Health Care Complaints Commission v Robert Sims

[2010] NSWMT 17

New South Wales

Medical Tribunal

CITATION:	Health Care Complaints Commission v Robert Sims [2010] NSWMT 17
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission (Complainant) Robert Sims (Respondent)
FILE NUMBER(S):	40021 of 2009
CORAM:	Backman J - Kendrick, Dr J - Spark, Dr R - Kiel, Ms H
CATCHWORDS:	Unsatisfactory professional conduct - professional misconduct
LEGISLATION CITED:	Medical Practice Act 1992 (NSW) Medical Practice Regulation 2003 Poisons Regulation 1994 Poisons and Therapeutic Goods Act 1966
CASES CITED:	Health Care Complaints Commission v Balaji Rao, Medical Tribunal of NSW, 40014/09, 18 June 2010; Lindsay v Health Care Complaints Commission [2010] NSWCA 194; Re Dr Vitols (Medical Tribunal of NSW, 4 May 2010); Spicer v New South Wales Medical Board & Ors (unreported) NSW Court of Appeal, 19 February 1981
DATES OF HEARING:	23 April 2010 21 June 2010
DATE OF JUDGMENT:	30 November 2010
LEGAL REPRESENTATIVES:	Ms K Eastman, of counsel (Complainant) Health Care Complaints Commission Mr M Lynch, of counsel (Respondent) Tress Cox Lawyers
ORDERS:	Not apply for re-registration for nine months

JUDGMENT:

MEDICAL TRIBUNAL OF NEW SOUTH WALES

DEPUTY CHAIRPERSON: BACKMAN J

Members: DR J KENDRICK

DR R SPARK

MS H KIEL

Tuesday, 30 November 2010

Matter No MT 40021 of 2009

Health Care Complaints Commission v Robert Sims

Complaint under s 39(2) and s 90B(3) of the Health Care Complaints Act 1993 (NSW) and s 51(1) of the Medical Practice Act 1992 (NSW)

DECISION

[2010] NSWMT 17

SUPPRESSION ORDER

Preliminary matters

1 These proceedings are constituted by a Notice of Complaint brought against the respondent, Mr Robert Sims, by the complainant, the Health Care Complaints Commission (HCCC). The complaint alleges that the respondent, being a medical practitioner registered under the Medical Practice Act 1992 (the Act), has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of sections 36 and 37 of the Act in that he has:

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

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

(iii) contravened the Medical Practice Regulation 2003.

2 The particulars of the complaint are both comprehensive and broad-ranging. They concern the respondent's alleged conduct, in many instances spanning some years, with regard to a number of patients treated by the respondent during that period. The patients concerned are referred to in the complaint as Patient A to Patient Q inclusively.

3 Before proceeding to a consideration of the complaint we should deal with a number of preliminary matters raised by the parties.

4 Many of the allegations, the subject of the complaint, were admitted in writing by the respondent who sought to rely on s 159 of the Act. That section provides:

The members of the Tribunal are to conduct an inquiry into any complaint, matter or application and are to hear any appeal referred to it. No inquiry need be conducted into a complaint if the registered medical practitioner who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal.

5 A number of other allegations set out in the particulars of the complaint are not admitted by the respondent. Particular 6 of the complaint was not pressed by the HCCC.

6 Section 60 of the Act is also of relevance when a registered medical practitioner admits the complaint in writing to the Tribunal. That section provides:

A committee or the Tribunal may exercise any power or combination of powers conferred on it by this Division if it finds the subject-matter of a complaint against a person to have been proved or the registered medical practitioner who is the subject of the complaint admits to it in writing to the Committee or Tribunal.

7 According to the respondent, the combined operation of s 60 and s 159 permits the Tribunal to dispense with the requirement to conduct an inquiry into the particulars of the complaint which have not been admitted. As we apprehend the submission this is because the words used in s 60 and s 159, "the subject matter of the complaint", refer to an admission that the respondent has engaged in unsatisfactory professional conduct and professional misconduct, as opposed to admissions to each particular of the complaint. This construction is only available if the words "subject matter of the complaint" are not amenable to the alternative construction consistent with each particular of the complaint.

8 The HCCC disputed the respondent's construction of the two provisions and submitted that the admissions in writing were to a number of the particulars of the complaint, as opposed to a generalised admission to unsatisfactory professional conduct and professional misconduct. The non-admitted particulars, it was said, form part of the subject matter of the complaint and therefore remain the subject of an inquiry which the Tribunal must undertake. In so contending, the HCCC sought to emphasise that the admitted particulars nevertheless represented the most serious aspects of the respondent's conduct and constituted conduct sufficient to justify the respondent's de-registration, "if Dr Sims remained on the register".

9 This last mentioned qualification by the HCCC arises because, as the Tribunal was informed on the day of the hearing, the respondent had earlier had his name removed from the register of medical practitioners on 1 June 2010.

10 It seems reasonably clear, in the Tribunal's view that the words "subject matter of the complaint" in s 60 and s 159 apply to the content of the complaint which includes all of the factual particulars of the complaint. It is necessary therefore to conduct an inquiry and make appropriate findings in relation to those particulars of the complaint which have not been admitted. Any other construction of the provisions would be inconsistent with the Tribunal's duty to decide on the appropriate orders to be made after hearing and assessing the full extent of the conduct of the practitioner, which is the subject matter of the complaint.

