director of Langton Clinic told me that I was "too soft" in dealing with the complex and demanding people identified in the Complaint and considered that I should have set proper boundaries in the treatment, care and management of those patients. I have reflected a great deal on this aspect and accept Dr Bell's criticisms. I regret very much that I allowed myself to prescribe for these patients in the way I did and to manage their care as I did.
119. My current mentor is Dr Lucy Harvey-Dodds a staff specialist in drug and alcohol based at St George Hospital. My most recent mentoring session with Dr Harvey-Dodds was in November 2010. Our next session is scheduled to occur in January 2011. During the course of our sessions Dr Harvey-Dodds and I discuss problems in the clinical management of more complex and demanding patients.
120. My mentors and the further education I have undertaken have assisted me a great deal in understanding the particular demands and complexities in treating or trying to treat drug dependent patients. That is something that has been difficult to learn as I believed that one should continue to try to help one's patients. Part of the knowledge I have gained is an understanding that it is not actually helping a patient to continue to prescribe narcotics or benzodiazepines for them but may prolong the addiction and/or exacerbate related medical conditions.
121. The inability to prescribe S8 and S4D drugs and panadeine forte has restricted me in treating patients in pain. I have treated four terminally ill patients in conjunction with the palliative care team who had to prescribe S8 drugs for these patients. On many occasions I could offer only Tramadol for acute pain, as in injuries or post surgery, once simple analgesics proved to be inadequate. I continue to have a number of elderly patients who suffer from chronic pain who I co-manage with another general practitioner, specialist or clinic. I am careful not to be involved or interfere in the prescribing, administration or recommendation for these substances but continue to manage the patient's other co-morbidities. In addition a number of my patients seek out another practitioner just to be prescribed a hypnotic. I make a note of the prescriber's details and enter the information into my notes.
122. I had two instances of my patients having a fit in my rooms, and no benzodiazepine available to administer. Fortunately the ambulance arrived with good speed for the first and the second subsided without further treatment.
The respondent provided an impressive array of character references. They included an Emeritus Professor of Medicine, a Conjoint Professor of Psychiatry, Faculty of Medicine, a Professor of Ageing and Mental Health, 2 Associate Professors, 12 Doctors of Medicine, an Ophthalmologist, and a Catholic Priest.
The respondent also attached the following articles which she had read:
The Treatment of Benzodiazepine Dependence, Addiction (1994), Heather Ashton;
Withdrawing Benzodiazepines in Primary Care CNS Drugs , Vol 23(i) 1 January 2009, Malcolm Lader, Andre Tylee, John Donoghue;
The Diagnosis and Management of Benzodiazepine Dependence, Heather Ashton, Current Opinion in Psychiatry , 2005;
Three articles, indicating the Prescription Shopping Hotline was suspended in August 2002 and reintroduced on 3 January 2005.
In respect of the respondent's continuing education, she stated that she regularly attends Grand Rounds. This is hospital based and there is usually a lecture from one of the different specialties on specific topics of interest. On occasions there are visitors from overseas or interstate, or from other hospitals talking about a variety of different topics. The respondent said this is of huge relevance in that she knows the latest treatments of patients in hospital. It also introduces her to various consultants who are working in her local hospital. In addition, there is the ability to liaise with specialists. The respondent stated, for example, "if they are "on the spot I can chat to them about certain patients. I have found it very useful in the past 10 years or so I have been attending it."
The respondent said that she attends the Grand Rounds most weeks on a Wednesday morning. The respondent has also been undertaking the Check on Check program for many years. This is learning based on a monthly newsletter and monthly questionnaire together with different topics that are covered annually. A participant is required to complete a questionnaire and a score is given. A pass is 85 per cent, although participants have access to notes. She has also read a variety of medical journals and listened to broadcast "GP" tapes for many years. The respondent has also participated in professional development programs on a regular basis. She has also been involved in some research with the Dementia Unit of the Prince of Wales Hospital. This research involves examining how general practitioners can detect early signs of dementia and how it can be treated. In addition, she has been involved since she commenced at the Waratah Practice with research into Liptin, which is an oral medication for diabetics and also a Zostor study, which was examining herpes zostor in older people. The respondent has also been involved in a program called "PACE" which involved an evaluation of paracetamol and its benefits in respect of the treatment of low-back pain.
Since the Complaint, the respondent has been a participant at the Double Bay Cooper Street Clinic, which is run by Ms Sue Ireland and one of the drug companies. The Clinic is held every six weeks on a Tuesday night. A small group of general practitioners attend. Case studies are provided and specialists give talks on various topics of interest. The respondent said this was helping her. In addition, she has been involved in various mental health updates, notably for the Black Dog Institute, as well as one at the Head and Mind Centre at the University of Sydney. She has also been involved in an audit and study of identifying chronic lung disease in patients. This has involved screening and intervention with a view to motivating patients to improve their outlook by stopping smoking and keeping to their medications.
The respondent indicated to the Tribunal that she was desirous of having her Schedule 8 prescribing rights reinstated. She had been an authorised methadone prescriber before her rights were removed.
Apart from her mentoring, her evidence was that to assist her in dispensing Schedule 8 drugs, she had been to various medical updates to do with the treatment of back pain with Dr Khor and other experts in pain management. At least one of the Grand Rounds was to do with chronic back pain, which she thought was run by Dr Goreman. She has also attended a palliative care update. She also attended a Radiologist Centre which specifically dealt with CAT scans of the back and MRI imaging and how it may be beneficial to patients with severe back pain. The respondent has also attended as required, continuing professional development seminars. Her evidence was that she was not aware of any course that specifically increased one's ability to be strict in dispensing Schedule 8 drugs. She said that she was desirous of attending such a course if one existed. However, she believed that the Double Bay Cooper Street Clinic had likely been helpful in this regard as discussion occurred in respect of how to deal with difficult patients, how to motivate them and also how to say no to them. The respondent commenced attending the Clinic in November 2010.
Character evidence
Dr Harvey-Dodds was one of the referees for the respondent and her most recent mentor. She is an Addiction Medicine Specialist and a Fellow of the Australian Chapter of Addiction Medicine (Royal College of Physicians). Dr Harvey-Dodds is employed as staff specialist in Addiction Medicine in the Central Network, South Eastern Sydney and Illawarra Health Service.
Dr Harvey-Dodds took over the mentoring role of the respondent when Associate Professor Bell, the Area Director of Drug and Alcohol, moved overseas at the beginning of 2009. He had seen the respondent on three occasions: 21 October 2008, 2 November 2008 and 4 December 2008.
Dr Harvey-Dodds met the respondent for case discussion and education sessions on 26 March 2009, 7 May 2009, 11 June 2009, 10 September 2009, 10 December 2009 and 11 March 2010. These sessions continued through to 2011 with the most recent session occurring approximately two months prior to the hearing.
Dr Harvey-Dodds stated that in her opinion, the respondent was an enthusiastic general practitioner who is compassionate and dedicated to caring for her patients. She believes that the respondent upholds the standards required of a medical practitioner in terms of treating patients as individuals and respecting their dignity and without creating harm to them. She stated that she believed that the respondent held the attitude that she should attempt to take on the care of all those who approach her for advice and treatment. The respondent's concern was that if she did not provide them with this input, many of them would not be able to access this management elsewhere.
Dr Harvey-Dodds knowledge of the respondent prior to supervising her was through her work at the Langton Centre in Surry Hills. The respondent prescribed Opioid Maintenance Treatment for a number of patients that were also managed by the Centre. She was seen as hardworking and supportive of her patients. It was apparent that she did not have a conservative approach to benzodiazepine prescribing in this population.
Dr Harvey-Dodds stated that the respondent had displayed a genuine remorse for her behaviour. She believed that the respondent's intention with all her patients had been to provide treatment to enable positive outcomes. She said that the fact she had caused harm had been of great distress to the respondent. She believed that the respondent now understands the importance of setting limitations and boundaries, particularly with opiode or benzodiazepine dependent patients.
Dr Harvey-Dodds was required for cross-examination. Her evidence was that the Langton Centre is the main drug and alcohol centre in the Illawarra Health Service. It had previously been directed by Professor Bell who until recently, was the most renowned drug and alcohol practitioner in Australia. He is now working in the United Kingdom. Dr Bell asked Dr Harvey-Dodds to continue the task of mentoring the respondent. Dr Harvey-Dodds has recently moved to work in the St George area and it will not be practicable for her to continue to mentor the respondent. She has discussed with the Director of the Langton Centre, Associate Professor Nicholas Lintzeris, the respondent's situation and he is amenable to another medical practitioner within the Unit continuing with the task of mentoring the respondent.
Dr Harvey-Dodds gave evidence about discussions with the respondent regarding the administration of various Schedule 8 drugs and about boundaries between medical practitioners and patients. She believed it was absolutely beneficial for the respondent to be now working in a group practice where there was increased support for her whenever she may need it in terms of advice in respect of seeing members of the drug dependent population.
Dr Harvey-Dodds expressed the view that if the respondent was to have her entitlement to prescribe Schedule 4D and Schedule 8 drugs reinstated, it would be appropriate for up to a period of 12 months for there to be periodic audits of her prescriptions of such drugs.
During cross-examination, Dr Harvey-Dodds said that she did not think it was unreasonable to on occasions prescribe for a patient without seeing that patient. She said it would depend very much on the relationship and the history prior to that as to whether there was knowledge of previous prescriptions and whether that patient was well engaged in the Service and if it was a repeat prescription. She said it was difficult to express a view without a specific case.
In agreeing that it was appropriate to try and reduce the consumption of benzodiazepines in addicted patients, Dr Harvey-Dodds said that one of the main issues is the patient's motivation to change. If patients do not want to reduce their intake, for example Valium, and they are able to obtain supplies, whether that be from general practitioners, or on the black market, then it is very difficult as a practitioner to stop that patient continuing to take the same amount of medication. However, if a person came to her and requested support to reduce the amount that they are taking, then she would assist them.
Her evidence was that the general consensus regarding reducing the amounts of Valium 5 mg tablets would be to do it reasonably slowly, otherwise there is a risk of, for example, seizures. It would be done slowly over a number of weeks by reducing 5 mg a fortnight maximum. That would be as an out-patient. There is the opportunity to reduce it more rapidly as an in-patient. Dr Harvey-Dodds agreed that it would be necessary to see the patient, or have a phone consultation from time to time. In addition, psychological therapy was a key part of the treatment package.
Dr Harvey-Dodds did not find it surprising given the respondent's age and her level of experience as a general practitioner that she was gullible or not tough enough in dealing with drug-dependent patients. She said that in her experience, there are many general practitioners who do not notice behaviour patterns in patients. It was not the first time that she had experienced a general practitioner struggling to deal with drug-dependent patients. Dr Harvey-Dodds said that she had discussed with the respondent that if she had her prescribing rights reinstated, that key strategies such as seeking help from a specialist, such as at the Langton Centre, should be put in place. The Langton Centre has a 24 hour on-call service available for doctors. Dr Harvey-Dodds' evidence was that over the period of her mentorship with the respondent, she saw a change in her leading to a realisation concerning, in particular, the importance of boundaries, and the availability of support through the Langton Centre which had not previously been accessed by her. She acknowledged that as a result of her discussions with the respondent, she now has a greater awareness that she needs to be tougher in dealing with certain patients.
Expert evidence
Dr Ian M Chung, a general practitioner, was called by the HCCC to give his opinion in respect of the treatment of the five patients, the subject of the complaint. Dr Chung provided reports to the HCCC dated 22 March 2009, 25 July 2009, 26 November 2009 and 12 December 2010. In his report dated 22 March 2009, after analysing each of the particulars of the complaint, Dr Chung concluded as follows:
... I am very severely critical of Dr Gorondy-Novak's overall pattern of conduct with this patient group considered in this report. Her conduct attracts my very severe disapproval and in my opinion, her conduct would attract the very severe disapproval of my competent and ethical peers of an equivalent level of training or experience.
Dr Chung was extensively cross-examined in respect of his reports and the conclusions that he reached. Arising from the evidence that he gave during cross-examination, Mr Windsor submitted that the Tribunal should not accept Dr Chung's criticism of the respondent. Mr Windsor submitted that the Tribunal could not be satisfied that Dr Chung had exercised the diligence, meticulous attention to detail and professional considerations necessary for a proper assessment of the respondent's conduct; that he was, without any excuse, ill-prepared; that he offered no evidence why he did not avail himself of the brief which was readily available in his study; that the Tribunal could not be satisfied that Dr Chung checked to satisfy himself that assertions made in the letter sent to him by the HCCC regarding the respondent were correct, or at least had a reliable basis upon which he could proffer opinions and Dr Chung ought not have adopted the HCCC's ill-conceived, highly emotive and formulaic mantra to describe the respondent's conduct.
The basis for this submission was that when Dr Chung's evidence, particularly in cross-examination, was analysed, the Tribunal could not reasonably know what assumptions Dr Chung relied upon to reach his opinion. Dr Chung acknowledged that the facts that he relied upon in respect of the failure of the respondent to refer Patient A for specialist assessment were those referred to by him in his initial report from the information provided to him.
It became clear that parts of Dr Chung's report were simply a "cut and paste", taking the form of words given to him by the HCCC. In this regard, it is fair to observe his lack of attention to detail was so deficient that in one instance, in adopting the "cut and paste" method, he transposed part of an answer relating to Patient A into a written opinion concerning Patient B, which appeared to have formed the basis for his criticism of the respondent in respect of her treatment of Patient B.