11 Under s 64(1)(b) of the Act, the Tribunal has power to direct that a person be de-registered if it is satisfied, when it finds on a complaint about the person, that the person is guilty of professional misconduct. Under s 64(2) an order that a person be de-registered is deemed to be an order that the person not be re-registered, if that person has already ceased to be registered. Under s 64(3) an order under s 64 may also provide that an application for review of an order under Division 3 of Part 6 of the Act may not be made, "until after a specified time". Division 3 of Part 6 concerns a person's right of review of orders, including orders of the Tribunal that the person not be re-registered (s 92(1)(b)). An appropriate review body for the purposes of Division 3 of Part 6 may, after conducting an inquiry into a person's application for review, do a number of things which include making an order for re-instatement to the Register under s 94(1)(c). Under s 94(4) of the Act, an order for re-instatement made under s 94(1)(c) may also provide that the order not be reviewed until after a specified time. In these proceedings, the HCCC seeks an order, in reliance on the combined operation of these provisions and consequent upon a finding of professional misconduct, that the respondent not be re-registered for a period of 12 months. The respondent seeks the same order.

12 The respondent chose not to attend and take part in the proceedings before the Tribunal. He was, however, legally represented throughout the proceedings. In addition, evidence was tendered on his behalf, without objection by the HCCC. This evidence comprised the respondent's statement of 28 February 2010 in which he admitted a number of the particulars of the complaint and sought to explain some of the conduct constituting the subject matter of the complaint. Also tendered on the respondent's behalf was a letter dated 20 May 2010 written by his legal representatives which advised that the respondent also admitted particular 12 of the complaint. A letter of 23 April 2010 to that effect was attached to the 20 May 2010 letter.

13 During oral hearing, the HCCC submitted that it was appropriate for the Tribunal to have regard to the respondent's statement but that little weight should be given to the material in the statement purporting to deal with the particulars to which admissions were not made. The HCCC also sought to draw to the Tribunal's attention that the respondent did not tender any evidence which might have assisted his case in relation to his understanding and acceptance of professional standards demanded of the medical profession. A number of authorities were cited to the Tribunal in support of the submission. The HCCC also informed the Tribunal that on 17 June 2010 (before the commencement of proceedings) it had requested that the respondent be available for cross-examination.

14 As a preliminary observation, the Tribunal notes that no application that the respondent be available for cross-examination was made to it at any stage during the proceedings. The Tribunal does not give any weight to an informal request made to the respondent during negotiations conducted between the parties in the absence of the Tribunal. As to the authorities relied upon by the HCCC, none of them deal with the circumstances with which the Tribunal is confronted, namely, a respondent who chooses not to attend the proceedings and make himself available for cross-examination, but who also has tendered into evidence on his behalf material to which no objection is taken by the opposing party. This is not to say that the absence of any material before the Tribunal relied on by the respondent with respect to any insight into his (admitted) conduct and any contrition cannot be taken into account. Clearly, it may be a relevant consideration with regard to the appropriate protective orders to be made: Health Care Complaints Commission v Balaji Rao , Medical Tribunal of NSW, 40014/09, 18 June 2010 at [97]. We should add for completeness that the respondent did not require any witnesses for cross-examination.

15 With these matters in mind the Tribunal proposes to approach the proceedings on the basis of the unchallenged material which has been received into evidence, giving what weight it can to that material and bearing in mind the absence of any evidence forthcoming from the respondent which might otherwise have assisted the Tribunal in assessing appropriate protective orders.

The complaint

16 The particulars of the complaint against the respondent are set out in full below. The respondent made written admissions in accordance with s 159 of the Act to particulars 1, 2, 3(a), 5, 7, 8(b) to (d) inclusive, 9(b) to (d) inclusive, 10(d) to (e) inclusive, 11 and 12:

Patient A
1. From about September 1986 the practitioner commenced an inappropriate personal relationship and sexual relationship with Patient A, whom he later married.
Patient B
2. On or about 18 April 1995, the practitioner commenced an inappropriate personal relationship and sexual relationship with Patient B, whom he later married.
3. From about 17 February 1999 to July 2005, the practitioner treated Patient B and prescribed and administered medication to Patient B:
(a) contrary to NSW Medical Board ("Board") policy, Medical Practitioners Treating Relatives and Self (August 2001) ; and/or
(b) without adequate explanation, without adequate clinical indication and exercising responsible medical judgment as to whether it was appropriate to administer certain medication.
4. Between 22 November 1995 and July 2005, the practitioner used supplies of pethidine and morphine from his doctor's bag and administered them to Patient B and in doing so failed to make and retain proper records:
(a) with respect to the use of emergency doctor's bag supplies in a drugs register contrary to clause 84 of the Poisons and Therapeutic Goods Regulation 1994; and clause 81 of the Poisons and Therapeutic Goods Regulation 2002;
(b) in a drug register, contrary to clauses 113 and 114 of the Poisons and Therapeutic Goods Regulation 1994; and clauses 111 and 112 of the Poisons and Therapeutic Goods Regulation 2002.
Patients C, D and E
5. Between on or about 22 November 1995 and March 2005, the practitioner treated, Patients C, D and E, contrary to Board Policy, Medical Practitioners Treating Relatives and Self (August 2001) .
6. On 17 August 2003, the practitioner wrote a prescription for morphine in the name of Patient E, in order to obtain medication for Patient B contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2002.
Patient F
7. Between 3 December 2003 and 8 September 2006, the practitioner prescribed Benzodiazepines (Temaze, Diazepam and Valium), being restricted substances within the meaning of section 4 of the Poisons and Therapeutic Goods Act 1966 to Patient F:
(a) without adequate clinical indication and without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions;
(b) in quantities in excess of therapeutic guidelines and for a purpose outside therapeutic guidelines contrary to clause 33 of the Poisons and Therapeutic Goods Regulation 2002 (NSW);
(c) in combination outside therapeutic guidelines;
(d) for a period outside therapeutic guidelines;
(e) when the practitioner knew or ought reasonably have known that Patient F was drug dependent.
Patient G
8. Between 27 September 2004 and 17 March 2006, the practitioner prescribed restricted substances within the meaning of section 4 of the Poisons and Therapeutic Goods Act 1966 (Codeine Phosphate and Tramal) to Patient G:
(a) in quantities in excess of therapeutic guidelines contrary to clause 33 of the Poisons and Therapeutic Goods Regulation 2002;
(b) for a period outside therapeutic guidelines;
(c) in a combination outside therapeutic guidelines; and
(d) the practitioner failed to make and/or retain proper records of his treatment of Patient G contrary to:
(i) clause 5 of the Medical Practice Regulation 2003; and
(ii) clauses 81, 111 and 112 of the Poisons and Therapeutic Goods Regulation 2002.
Patient H
9. Between 18 February 2004 and 24 November 2005, the practitioner prescribed drugs of addiction (Endone and Oxycontin) within the meaning of section 4 of the Poisons and Therapeutic Goods Act 1966 to Patient H:
(a) in quantities in excess of therapeutic guidelines contrary to clause 33 of the Poisons and Therapeutic Goods Regulation 2002;
(b) for a period outside therapeutic guidelines;
(c) in a combination outside therapeutic guidelines; and
(d) the practitioner failed to make and/or retain proper records of his treatment of Patient H contrary to:
(i) clause 5 of the Medical Practice Regulation 2003; and
(ii) clauses 81, 111 and 112 of the Poisons and Therapeutic Goods Regulation 2002.
Patient I
10. Between 31 March 2004 and 31 December 2005, the practitioner prescribed Benzodiazepines (Ativan, Xanax, Serapax), being restricted substances within the meaning of section 4 of the Poisons and Therapeutic Goods Act 1966 to Patient I:
(a) without adequate clinical indication and without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions;
(b) in quantities in excess of therapeutic guidelines and for a purpose outside therapeutic guidelines contrary to Clause 33 of the Poisons and Therapeutic Goods Regulation 2002;
(c) in combination outside therapeutic guidelines;
(d) for a period outside therapeutic guidelines; and
(e) the practitioner failed to make and/or retain proper records of his treatment of Patient I contrary to:
(i) clause 5 of the Medical Practice Regulation 2003; and
(ii) clauses 81, 111 and 112 of the Poisons and Therapeutic Goods Regulation 2002.
Patients J-Q
11. Between 5 January 2004 and 3 November 2006, the practitioner prescribed drugs of addiction within the meaning of section 4 of the Poisons and Therapeutic Goods Act 1966 to Patients J to Q:
(a) before 1 January 2006 in the case of drugs of addiction without an appropriate authority contrary to section 28 (now repealed) of the Poisons and Therapeutic Goods Act 1966;
(b) after 1 January 2006 in the case of the drugs of addiction without an appropriate authority contrary to section 28 of the Poisons and Therapeutic Goods Act 1966.
The Practitioner
12. Between 1 January 2004 and 31 December 2006 the practitioner failed to give written notice to the Director General of the NSW Health Department that his drug register for the period 1 January 2004 to 31 December 2006 was lost or destroyed contrary to clause 118 of the Poisons and Therapeutic Goods Regulation 2002.

Background

17 The respondent was first registered as a medical practitioner on 3 January 1976. In November 1976, he commenced practice as a general practitioner in Kiama Downs conducting a general practice in the Illawarra/Shellharbour area.

Particular 1: Patient A

18 In September 1986, the respondent commenced a sexual relationship with Patient A and on 22 July 1989 they were married. Patient A became the respondent's patient in about July 1983. They separated in November 1995 and divorced in April 1997. According to Patient A, the respondent continued to treat her after their separation. In his statement, the respondent admitted that his relationship with Patient A was "ill-advised and inappropriate". He said he was unaware of the Board's policy regarding sexual relations with patients prior to 1991. He referred to a Board policy entitled "Sexual Misconduct" dated some time in 1991 but said he had no recollection of receiving or reading that policy (the 1991 policy).

19 The HCCC tendered a copy of the 1991 policy. It advocates in strong terms against doctor-patient sexual activity and sets out a number of reasons why sexual relations with a patient is not appropriate. Extracts from the 1991 policy usefully illustrate these points:

1. It is an absolute rule that a medical practitioner who engages in sexual activity with a current patient is guilty of professional misconduct.
...
5. The rationale for the Board's position has been supported in many contexts by medical disciplinary authorities. Reasons for the rule include the following:
a. The doctor-patient relationship depends upon the ability of the patient to have absolute confidence and trust in the doctor.
b. The doctor is in a unique position regarding physical and emotional proximity. Patients are expected to disrobe and to allow doctors to examine them intimately.
c. The doctor-patient relationship is not one of equality. In seeking treatment, the patient is vulnerable. Exploitation of the patient is an abuse of power.
d. The doctor's role is one of authority by virtue of the patient seeking assistance and guidance.
e. Breaches of the doctor-patient relationship have often caused severe psychological damage to the patient.
f. The community expectation of the medical professional is one of utmost integrity. The community must be confident that personal boundaries will be maintained and that patients are not at risk.
g. Improper sexual conduct by doctors brings community censure and damages the credibility of the medical professional (sic) as a whole.

h. The onus is on the doctor to behave in a professional manner and it is unacceptable to seek to blame the patient if a sexual relationship develops.
i. Personal involvement with the patient will often lead to clouding of judgment.

20 Dr Jeremy Bunker who, upon request from the HCCC provided an independent review of this matter and other matters, delivered the following opinion of the respondent's conduct in commencing sexual relations with Patient A:

I regard this as a significant breach of trust. The standard is that general practitioners should not exploit any professional relationship by commencing significant personal or sexual relationships with patients. This has been increasingly clearly the standard over the last 15 to 20 years. This standard recognises that there is an imbalance - at least potentially - in the power within any relationship that is established between a doctor and a patient.