Dr Chung was unable to identify what guidelines he relied upon for the purposes of his report, or the article he read for the purposes of preparing his reports. It is also clear, from Dr Chung's evidence, that he accepted what was "apparently" the position in respect of the various patients' prescription records, without checking such records. When analysed, these factors, including referring to the respondent from time to time as "him or her" raised a real concern in the Tribunal's mind as to whether Dr Chung undertook a careful and detailed examination of the material provided to him by the HCCC, or whether it was merely a cursory perusal of the material.
We accept that Dr Chung is a highly respected medical practitioner. He was critical of the respondent's conduct. The Tribunal acknowledges that Dr Chung's expertise was not challenged and that it was certain individual conclusions that he reached which were the subject of challenge and criticism. In light of Dr Chung's evidence and at least one glaring error in his report to which we have referred, the Tribunal proposes to approach Dr Chung's conclusions with caution.
Ms McNaughton acknowledged that if the Tribunal reached such a conclusion in respect of the evidence of Dr Chung it, nevertheless, was entitled to rely upon its own expertise. We agree.
In this respect, the Tribunal proposes to adopt the statement of principle by Street CJ (Moffitt P and Glass JA agreeing) in Kalil v Bray [1977] 1 NSWLR 256 in respect of the proper approach of an expert disciplinary tribunal. The Chief Justice observed at 261 - 262:
... The tribunal is in truth an expert panel, and as such it needs no expert evidence on matters within its particular field of expertise, that is to say, the field of veterinary science. Its function is to determine in the light of factual evidence, with or without supplementation by expert evidence, the proper veterinary conclusion to be drawn from such objective facts as may be established by the Evidence, bearing in mind at all times that its function is essentially, as its name imports, disciplinary. It provides a veterinary surgeon facing a charge with a forum constituted in the majority by his professional peers and supplemented, in the interests of natural justice, with judicial chairman ship.
...
The purpose of setting up the tribunal, with its membership drawn from the ranks of veterinary surgeons, is to enable it to do the very thing that either a Bench of justices or a jury may not do, that is to say, to draw upon its own expert resources to resolve such questions of expert science as might emerge from the objective, or lay facts proved in evidence before it. In doing so it will, no doubt, give due weight to such expert evidence, if any, as may be placed before it. But the ultimate responsibility for forming an expert view upon which the disciplinary powers will be exercised or withheld is with the tribunal itself. This is a responsibility to be discharged by drawing upon its own internal resources of knowledge of veterinary science.
Procedural fairness
Mr Windsor submitted that the hearing was required to proceed on the pleaded amended complaint, and the particulars contained in the amended complaint mark the area of dispute: see generally Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at 497 per Mason CJ, Wilson, Brennan, Dawson JJ (Gaudron J dissenting).
Mr Windsor further submitted that there were at least two procedural fairness requirements relevant for present purposes. The first was that the allegations against the practitioner must be specifically identified. The second was that the practitioner must be afforded an appropriate opportunity of being heard in relation to them: see Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 270.
Senior counsel submitted that the function of the complaint, like any pleading, was to state with sufficient clarity the case that must be met. In this way, it serves to ensure the basic requirements of procedural fairness that a party should have the opportunity of meeting the case against him/her and to define the issues for determination. The rule that, in general, relief is confined to that available on the pleadings, secures the party(s) right to this basic requirement: Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 per Mason CJ and Gaudron J.
Although this is clearly a correct statement of principle, this Tribunal is not and should not be seen as a court of strict pleading.
In Lindsay v Health Care Complaints Commission [2010] NSWCA 194, Sackville AJA, (Giles and Young JJA agreeing) after discussing the requirements of procedural fairness and referring to various authorities, observed at [242] - [243]:
[242] The principles stated in the cases to which I have referred do not necessarily apply to the Tribunal in the same way as they apply to proceedings in a court. The Tribunal's composition, jurisdiction and procedures differ from those normally (although not invariably) associated with a court. The membership of the Tribunal is not confined to a judge, but includes medical practitioners and a layperson: ss 147(3), 148. The Tribunal is obliged by the Act to conduct an " inquiry " into any complaint referred to it (s 159), not a function usually entrusted to a court. The Tribunal is empowered to conduct proceedings " as it sees fit ": s 161(1). It is not bound by the rules of law governing the admission of evidence, but " may inform itself of any matter in such manner as it thinks fit ": sched 2, cl 1.
[243] Despite these matters, the Tribunal has the power and authority to make orders which have the effect of terminating a medical practitioner's right to pursue his or her profession. There can be no doubt that, in exercising its powers, the Tribunal is bound to observe the rules of procedural fairness. This may suggest that the principles applicable to courts may also apply to fact finding by the Tribunal.
The object of the Medical Practice Act is to protect the health and safety of the public by providing mechanisms designed to ensure, inter alia, that medical practitioners are fit to practice medicine: s 2A of the Medical Practice Act .
There were some errors in the complaint in respect of certain dates, the complete description of a drug and a section of the Poisons and Therapeutic Goods Act 1966.
The HCCC sought to correct three errors in the amended complaint. This was objected to by Mr Windsor. Leave was granted by the Tribunal to rely on the amended complaint. In addition, leave was granted to the HCCC to withdraw particular 19.
In the Tribunal's view, in respect of the amendments, there was no denial of procedural fairness to the respondent, nor could it be properly argued that any prejudice arose. There could be no suggestion that the respondent did not understand the substance of the complaint.
Although reference was made by Mr Windsor to Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531; Fair Work Ombudsman v Centennial Financial Services Pty Ltd & Ors [2010] FMCA 86; (2010) 245 FLR 242 and Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705, the principles found in these authorities, in the Tribunal's view, are of little assistance.
We agree with Mr Windsor that the amended complaint sets out the area of dispute and confines the complaint to the assertions, the particular acts or omissions, matters or things which are relevant to the amended complaint.
Consideration
We turn to consider the complaint and each particular.
Patient A
Patient A was born in 1961. He suffered from long standing substance abuse including alcohol, benzodiazepines and codeine. His addiction to benzodiazepines dated from his teenage years. He also suffered from agoraphobia, generalised anxiety disorder. His clinical history also included chronic pain. When he was 3 years of age, he was knocked down by a car and suffered head injuries. In 2000, he suffered a concussion, low back and left knee injuries in a second motor vehicle accident. A CT scan revealed an area in the right parieto-occipital region consistent with an old small focal infarct. After suffering the concussive injury, Patient A complained of persistent headaches. The second accident also had an adverse affect on his pre-existing anxiety/panic disorder and depression. He experienced increased agitation, withdrawal and depression. The respondent stated that her consultations in 2007, pain was not a feature except for dental pain. She believed that he was taking Panadeine Forte more out of habit than need. She said she concentrated on his benzodiazepine addiction and did not consider him to be in the chronic non-cancer pain category of patients.