Particular 2: Patient B

21 The respondent first attended Patient B in a professional capacity in about 1977. On or about 18 April 1995, while Patient B remained a patient of the respondent, they commenced a sexual relationship and by November 1995 they commenced living together. In June 1998, the respondent and Patient B were married. In July 2005 they separated and on 7 June 2006 they divorced. The 1991 policy applied to the respondent during this period. The respondent also admitted that his behaviour in entering into a sexual relationship with Patient B was "inappropriate".

Particulars 3(a) and 5: Patients B, C, D and E

22 During February 1999 until July 2005 the respondent remained Patient B's treating doctor. During 22 November 1995 and March 2005 the respondent also treated Patient B's children (Patients C, D and E) from a previous marriage. This latter period coincided with the period during which Patient B and the respondent commenced a sexual relationship and were living together. In these circumstances, the treatment of Patient B and her children was contrary to the Board's prevailing policy entitled, "Medical Practitioners treating relations and self (August 2001)" (the August 2001 policy).

23 The respondent admitted these matters, although in relation to Patient B he sought to explain that the treatment occurred by default and that efforts had been made on several occasions to have other doctors assume her primary case.

24 In relation to Patients C, D and E, the respondent said that he believed there was nothing inappropriate about his treatment of those patients. According to the HCCC, however, the allegation focuses on a more general proposition that the respondent's conduct was contrary to the August 2001 Policy.

25 A central rationale consistent with the August 2001 Policy against the treating of relatives by practitioners in particular its relevance to children undergoing treatment was explained in Re Dr Vitols (Medical Tribunal of NSW, 4 May 2010):

1. Good medical practice dictates that doctors keep an appropriate professional distance from patients they treat. Save in emergencies, doctors of good standing do not treat members of their immediate families or their friends or their friends' children. A significant reason for that is the need for a medical practitioner to be and remain objective. Without objectivity the practitioner may lack the ability to give appropriate advice and render the right treatment.
2. Where the patient is a child there is a particularly heavy onus on a doctor to ensure these professional boundaries are respected. The child cannot necessarily be expected to know the reason or be able to recognise the need for boundaries so it is up to the doctor then to recognise situations where treatment of a child must be left to another.

26 We adopt those observations as significant and relevant to the present proceedings.

Particular 3(b): Patient B

27 Particular 3(b) has been earlier set out. It alleges that the respondent treated, prescribed and administered medication to Patient B, "without adequate explanation, without adequate clinical indication and exercising medical judgment as to whether it was appropriate to administer certain medication". The respondent contests this allegation.

28 Patient B gave a statement in which she described the respondent's continued treatment of her medical problems during their marriage:

Bob and I got married on 13/6/1998. I continued to be his patient. When he moved in with me, Bob took control of my medication. Bob would prescribe and administer all medication to me. I was never allowed to get my own medication. I would have to sign Medicare forms for Bob during our relationship and after we were married.
...
On one occasion ... I was at my sister-in-law's house and bending down at the open fridge. Bob came up behind me, pulled down my pants and gave me an injection ... I said what was that for? Bob said, "I could see you were in pain". My sister in law is a witness to this incident.
Bob would give me a handful of tablets to take and I wouldn't know what they were. During the last few years of our marriage I was doped out all the time. I was in bed every night from 8pm until 10am in the morning. My kids are witnesses to how doped up I was and they have since discussed it with me. In the last few months of our marriage Bob would just give me needles and would say I needed them. I wouldn't remember anything until the next morning after the first injection and tablets at 8 o'clock at night.

29 Dr Bunker commented on this conduct, based on Patient B's version of events in the following terms:

The standard of any intervention by a medical practitioner is that informed consent by (sic) obtained, except in the narrow range of circumstances where it is impossible to obtain informed consent and emergency treatment is indicated.
It would be inappropriate for Dr Sim's (sic) to give his wife any medication without her understanding of what they were, since it would be impossible to obtain informed consent without providing this information.
If this allegation was proven then the conduct involved falls significantly below the standard expected of a practitioner of an equivalent level of training or experience and attracts my strong criticism.

30 On 17 February 1999 (after the respondent and Patient B were married) the Pharmaceutical Services Board (PSB) of the NSW Health Department (the Department) wrote to the respondent following a visit to his surgery by an officer of the Department. The letter expressed concerns with regard to the officer's inspection of records at the surgery which disclosed that the respondent had been prescribing pethidine to Patient B (then his wife) for more than two months without applying for or being issued with an authority under s 29 of the Poisons and Therapeutic Goods Act 1966 (PTG Act). The letter also confirmed advice given to the respondent by the officer concerning the need to separately and accurately account for the drugs of addiction that come into his possession.

31 On 4 March 1999, the respondent replied to the PSB letter in the following terms:

As indicated to Mr Szwarcberg at the time of his visit to my surgery on the 15th February 1999, my prescribing of schedule 8 drugs to my wife, [Patient B], had already ceased. At the time of his visit, she was undergoing treatment in hospital for her primary problem as well as to explore other ways of more adequately controlling her painful problems. Since her discharge from hospital she has made contact with another General Practitioner in the area, whom she will continue to see for problems as they arise. I will certainly not be prescribing any further schedule 8 drugs for [Patient B].
I thank you also for your advice regarding the maintenance of an accurate account kept at the surgery of drugs of addiction. Such has been commenced.

32 In his statement tendered into evidence during the proceedings, the respondent referred to the visit to his surgery by the departmental officer on 15 February 1999 after which he said he ceased prescribing narcotics to Patient B, except in emergencies when he administered to her narcotics for pain relief either from his Doctor's Bag supplies or from prescriptions issued by other treating doctors.

33 Records from a number of pharmacies which dispensed prescriptions issued by the respondent show that on 17 May 2005, 25 July 2005, 8 August 2005 and 27 August 2005 the respondent wrote scripts in Patient B's name for Murelax, a Schedule 4 Appendix D drug (S4D) under the Poisons and Therapeutic Goods Regulation 2002 (2002 Regulation). The records also show that on several occasions between about 2000 and 2005 the respondent prescribed various medications to Patient B. None of these medications appear to be Schedule Eight (S8) drugs of addiction under the Poisons List.

34 In his statement the respondent said that he prescribed Zomig, Dihydergot and Valium for Patient B's migraine in about November 1997. His statement also indicates that prior to the letter from the PSB, but within part of the period alleged in particular 3(b) of the Complaint, he had been prescribing narcotics (S8 drugs) for Patient B. After the PSB letter the respondent said he only prescribed narcotics to Patient B in emergencies and also administered narcotics to her either from his Doctor's Bag supplies or from prescriptions issued by her other treating doctors.

35 Dr Bunker, in his report, considered that it would be appropriate for the respondent to prescribe for his wife in the following circumstances:

(a) In an emergency.
(b) Where the prescription has been initiated by another practitioner and the doctor is continuing the supply of the medication. This would be acceptable provided the normal follow up is not disturbed by the related practitioner's prescribing.
(c) Where the prescription is for a minor ailment. Examples would include the prescription of drops for otitis externa, analgesics for dental pain, steroid creams for dermatological conditions.

36 These limited circumstances would not, according to Dr Bunker, have applied with regard to the prescribing of narcotics to Patient B. It necessarily follows from Dr Bunker's observations that the respondent's administering of narcotics to his wife in emergency situations and from prescriptions issued by other treating practitioners was inappropriate, and, after the PSB advice to the respondent, constituted conduct that fell significantly below the standard expected of a practitioner of equivalent experience and level of training.

37 None of these matters, however, provide support for the complaint which alleges that the respondent prescribed and administered medication to Patient B "without adequate explanation, without adequate clinical indication and [without] exercising responsible medical judgment". The only evidence in support of this allegation is found in Patient B's account which we have earlier set out. The HCCC, in correspondence, notified the respondent of a number of allegations made against him by Patient B. One of those allegations was set out in the correspondence as follows:

7. You administered medication to [Patient B] in the form of tablets and injections without her knowledge or understanding what they were.

38 The respondent, in reply to the HCCC, denied the allegation, stating that it is, "most definitely not true". He also referred the HCCC to his earlier letter in which he said he had answered the allegation. In that letter the respondent had written:

I deny that I administered medication and injections without [Patient B's] consent. Her statement that she does not know the nature of the medication provided is patently untrue. Multiple hospital visits and specialist attendances over a number of years ensured that [Patient B] was indeed more than familiar with all aspects of her treatment, including the names of medications prescribed and administered.

39 Neither Patient B nor the respondent were required for cross-examination. The Tribunal has before it two inconsistent versions of events. In addition, neither version was the subject of challenge during the hearing. The evidence of Dr Bunker merely establishes that the respondent's prescribing of narcotics to Patient B was "inappropriate" and, after receipt of the PSB letter, below the standard expected of a practitioner. Given the state of the evidence, we are unable to find to the requisite degree of satisfaction that Particular 3(b) has been proven. Particular 3(b) of the complaint therefore is not made out.

Particular 4: Patient B

40 Particular 4 alleges, in summary, that the respondent, between 22 November 1995 and July 2005, administered pethidine and morphine to Patient B from his Doctor's Bag without making and retaining proper records. The respondent disputes the whole of the allegations in Particular 4.

41 Clause 81 of the Poisons Regulation 1994 (1994 Regulation) and its successor provision, Clause 84 of the 2002 Regulation both provide, relevantly, that a medical practitioner who prescribes a drug of addiction must make a record of the following particulars:

(a) the name, strength and quantity of the drug prescribed and the date on which it was prescribed,
(b) if the drug is intended for the treatment of a person, the name and address of the person to be treated,
(c) ..
(d) the maximum number of times the drug may be supplied on the prescription,
(e) the intervals at which the substance may be supplied on the prescription,
(f) the directions for use, as shown on the prescription.

42 Both regulations also require the record to be kept, "at the surgery, hospital or office of the person prescribing the substance": cl 84(2) 1994 Regulation; cl 81(2) 2002 Regulation.

43 Clause 113 of the 1994 Regulation and the successor provision clause 111 of the 2002 Regulation both provide that a person who has possession of drugs of addiction "at any place" must keep at that place a separate register, called a "drug register" which must be in the form of a book whose pages:

(a) are consecutively numbered; and,
(b) are so bound that they cannot be removed or replaced without trace; and,
(c) contain provision for the inclusion of the particulars required to be entered in it.

44 In addition, clause 114 of the 1994 Regulation and its successor provision clause 112 of the 2002 Regulation provide that entries in the drug register with regard to the administration and use at any place of a drug of addiction, must record, relevantly, the following details:

(a) the quantity of the drug, administered or used;
(b) the name and address of the person to, from or by whom the drug was administered or used;
(c) ...
(d) in the case of a drug that is administered on prescription:
(i) the prescription reference number; and
(ii) the name of the medical practitioner, by whom the prescription was issued;
(e) in the case of a drug that has been administered to a patient, the name of the medical practitioner by whom, or under whose direct personal supervision, the drug was administered;
(f) ...
(g) in the case of a drug that has been administered by a person authorised to do so by an authority under Part 7, details of the circumstances requiring administration of the drug;
(h) ...
(i) the quantity of drugs of addiction of that kind held at that place after the transaction takes place.

45 Both clauses also require that each entry in a drug register be dated and signed by the person by whom it was made.

46 These stringent requirements attest to the importance placed by the legislature in maintaining clear and detailed records of the use and administration of drugs of addiction.