Patient A smoked and suffered from asthma. He was on a disability pension. He was married to Patient B and they had four daughters. The youngest had a rare congenital abnormality and had been in care since an infant. The second youngest had been diagnosed with autism. The two eldest had been treated for attention deficit disorder.
Particular 1:
1. Between 3 January 2007 and 12 March 2007 the practitioner failed to refer Patient A, a known "doctor shopper" and benzodiazepine abuser, for specialist assessment and management of his addiction to diazepam.
The respondent referred Patient A to a specialist, Dr Wodak, on 12 March 2007. The Tribunal finds that there was no failure to refer Patient A in the time period stipulated in the particular. The preposition "between", encompasses the date of the commencement and the date at the end of the period. Section 24 of the Interpretation Act 1987 provides:
24 Time of commencement of Acts and statutory rules
If an Act or statutory rule provides that it shall commence, or be deemed to have commenced, on a particular day, it shall commence, or be deemed to have commenced, at the beginning of that day.
This particular has not been made out.
Particular 2:
2. Between 3 January 2007 and 12 November 2007, the practitioner continued to prescribe diazepam tablets to a known "doctor shopper" and benzodiazepine abuser, without specialist advice and a documented management plan.
The evidence was that during 2007, the respondent continued to prescribe diazepam tablets at a very high rate without Patient A receiving any specialist intervention. The respondent's evidence was:
Q. So, not only are you saying that you in fact prescribed too much for this man: You are saying you were not even aware of the extent to which you were prescribing too much for this man?
A. That is what I am saying yes.
The first time the respondent saw Patient A was on 3 January 2007. Patient A had attended on a consultant psychiatrist on three occasions in 2006 for his drug addiction. The consultant had provided advice regarding Patient A's drug addiction, including his addiction to diazepam. Relevantly, a letter to Dr Ktenas from Dr R Hampshire, a consultant psychiatrist, dated 14 August 2006 read:
I have seen him on three occasions now, and have had no success whatsoever in getting him into a detox unit.
Whatever psychiatric problems he has underlying his addictions is not immediately apparent, as his addiction dominates his presentation. His insistence that he is unable to get off Valium is extraordinary as it is incorrect.
I am unable to offer him any treatment as he wants only to get Valium scripts.
50x5mg of Valium every 2 days.
I am happy to certify that he has a valium addiction as bad as I have ever seen, but am unable to give him the treatment he deserves.
In the event that he not (sic) link up with the Addictions Unit - say Albion St Clinic, Dr James Bell - then you will have to manage his addictions by prescribing him valium until you can get him into detox.
Thank you for referring this man, who appears to have an incurable Valium addition - not in the sense that he could not enter into a reduction program, but in the sense that he does not want to. Perhaps you could manage him by reducing him by say one tablet every month - that is, 25 per day in August, 24 per day in September etc. You could take as long as you like to reduce his doses, say 3 or 4 years.
You might also like to add an SSR1 Antidepressant, like Efexor XR - 150mg mane (sic) up to 300mg per day. They may be of some assistance in helping him get off his Valium, and also treat some of his underlying issues, which may include phobia states.
Best wishes in managing this difficult, insightless man. I am happy to review him every 6 months, in the event that you can't get him to go to the addictions unit of a local teaching Hospital - in his case Albion Centre.
The respondent's progress notes of 3 January 2007 for Patient A noted that he was to attend a consultant psychiatrist, Dr Dinnen, for treatment on 9 January 2007. The notes also record that the respondent intended to check "Doctor Shoppers". On 3 January 2007, the respondent had Patient A sign an agreement to restrict prescriptions of Valium to Waratah Medical Centre. The respondent's progress notes of 3 January 2007, also noted that Patient A was prepared to detox from 80 mg per day with reductions by one per week. She also had Patient A agree on 10 January 2007 to not obtain opiates from anywhere else.
The notes of 3 January 2007 also record that Patient A was addicted to Valium and that he "does not want to get off them - can't." The respondent convinced him to see Dr Dinnen on 9 January 2007. The evidence discloses that the respondent was using Dr Hampshire's letter as a catalyst for her ongoing management of Patient A. The reduction of diazepam was in accordance with recognised clinical practises. It was accepted by Dr Chung that successful withdrawal strategy should include gradual dosage reductions and psychological support. Dr Chung agreed that unwilling patients should not be forced to withdraw from benzodiazepines as abrupt withdrawal, especially from high doses, can precipitate convulsions, acute psychotic, or confusional states, insomnia and panic reactions.
Dr Heather Ashton, of the Clinical Psychopharmacology Unit, Department of Pharmacological Sciences, University of Newcastle upon Tyne in the United Kingdom, in an article titled "The Treatment of Benzodiazepine Dependence" expressed similar views to those of Dr Chung concerning dependency and the withdrawal from opiates. A similar view was expressed by CNS Drugs Vol 23(1) dated 1 January 2009, a document attached to the respondent's statement. It was observed that "a clearest strategy was to taper the medication; abrupt cessation can only be justified if a very serious adverse affect supervenes during treatment." The recommendation was to aim for withdrawal in six months.
Patient A had a 20 year history of drug addiction, of which the respondent was aware. The respondent, acting upon Dr Hampshire's recommendation commenced a regime to reduce Patient A's tablets at 80mg per day. This corresponded to the Jarrah House practice at the time for the commencement dose for detoxification of benzodiazepine addicts. She succeeded in reducing Patient A's intake from 25 tablets per day to approximately 18. Her aim was to reduce down to 15 or 16 tablets per day over time.
It is not without some reservations, particularly by two members of the Tribunal, that we find that the respondent had a documented management plan. It may be described as sparse and delphic. However, on balance, we find there was a documented management plan. The plan included that the dosages of diazepam were to be reduced, with the report of Dr Hampshire and the practice at Jarrah House being the starting point. Patient A was also required to sign an agreement. The respondent checked whether Patient A was a "doctor shopper". The respondent also referred Patient A to Dr Wodak, a drug and alcohol specialist.
Dr Chung's evidence was that this constituted the elements of a management plan for the care of known or suspected drug abusers. The management plan in the Tribunal's view, is consistent with the Royal Australasian College of General Practitioners Guidelines ("RACGPG"). Dr Chung also agreed in circumstances where Patient A had agreed in March 2007 to attend on Dr Wodak later in the year, it was reasonable that the respondent should continue to prescribe diazepam.
The respondent acknowledged that she should have recognised that her attempts to have Patient A withdraw from the drugs were futile. She said in light of Patient A's prevarication regarding referral and half-hearted co-operation with a treatment plan, she should have declined to prescribe further for him. Clearly, Patient A's condition was a legacy from other doctors when he came to the Waratah Centre. We would observe that patients on chronic pain medications should have an active management plan to effectively manage their condition. In addition, the respondent made little effort to enforce it. We are not comfortably satisfied that this particular has been established.
Particular 3:
Between 3 January 2007 and 12 November 2007, the practitioner continued to prescribe codeine phosphate with paracetamol 30 mg - 500 mg tablets to a known "doctor shopper" and benzodiazepine abuser, without specialist advice and a documented management plan.
When the respondent saw Patient A on 3 January 2007, she made the following record in the clinical records:
3-1-07 Taking Valium regularly seen Dr Hampshire: see letter
addiction to Valium, does not want to get off them "can't"
currently on 20 per day
will see Dr Dinnen on 9 th of January
last had script elsewhere early '06
will check [with] Dr Shoppers - Agreement signed
OK will detox from 80 a day
reducing by one per week
Valium 5 auth[ority] (250) (16 per day) disabling spasticity
P [anadeine] forte bd (120) 26308KW
29278KW
(Dr Shoppers computer down) 1800 631 181
He does feature
The respondent stated that she regarded Patient A's use of codeine with paracetamol as a secondary addiction which she could attempt to treat once his addiction to diazep am was under control.
Dr Chung acknowledged that codeine phosphate withdrawal requires a personalised approach. Furthermore, the regime of withdrawal is made more difficult in respect of patients that are multi-substance abusers, as was Patient A. For these reasons, together with those relied upon in respect of particular 2, the Tribunal is not comfortably satisfied that this particular has been established.
Particular 4:
Between 3 January 2007 and 12 November 2007, the practitioner prescribed diazepam tablets in quantities which exceeded therapeutic guidelines contrary to Clause 79 of the Poisons and Therapeutic Goods Regulation 2002,
Clause 79 provides:
79 Quantity and purpose of prescriptions to be appropriate
An authorised practitioner must not issue a prescription for a drug of addiction in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances.
Mr Windsor submitted that the particular was misleading. Senior counsel contended that on the one hand, the particular said the prescription "exceeded therapeutic guidelines" which was said to have been contrary to cl 79 of the Poisons and Therapeutic Goods Regulation 2002. However, senior counsel observed cl 79 did not speak of exceeding therapeutic guidelines, but rather, was concerned with prescribing not in accordance with "the recognised therapeutic standard".
Mr Windsor's contention was that there was no single recognised therapeutic standard. This may be so, but in the Tribunal's view, the proper interpretation of cl 79 of the Poisons and Therapeutic Goods Regulation is that the words "the recognised therapeutic standard" must be construed on the basis of recognised and accepted standards within the medical profession of practitioners of an equivalent level of training and experience as they relate to the prescribing, use and supply of drugs.
The recognised standard is informed by the RACGPG for the rational use of benzodiazepines. The RACGPG includes reference to treating drug-dependent patients using high doses of benzodiazepines on a regular basis; the Department of Health and Ageing Publication "Drugs at a Glance - Role of General Practitioners", and the MIMS guidelines.
In the Tribunal's view, and we find, there is a recognised standard within the medical profession in relation to the prescribing of drugs of addiction and/or abuse in regards to the exercise of responsible medical judgment, departure from which would be considered unacceptable by practitioners of good repute and competence. The avoidance of inappropriate use of drugs with a potential of abuse and/or addiction outside of the recognised guidelines is a standard of professional conduct that would be reasonably expected of a practitioner of an equivalent level of training and experience.
The recognised therapeutic standard of what is appropriate in the circumstances, as stated in Dr Chung's report, 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 and/or abuse to any drug;
(iv) care to protect the patient from possible side affects, 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 treating 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 and any other drug and that the patient is not at risk of addiction and/or abuse of the drug;
(vii) ensuring that the duration of the drug used not only meets with all legal requirements but also does not place the patient at any risk including the risk of addiction and/or abuse of the drug;
(viii) ensuring that the patient receives 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 pain options, eg pain clinics;
(x) accept any and all advice, instructions and counselling offered by the PSB, the New South Wales 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.
Furthermore, there is a recognised standard within the medical profession in relation to the quantities, purposes and precautions to be observed in prescribing benzodiazepines to patients. At minimum, this would include following the recommendations of the manufacturer of the drug, any guidelines of the drug and alcohol services of the NSW Department of Health and/or the professional medical associations or colleges.
Similarly, there is a recognised standard within the medical profession in relation to the therapeutic qualities in which compound codeine preparations, Panadeine Forte, Codral Forte and all similar compound codeine tablets should be prescribed to patients. The standards pertaining to the prescribing of drugs of addiction generally were applied to the drugs in this group. The recognised standard would be to not exceed the manufacturer's recommended dose which is one to two tablets, to a maximum of eight tablets in 24 hours. The continuous and consistent prescribing of codeine compounds in excess of two months may cause a development of tolerance and should be avoided.
Similarly, there is a standard within the medical profession in relation to the prescribing and administration of narcotic drugs including all opioid derivatives including morphine, oxycodone and pethidine to patients, departure from which standard it would be considered unacceptable to practitioners of good repute and competence.
In the Tribunal's view, and we find, the recognised therapeutic standard must ultimately be a matter for the Tribunal, taking into account the matters referred to above. Were this not the case, cl 79 would be otiose and could never result in a successful prosecution. The Tribunal is entitled to be informed by expert evidence, together with its own member experts, in determining the recognised therapeutic standards.
The respondent agreed that for the period over which the quantities of drugs were prescribed was contrary to reasonable therapeutic practice. Furthermore, it is to be remembered that this Tribunal is dealing with a practitioner who has been in practice since 1971. We are comfortably satisfied, for the reasons set out, that this particular has been established.
Particular 5:
Between 27 March 2007 and 23 October 2007, the practitioner prescribed codeine phosphate with paracetamol 30 mg - 500 mg tablets for a period the length of which exceeded therapeutic guidelines; and (sic).
Mr Windsor submitted that this particular was also misleading because of the use of the word "and" at the end of the particular, which implied a continuation of the particular. Senior counsel submitted, given the confusion created on the face of the particular, there ought to be no finding adverse to the respondent based on this particular.
The Tribunal rejects this contention. The particular is clear on its face and the respondent had no difficulty in dealing with it. She apparently prescribed at a rate that allowed Patient A to obtain compound codeine containing tablets at a rate of up to nine per day between 28 August 2007 and 23 October 2007. The respondent apparently prescribed during the relevant period of this particular at the rate that allowed Patient A to obtain diazepam 5mg tablets at an average of 19 tablets per day.
Once again, Mr Windsor submitted that the Tribunal could not be satisfied in the context of this case, that the treatment provisions of prescriptions over the period was contrary to therapeutic guidelines. He acknowledged that the MIMS guidelines provided a dosage and administration rate for paracetamol and codeine, but did not set a temporal limit on the administration.
We are mindful that Dr Chung acknowledged that in circumstances where Patient A had agreed in 2007 to attend on Dr Wodak later in the year, it was reasonable that the respondent should continue to manage Patient A in the interim period pending specialist assistance. However, we propose to adopt our earlier reasoning in respect of what would be "a period the length of which exceeded therapeutic guidelines." We take into account that Patient A was a difficult patient to manage because of his drug addiction. We do not again set out what is contained in his clinical notes. However, in the Tribunal's view, the prescribing needs to be seen in light of Patient A being a drug abuser and a "doctor shopper", facts which were known to the respondent.