47 There was evidence referred to earlier in this decision, that for some two months prior to 17 February 1999 (the date of the PSB letter) the respondent had been prescribing S8 drugs of addiction to Patient B. The respondent's letter of reply on 4 March 1999 to the PSB letter contains a concession on the part of the respondent that he had been prescribing drugs of addiction to Patient B, although the letter makes no specific reference to pethidine. The letter, however, signalled an intention to cease prescribing drugs of addiction to Patient B. Nevertheless, the respondent, by his own admission, continued to prescribe "narcotics" to Patient B, but only in emergencies. He said on those occasions he obtained the drugs from his Doctor's Bag. He also said he administered narcotics to Patient B for pain relief, either from his Doctor's Bag supplies or from prescriptions issued by her other treating doctors.

48 The effect of this evidence in relation to its relevance to Particular 4 is that the respondent administered pethidine to Patient B and other unspecified "narcotics", during the period from about late-1998 until he separated from Patient B in July 2005. Following the PSB letter in February 1999, the respondent only administered narcotics for pain relief in emergency situations. Having done so, it was incumbent upon the respondent to make and retain records in accordance with the clauses extracted above from the 1996 and 2002 Regulations. The issue, however, is whether the evidence establishes that the respondent failed to make and retain the records, which is the substance of the allegation in Particular 4.

49 The HCCC relies simply on the absence of any evidence of the relevant records of the respondent's prescribing practices with regard to Patient B and the absence of a drug register. According to the HCCC, the absence of records entitles the Tribunal to draw the inference that the respondent did not keep or make entries in a drug register.

50 The respondent, however, has offered an explanation, which is unchallenged, for the absence of the relevant records. In his statement, the respondent said that on 29 July 2006 he attended his practice and discovered that items had been stolen the night before. He subsequently noticed, after a visit by PSB representatives on 12 December 2006, that his Doctor's Bag book and Drug Register were missing. He informed the PSB representatives that these items had been stolen.

51 There is some evidence that the respondent maintained "dispensing records" which indicated that he had been prescribing pethidine to Patient B for some two months prior to 17 February 1999. This evidence is found in the PSB letter of the same date. It suggests that the respondent did, at some stage within the period of the allegation, keep records, although it is not known whether those records complied, either fully or partly, with the requirements of the regulations.

52 This evidence, however, in combination with the respondent's statement, casts sufficient doubt on the allegation that the respondent failed to make and retain proper records. The HCCC has therefore failed to discharge its onus and the Tribunal is not able to be satisfied to the requisite standard that the allegation has been proven. Accordingly, Particular 4 has not been made out.

Particular 7: Patient F

53 The respondent admitted Particular 7. The evidence which establishes the allegation has been helpfully set out in written submissions relied upon by the HCCC.

54 In summary, the respondent treated Patient F during the relevant period and prescribed S4 restricted substances in circumstances set out in the complaint which include prescribing the restricted substances in quantities in excess of therapeutic guidelines.

55 The respondent informed the PSB investigator that he knew Patient F was a drug dependent person and a former heroin addict. He sought to explain that he was treating Patient F with benzodiazepines for cannabis withdrawal in an attempt to manage Patient F's withdrawal from the cannabis.

56 In a report commissioned by the HCCC, Dr Nigel Menogue, a general practitioner, provided the following observations with regard to the respondent's conduct, the subject of Particular 7:

· temazepam was prescribed by the respondent in very high doses over a period of seven months.

· the high quantities of temazepam (a sedative) prescribed should have alerted the respondent to a problem with the consumption of sedatives.

· the respondent prescribed the sedative when he knew that Patient F was dependent upon another drug, namely cannabis.

57 In Dr Menogue's opinion, the respondent's conduct in relation to these matters, "falls below the standard expected of a practitioner of an equivalent level of training or experience and the departure from the standard was significantly below that standard".

Particular 8: Patient G

58 Particular 8(a) was not admitted by the respondent. The balance of Particular 8 was admitted.

59 The allegation with respect to Particular 8(a) is that the respondent prescribed S4 restricted substances (Codeine Phosphate and Tramal) to Patient G in quantities in excess of therapeutic guidelines under clause 33 of the Regulation.

60 Clause 33 provides:

Quantity and purpose of prescriptions to be appropriate
A medical practitioner, nurse practitioner, dentist or veterinary surgeon must not issue a prescription for a restricted substance in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances.
Maximum penalty: 15 penalty units.

61 According to the records produced by the HCCC the respondent prescribed Tramal (an analgesic) approximately every two to three weeks and a codeine-containing prescription issued on an irregular basis at 240 tablets a time.

62 Dr Menogue noted that in some cases codeine-containing prescriptions were issued at two-week intervals. He calculated that 720 x 30mg codeine tablets had been prescribed in a five-week period between 27 September and 19 October 2004. According to Dr Menogue, this was a "huge quantity of codeine".

63 Dr Menogue also examined records which indicated that Patient G was taking 8 to 10 Panadeine Forte tablets per day which was equivalent to a consumption of 240mg of codeine per day. Dr Menogue described this dosage as "quite significant". He added that there was no indication in the respondent's notes justifying the use of such medication.

64 Dr Menogue's opinion with regard to the quantity of codeine prescribed by the respondent to Patient G was expressed as follows:

In my opinion, therefore, prescribing of this amount of codeine for an 18-month period, is grossly excessive and the prescribing conduct falls below the standard expected of a practitioner of an equivalent level of training or experience. The departure from the standard is significantly below that standard and the departure from the standard invites my strong criticism.