Furthermore, the respondent's conduct should be considered in the context of her prescribing other drugs with addictive potential in conjunction with her prescribing of codeine compound medications. As we have already observed, the respondent has been in practice since 1971 and has a higher level of experience in respect of drug abuse in the community through her attendance and work at Jarrah House.
We also note that the respondent agreed that the period over which the quantities of drugs were prescribed was contrary to reasonable therapeutic practice. She stated that she had hoped to better assist Patient A's use of codeine with paracetamol once his addiction to diazepam was under control. She said that she recognised this to be an error in her therapeutic management of Patient A's use of codeine phosphate with paracetamol.
We find the respondent's conduct fell below the standard expected of a practitioner of an equivalent level of training or experience.
We are comfortably satisfied that this particular has been established.
Particular 6:
Between early 2002 and November 2007, the practitioner failed to make and/or retain proper records of her treatment of Patient A contrary to Clauses 5 & 6 of the Medical Practice Regulation 2003.
Relevantly, the Regulation provides:
Part 3 Records
5 Records relating to patients
(1) A registered medical practitioner or medical corporation engaged in the provision of medical services must, in accordance with this Part and Schedule 2, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or corporation.
(2) This clause does not affect section 127 (4) of the Act.
(3) For avoidance of doubt, contravention of this clause is not an
offence.
(4) Subclause (1) does not apply to the following:
(a) a public health organisation within the meaning of the Health Services Act 1997 ,
(b) a private hospital,
(c) a day procedure centre,
(d) a nursing home within the meaning of the Nursing Homes
Act 1988 .
(5) Subclause (4) does not:
(a) affect the application of subclause (1) to a registered medical practitioner appointed, employed, contracted or otherwise engaged by a medical corporation referred to in subclause (4), or
(b) affect the operation of section 126 (2) of the Act in relation to a record made under this clause before 18 May 2001.
6 When records are to be made
(1) A record must be made contemporaneously with the provision of the medical treatment or other medical service or as soon as practicable afterwards.
(2) This clause may be complied with by the making of further entries in a single record that relates to the patient concerned.
Schedule 2 Records relating to patients (Clause 5)
1 Information to be included in record
(1) A record must contain sufficient information to identify the patient to whom it relates.
(2) A record must include:
(a) any information known to the registered medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to his or her diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), and
(b) particulars of any clinical opinion reached by the registered medical practitioner, and
(c) any plan of treatment for the patient, and
(d) particulars of any medication prescribed for the patient.
(3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the registered medical practitioner who is treating the patient.
(4) A record must include the following particulars of any medical
treatment (including any medical or surgical procedure) that is
given to or performed on the patient by the registered medical
practitioner who is treating the patient:
(a) the date of the treatment,
(b) the nature of the treatment,
(c) the name of any person who gave or performed the treatment,
(d) the type of anaesthetic given to the patient (if any),
(e) the tissues (if any) sent to pathology,
(f) the results or findings made in relation to the treatment.
(5) Any written consent given by a patient to any medical treatment
(including any medical or surgical procedure) proposed by the
registered medical practitioner who treats the patient must be kept
as part of the record relating to that patient.
The Tribunal has inspected the records of the respondent's treatment of Patient A. The records are deficient in respect of medical history, results of any physical examination, results of any tests performed on Patient A, information concerning allergies, particulars of any clinical opinion, and the nature of treatment.
The respondent acknowledged that her record-keeping was unsatisfactory, as recommended by the Medical Council. She said that she has completely revised and updated her method of record-keeping since 2007. She has adopted most of the components of a computerised medical record-keeping system, known as Medical Director.
The respondent now practices in a large group practice and has not been the subject of any further complaints. This is a matter of particular significance as was acknowledged by the Tribunal in Dr Ghalib Mohammad Talib Hamad ; Health Care Complaints Commission v Ian Robert Hutchins (Matter No 40013 of 2008, 31 July 2009) .
At least four of the patients the subject of the complaint, could be described as stereotypical drug addicts. Each of them suffered from serious medical conditions and experienced significant pain. In respect of four of the patients, the respondent sought the assistance of specialist practitioners to assist in their treatment and management. The respondent's conduct in prescribing drugs without an Authority in respect of Patient D and Patient E was clearly irresponsible. However, taking into account all of the circumstances in respect of each of the patients, it could not be characterised as being at the extreme end of the spectrum. The respondent checked whether some of the patients were "doctor shoppers"; she entered into an agreement with Patient A to only obtain opiates on prescription from either herself or Dr Ktenas, who practiced at the Waratah Medical Centre; referred the patients to a specialist drug and alcohol counsellor, or to a pain management clinic, and had a documented management plan for each patient.
The respondent recognised that her prescribing for the patients identified in the complaint fell short of appropriate clinical practice. Despite her experience at Jarrah House and her long career in medicine, she realised that she was not able to deal appropriately with manipulative or demanding patients and she did not have in place sufficient safeguards to manage them in accordance with reasonable practice and with the legal requirements. She acknowledged that she was gullible and accepted her mentor, Dr Bell's criticism that she was "too soft" in dealing with the complex and demanding patients the subject of the complaint.
The respondent has acknowledged her deficiencies and has been mentored since the Section 66 Inquiry by firstly, Dr Bell and then subsequently, Dr Harvey-Dodds. She has also been attending the Double Bay Cooper Street Clinic. She says that her mentors and the further education that she has undertaken have assisted her a great deal in understanding the particular demands and complexities in treating or trying to treat drug dependent patients. To date, her deficiencies in treating such patients has been addressed by not permitting her to prescribe Schedule 8 drugs.
The respondent further stated that her inability to prescribe Section 8 and Section 4D drugs and Panadeine Forte had restricted her treatment of patients in pain. However, she has co-managed these patients and also a number of elderly patients, with another general practitioner, specialist, or clinic.
The Tribunal was impressed by the evidence the respondent gave in acknowledging her wrongdoing and also in achieving an intellectual understanding of the proper boundaries that need to be set in the treatment, care and management of patients with a drug dependency. The Tribunal found the respondent to be an impressive and honest witness who was not trying to hide anything from the Tribunal, but rather acknowledging that there were deficiencies in her clinical competence which needed to be addressed.
The respondent has been a general practitioner since 1971. Despite her experience, the respondent allowed herself to be manipulated by drug dependent patients. She was careless and irresponsible in administering Schedule 8 and Schedule 4D drugs, but in the Tribunal's view, not reckless, nor did she demonstrate a disregard for the law. Furthermore. on a proper analysis of the treatment of each of the patients, the respondent did not portray an indifference or abuse of the principles which accompany registration of a medical practitioner.