65 The records also indicated that Patient G was prescribed Tramal concurrently with codeine-containing agents. According to Dr Menogue, the concurrent use of both drugs operated to reduce the efficiency of "Tramadol" and was not to be encouraged. Dr Menogue remarked that there was little evidence to justify the consumption of up to ten Panadeine Forte tablets per day, and therefore, there was little to defend the respondent's prescribing of codeine, by reference to the Medical Practice Regulation 2003 (2003 Regulation). We would add that Dr Menogue's finding that the amount of codeine prescribed by the respondent was "grossly excessive" is sufficient, in the absence of any specific evidence linking the amounts prescribed to the therapeutic guidelines, to sustain a conclusion that the quantity prescribed was in excess of those guidelines. A quantity described as "grossly excessive", it may reasonably be inferred, represents a quantity in excess of the therapeutic guidelines.

66 Clause 5 of the 2003 Regulation was also relied upon by the HCCC with regard to this particular allegation. That clause requires a medical practitioner to make or keep a record of each patient. Dr Menogue found that the respondent kept satisfactory records with regard to Patient G. His complaint was, however, that those records failed to demonstrate a justifiable cause for the ongoing prescription of a narcotic over an 18-month period.

67 Taking all these matters into account, the Tribunal finds Particular 8(a) proven.

68 With regard to the remaining sub-particulars of Particular 8, it is unnecessary, given the respondent's admissions to those sub-particulars to refer to the available evidence in any detail. The respondent, in his statement, conceded that the prescription of Tramal and "Codalgin Forte" (a codeine-containing agent) in combination, and for the duration they were prescribed, fell outside therapeutic guidelines. The evidence of Dr Menogue with regard to the respondent's record-keeping of prescriptions issued to Patient G also establishes, together with the respondent's admission, sub-particular 8(d).

Particular 9 - Patient H

69 Particular 9 alleges that the respondent prescribed drugs of addiction (Endone and Oxycontin) to Patient H during the period from 18 February 2004 to 24 November 2005. Sub-particular (a) was disputed by the respondent. The remaining sub-particulars were admitted.

70 Sub-particular 9(a) alleges that the respondent prescribed Endone and Oxycontin to Patient H in quantities in excess of the therapeutic guidelines under clause 33 of the 2002 Regulation. Clause 33 has been earlier set out.

71 Records included within the HCCC material set out the dates and quantities of Endone and Oxycontin prescribed by the respondent to Patient H over the relevant period.

72 According to the respondent, he prescribed Oxycontin to Patient H from 18 February 2004 for severe pain. He said he was "confident" that he prescribed the drug in a manner consistent with therapeutic guidelines. Following neck pain requiring surgery, the respondent said that from 20 May 2005 he prescribed 40mg bd of Oxycontin to Patient H. From June 2005 (after surgery was performed) until around 25 November 2005, the respondent prescribed 30mg bd of Oxycontin and Endone 5mg approximately every one to two weeks for what he described as Patient H's persistent and severe neck pain.

73 According to Dr Menogue, there are no indications listed in Patient H's file indicating why she needed the high doses of Oxycontin prescribed to her by the respondent. Dr Menogue noted that Patient H had sustained a fall on Mother's Day in 2005. Surgery was not performed to rectify the neck injury until June 2005. Borrowing the respondent's description of the surgery as "uncomplicated", Dr Menogue said, "one would have expected the need for strong analgesia to diminish fairly rapidly and should have been withdrawn by August 2006 (sic)".

74 Significantly, in relation to the consumption of Oxycontin and Endone prior to the neck surgery, Dr Menogue opined:

However, considering the consumption of Oxycontin and Endone prior to the neck surgery of June 2006 (sic), it is clear that [Patient H] was already quite addicted to Oxycontin and Endone at the time during 2006 (sic) surgery. As a consequence, the prescription of Oxycontin and Endone appears to be grossly excessive and that Dr Sims' prescribing notes do not justify why this amount of narcotic analgesia was required.

75 Dr Menogue's conclusion with regard to the respondent's conduct was that:

... his conduct falls below the standard expected of a practitioner of an equivalent level of training or experience. The departure from the standard was significantly below that standard and the departure from the standard invites my strong criticism.

76 The Tribunal prefers Dr Menogue's objective appraisal of the quantity of the drugs prescribed by the respondent to the respondent's more muted expression of "confidence" that he prescribed Oxycontin in a manner consistent with the therapeutic guidelines. Although Dr Menogue did not expressly link the quantities prescribed to the therapeutic guidelines, his conclusions which include his description of the quantities prescribed as "grossly excessive" support a finding that the quantities prescribed were in excess of the guidelines. It may be reasonably inferred that a quantity described as "grossly excessive" is representative of a quantity prescribed in excess of the guidelines. Particular 9(a), we therefore find, has been made out.

77 The evidence of Dr Menogue to which we have referred, together with the respondent's admissions to the remaining sub-particulars also facilitates a finding that those remaining sub-particulars have been established. With regard to sub-particular 9(d), Dr Menogue remarked that, although the respondent's records for Patient H were contemporaneous, there was nevertheless a paucity of information identifying the extent of the neck pain suffered by her prior to the surgery which would justify the long period of use of Oxycontin. Based on this matter, Dr Menogue concluded that the respondent's medical records for Patient H were inadequate and not in accordance with the 2003 Regulation.

Particular 10 - Patient I

78 Particular 10 alleges that the respondent prescribed benzodiazepines (Ativan, Xanax and Serepax) to Patient I between 31 March 2004 and 31 December 2005. Sub-particulars (a), (b) and (c) were not admitted. The remaining sub-particulars (d) and (e) were admitted.

79 We propose to deal with each of the non-admitted sub-particulars in the order in which they appear in the complaint.

(a) without adequate clinical indication and without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions

80 According to the respondent, Patient I first attended his practice in or around 31 October 2002 suffering from long-term depression. At that time, she was prescribed Aropax 20. In May 2003, after Patient I requested a change of medication (because the Aropax was not working) the respondent prescribed Lovan which was changed on 2 June 2003, following symptoms of insomnia, to Cipramil and Stilnox. An entry in the respondent's records of 21 July 2003, recorded:

[Patient I] has hit a hump with her depression and Cipramil 40mg is no longer really helping her. This has been increased to 60mg mane and added in Stilnox 5-10mg at night.