The Tribunal accepts that the respondent is a caring, compassionate and committed medical practitioner who tried to do the best for all her patients including those with severe drug addiction and not give up on them.
The respondent comes before this Tribunal with an unblemished record. There is no question of dishonesty or moral turpitude involved in this complaint. There is no question of financial gain. The Tribunal further finds that there is no question of deliberately engaging in conduct that could be construed as disgraceful or dishonourable.
The evidence that was set out earlier in these reasons in respect of firstly, the understanding that the respondent now has of her deficiencies that led to this complaint and secondly, the further education and mentoring that she has undertaken and continues to undertake, has enabled the Tribunal to comfortably conclude that the respondent would not engage in this kind of wrongdoing in the future. The respondent said that "this Tribunal has been a short and sharp lesson, very painful for me, as well as the shame associated with being a doctor who is not allowed to prescribe certain medications."
We have earlier referred to an impressive array of references from colleagues who spoke favourably and positively of the respondent's reputation. Each of the referees were provided with a copy of the complaint. Observations made by many of the referees included that the respondent was "principled and fair whose behaviour has always been exemplary"; "a leader within the Eastern Suburbs Medical Association"; "admired for accepting patients with difficulties and addictive problems"; "honest, upright and hardworking"; "heavily involved in ongoing medical education"; "outstanding high moral standards".
Many of the referees also spoke of the respondent's dismay, distress and genuine remorse and contrition. The following extracts are examples of the opinions held by eminent persons:
Professor Henry Brodaty, Professor Ageing and Mentor and Director of the Dementia Collaborative Research Centre both at the University of New South Wales and Director of Aged Care, Psychiatry at Prince of Wales Hospital stated:
When Dr Gorondy-Novak was more involved with her local Division of General Practice she was a strong advocate for improving general practice care of older people. This is very important as many GP's do not show a commitment to aged care generally or dementia diagnosis and care specifically.
In my interactions with Dr Gorondy-Novak I have always found her to be a person of integrity with admirable attitudes and qualities and high moral standards. I am aware of the charges that she is facing and was surprised to learn about these.
As far as I know Dr Gorondy-Novak is a doctor of high reputation particularly for her work with the Division of General Practice.
Dr Gorondy-Novak did say to me that she was remorseful about the actions that she took. She was clearly upset and tearful when she told me about these matters and asked me whether I would be prepared to provide a character reference.
Professor Brian Draper, Conjoint Professor UNSW & Assistant Director, Academic Dept for Old Age Psychiatry, Prince of Wales Hospital stated:
Dr Gorondy-Novak has always made appropriate referrals to our Service. I have not been aware of any issues of professional concern with the patients that we have had in common and, specifically, I have not noticed any aberrant prescribing patterns. Her work for the local division of general practice from my perspective of being outside of the division seems to be exemplary.
Dr Harvey-Dodds, the respondent's mentor and an Addiction Medicine Specialist and Fellow of the Australian Chapter of Addiction Medicine (Royal Australasian College of Physicians) to whose evidence we have already referred observed:
I believe she is caring and compassionate in nature and that she aims to practice medicine for the good of her patients without creating harm. I believe that she upholds the standards required of a Medical Practitioner in New South Wales in terms of treating patients as individuals and respecting their dignity and their right to confidentiality. I believe that she has held the attitude that she should attempt to take on the care of all those who approach her for advice and treatment. The concern for her would be that if she did not provide them with this input, many of them would not be able to access this management elsewhere.
Dr K E Khor, Director, Department of Pain Management, Conjoint Senior Lecturer, UNSW, Prince of Wales Hospital observed:
Dr Novak would often call to ask for advise (sic) and in my opinion, had always been cautious, considerate, caring, always seeking the test option for her patients and never trivialise any issues. I do not recall any patients where I have felt that Dr Novak had grossly mismanage (sic) their case. I consider her a good GP and a colleague.
Dr George Marinos, Consultant Gastroenterologist and Hepatologist, who has known the respondent for the past eight years observed:
In my opinion Dr Gorondy-Novak practices medicine at an exceedingly high standard. I regard her as an excellent diagnostician and a most competent practitioner. I know her as highly competent and extremely responsible doctor who is most considerate in her dealings with her patients. Many of our mutual patients speak extremely highly of her abilities, her management and care. I know her to be extremely intelligent, hardworking and highly motivated professional. She has also shown a dedicated approach to her medical profession and has consistently delivered a high-quality medical service to her local community. I would rank Dr Gorondy-Novak as one of the most caring and experienced General Practitioners servicing our community.
Professor John M Dwyer, Emeritus Professor of Medicine and Head of the School of Medicine for the University of New South Wales at Prince of Wales Hospital from 1985 to 2005 observed:
Kinga plays an important role in bridging hospital and community services. She is a caring and skilled physician committed to continuous learning and teaching. For many years she has contributed significantly to the Hospital's major weekly educational meeting. Compassion, patient focus, experience and common sense are constantly appreciated as characteristics of her interactions with her peers.
I hold her in the highest esteem. I have read the details of the complaints made to the Medical Tribunal concerning some aspects of Dr Gorondy-Novak's treatment of certain patients by the Health Care Complaints Commission, but these have not led me to change the opinions expressed above. I have not discussed any aspect of the complaints with Dr Gordondy-Novak.
Appropriate orders
In determining the appropriate orders to be made, the primary consideration for the Tribunal is the protection of the public and not to punish the practitioner. Such protection itself involves a consideration of the gravity of the conduct, the risk of a recurrence of the misconduct, the need to deter other medical practitioners from engaging in similar conduct and to maintain the standards of the medical profession and public confidence in it.
In Litchfield , the Court of Appeal in stating that the Tribunal's jurisdiction must be exercised bearing in mind the high standards required of medical practitioners in the practise of their profession, stated at 637:
Moreover there was nothing to suggest that the doctor had become a changed person during the four and a half years since the last of the incidents. The nature of his defence precluded any admission of guilt or expression of contrition. In these circumstances the long period between the first and last complaints was a factor which operated in favour of an order for removal. There was no claim that these incidents reflected "some isolated or passing departure from proper professional standards amounting to something less than proved unfitness": see New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183 .
In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461 ; 84 WN (NSW) (Pt 2) 275 at 286 :
... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred.
If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man."
Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession.
Lapse of time since the events giving rise to a complaint will be relevant in determining whether disciplinary proceedings can be fairly determined or should be stayed as an abuse of process. It may also be relevant in determining whether the doctor has undergone a reformation of character and behaviour, or whether the incidents can be viewed as isolated or passing departures from proper professional standards or attributed to youth or inexperience. Lapse of time appears to have no other relevance and the Tribunal erred in relying on it as it did.
As to the gravity of the misconduct, the Court of Appeal said at 638:
The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal. ...
In determining the appropriate protective order, the Tribunal has taken into account the seriousness of the conduct; the admissions made by the respondent; the evidence that the practitioner has reformed; contrition and responsibility taken by the respondent, and the risk of recurrence.
As the primary focus in determining protective orders is the protection of the public, subjective factors relating to the practitioner, such as her shame and personal ordeal, or absence of any other "blemish", have little or no weight: Buttsworth v Walton (Court of Appeal, 19 December 1991, unreported).
In relation to the likelihood of the repetition of the misconduct, the Tribunal is firmly of the opinion that the respondent will not repeat her past misconduct. The Tribunal has arrived at this opinion as it considers the respondent committed the misconduct through a naivety and not a deliberate departure from acceptable standards. Her intention was to help very difficult patients get over their addiction, but she clearly made errors of judgment.
The respondent has been the subject of conditions which precluded her from prescribing scheduled drugs for the past three years. This fact, together with the evidence of her insight into her deficiencies and her attempts to address those, leads us to conclude that it is highly unlikely that she would transgress again.
The Tribunal is satisfied that if the respondent's right to prescribe Schedule 4 and Schedule 8 drugs is not reinstated, then the Tribunal can be confident that the public are not at risk by permitting the respondent to practice with conditions. Such conditions are intended to ensure that for a further period of time, the respondent continues with her education in respect of the matters that brought her before the Tribunal. We have also taken into account that the respondent is currently employed in a group medical practice.
The Tribunal is mindful that an element of deterrence is required to assure the public that serious lapses in the conduct of practitioners will not be passed over, or put aside. Taking into account the circumstances of this case, the Tribunal considers that this deterrence can be achieved by means of imposing conditions upon the respondent's registration.
Costs
The question of costs is reserved. Any application in respect of costs should be made to the Deputy Chair within 14 days of the date of this Determination.
Findings and orders
1. The Tribunal finds particulars 4, 5, 6, 7, 8, 9 (excluding the failure to have a management plan), 10 (excluding the failure to have a management plan), 11, 12(c), 13, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27 and 28 are proved.
2. The Tribunal finds that the practitioner's particularised conduct as proved in respect of particulars referred to in Order 1, with the exception of particulars 6, 11, 18, 24 and 28 amounted to professional misconduct.
3. The Tribunal finds that the practitioner's failure to make proper records (particulars 6, 11, 18, 24 and 28) amounted to unsatisfactory professional conduct.
4. The Tribunal reprimands Dr Gorondy-Novak.
5. Pursuant to s 61(1)(c) of the Medical Practice Act 1992, Dr Gorondy- Novak's registration is subject to the following conditions:
(1) Not to prescribe, possess, supply, administer, handle or dispense any drug of addiction (drugs under Schedule 8 of the New South Wales Poisons List) or any prescribed restricted substance (Schedule 4D drug or Schedule 4D derivative under Appendix D of the Poisons and Therapeutic Goods Regulation 2002) or Codeine Phosphate 30 mg with Paracetamol compound preparation (Schedule 4). In order to comply fully with this condition, the Tribunal directs:
(a) Her authorities as a medical practitioner under the provisions of the Poisons and Therapeutic Goods Regulation 2002 to 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) or Codeine Phosphate 30 mg with Paracetamol compound preparation are withdrawn and remain withdrawn.
(b) Any subsequent change in her Schedule 8 and/or Schedule 4D and/or Codeine Phosphate 30 mg with Paracetamol compound preparation authorities must be in accordance with the Council's protocol. Prior to the submission of any variation application to the Pharmaceutical Services, Department of Health, NSW she must seek and obtain approval of the Council to the lifting of this condition and to the reinstatement of any prescribing authority.
(2) As part of any application for restoration of her Schedule 4D and/or Schedule 8 authorities, she is required to satisfy the Council that she has successfully completed at her own expense a course offered by the Pharmaceutical Services of the NSW Health Department to ensure she has a proper knowledge of prescribing practices and requirements, particularly in respect of Schedule 8 and Schedule 4D drugs. (We are aware that she has already completed a prescriber's course with another organisation).
(3) To authorise and consent to any exchange of information between the Council and Medicare Australia or the Pharmaceutical Services of the NSW Health Department where such exchange is necessary to facilitate the monitoring of compliance with these conditions.
(4) Within 28 days of the date of receipt of this Determination she is to notify and provide for approval by the Council the name and professional address of a general practitioner in a senior position who has agreed to act as her professional mentor. The mentor is to be provided with a copy of Guidelines for Mentors as provided by the Council and a copy of this Determination. The practitioner is to ensure that:
(a) She and the mentor meet on a two monthly basis for at least two hours, the first meeting to occur within one fortnight of being advised that her nominated mentor has been approved.
(b) She is to authorise the mentor to report, in an approved format, to the Council every four months about the fact of contact, and to inform the Council if there is any concern about her professional conduct, health or personal wellbeing.
(c) She is to authorise the mentor to notify the Council of any failure to attend, termination of the mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate.
(d) She will meet with the mentor for an initial period of nine months from the date of this Determination and therefore for such period as the Council may determine.
(e) In the event that the approved mentor is no longer willing or able to continue as mentor, she is to nominate another mentor for approval by the Council within 28 days of the cessation of the original mentor relationship.
(f) She is to be responsible for any costs associated with the mentoring process.
(g) The meetings should include discussion of the issues highlighted in the Tribunal's Determination including documented management plans for patients, appropriate prescribing practices particularly in respect of stereotypical drug addicts, reference of drug addicts to a specialist, and the various legislative and regulatory requirements that need to be met for proper medical practice and any personal and/or medical practice issues that may arise.
(5)To complete within nine months of the date of this Determination and at her expense the distance education course "Issues in General Practice Prescribing" conducted by the Department of General Practice, Monash University, Melbourne:
(a) By close of business Friday 29 July 2011, she must provide documentary evidence to the Council of enrolment in the "Issues in General Practice Prescribing" course.
(b) Within two weeks of completing the "Issues in General Practice Prescribing" course, she is to provide documentary evidence to the Council that she has satisfactorily completed the course.
6. Conditions 1, 2, 3 and 4 are to remain in place for a period of nine months from the date of this Determination. The Medical Council of New South Wales is the appropriate review body for the purpose of any review of these conditions after the expiry of that period. The Medical Council of New South Wales may remove or vary the conditions as it considers appropriate.
7. Whilst these conditions apply to the respondent's registration as a medical practitioner, she is to continue to be employed in a group medical practice. A group medical practice is one that employs a minimum of three full time medical practitioners. The respondent is to ensure, within seven days of the date of this Determination, that all practitioners in the group medical practice where she is employed are aware of the conditions imposed on the respondent's registration.
8. Pursuant to Clause 6 of Schedule 2 of the Medical Practice Act 1992 the Tribunal has ordered that there be no publication of the names of the patients or of any material capable of identifying the patients.
**********
Decision last updated: 30 June 2011
0
20
5