81 Records also indicate that from 13 August 2004 Patient I was prescribed, "occasional Ativan for agitation". At the same time, the respondent commenced prescribing Xanax 0.25mg tds prn in substitution for the Ativan. On 29 August 2004, Patient I was hospitalised for one week with severe depression.

82 According to the respondent, on or around 1 October 2004 he prescribed Serepax 30mg x 25 tablets to Patient I. On 13 October 2004 and again in November 2004, Patient I was hospitalised, on the second occasion in the psychiatric unit, Wollongong Hospital. In or around December 2004, Patient I attended the respondent's surgery and he re-commenced prescribing Ativan 25mg nocte. The prescription was continued on a monthly basis. On or around 21 December 2005, the respondent prescribed Serepax 30mg for increasing agitation in association with Patient I's bipolar disorder. The Serepax was prescribed in conjunction with Seroquel, an antipsychotic agent.

83 Dr Menogue remarked with regard to this history:

These minor tranquilisers were prescribed on a continual basis through to December 2005. There were approximately 800 tablets prescribed during that period. This corresponds to approximately 12 tablets per week, or two per day. This is a dramatic increase from the stated
Uses Ativan on occasion.
There are contemporaneous records of depression, including a variety of antidepressant medication.
It is well recognised that the use of minor tranquilisers can actually enhance the symptoms of depression. I note an entry on 29 November 2004, where she presented for review:
After having recently been discharged from the psych unit at Shellharbour Hospital after an admission for severe depression. She had ECT and was discharged on Efexor and Zyprexa.
In spite of this history, when seen on 9 December 2004, she was yet again prescribed Ativan "because of her success with this before".
The PSB database notes twelves scripts for either Ativan or Serepax in 2005. This (sic) during 2005, the symptoms of depression associated with agitation continued. There was no reference to psychiatric assessment during 2005 with the exception of an entry on 21 December 2005 which states:
[Patient I] presented for review regarding her bipolar disorder. The increase in Risperdal caused even worse nausea, with vomiting, and when she presented to her psychiatrist, Dr Daya, recently, he suspended the Risperdal, but refused to give her anything in its place.
Dr Sims noted that she was agitated and gave her a prescription for Serepax. In the entry of 28 December 2005, it was indicated that she was moving to Tweed Heads and therefore would be shifting to another general practitioner.
It is interesting that the treating psychiatrist did not offer to prescribe Benzodiazepines in his assessment in the latter part of 2005.
There is little evidence to support the use of such high doses of Benzodiazepines in somebody whose depression was unstable and refractory to so many different types of antipsychotic agents. The reluctance to refer to additional assessment is a worrying trend in Dr Sims' management of patients with psychiatric disorders and the use of multiple drugs to contain symptoms, has been mostly unsuccessful.

84 This evidence suggests that the respondent used minor tranquillisers in apparently high doses to treat severe depression despite it being "well recognised" that the use of such minor tranquillisers could enhance the symptoms of depression. This evidence, in the absence of evidence to the contrary on the issue, supports an inference that the drugs were prescribed by the respondent in the circumstances, without adequate clinical indication and without exercising responsible medical judgment as to the appropriateness of issuing the prescriptions. Particular 10(a) therefore has been made out.

(b) in quantities in excess of therapeutic guidelines and for a purpose outside therapeutic guidelines contrary to clause 33 of the 2002 Regulation

85 The HCCC relied on the evidence of Dr Menogue to make out this particular. That evidence, in our view, falls short of proving the allegation that the respondent prescribed benzodiazepines, "in quantities in excess of" the guidelines. Dr Menogue did not directly address the issue but merely referred to the absence of information in the documentation, with which he had been provided, to support the use of "such high doses" of benzodiazepines given Patient I's depression which he said was unstable and resistant to many types of antipsychotic agents.

86 The respondent on the other hand directly addressed this issue. With regard to the quantities of Ativan, Xanax and Serepax he prescribed to Patient I as well as the frequency of the prescribing, the respondent said he was aware of the therapeutic guidelines and he was confident that he was prescribing to Patient I within those guidelines. Moreover, the respondent said that on one occasion, on or around 1 December 2004, he re-commenced Patient I on Ativan 2.5mg nocte after she presented at his surgery complaining of insomnia. The respondent conceded that the amount prescribed on this occasion was above the recommended therapeutic guidelines but considered that the amount was justifiable given Patient I's severe anxiety.

87 The Tribunal was not provided with the guidelines, nor did the HCCC attempt to provide a comparative analysis of the amounts prescribed by the respondent or the frequency of the prescriptions by reference to the guidelines. Dr Menogue was the only identified source of information relied upon by the HCCC to prove this allegation. Dr Menogue, however, did not directly address the issue, no doubt because he was not asked. A description of the quantities prescribed as "high doses" we do not find sufficiently persuasive in the absence of the guidelines to warrant a conclusion that the quantities were prescribed in excess of the guidelines. The respondent, on the other hand, did address the issue, although in a general way. The state of this evidence compels the conclusion that sub-particular 10(b) has not been proven.

(c) in combination outside therapeutic guidelines

88 Sub-particular 10(c) alleges that the respondent prescribed Ativan, Xanax and Serepax in combination to Patient I "outside therapeutic guidelines". In the absence of any material before the Tribunal as to what might constitute quantities of the three drugs in combination that fall outside the guidelines the Tribunal is unable to decide the issue simply on the basis of the quantities prescribed. As to the frequency of prescribing the drugs in combination the respondent appears to concede this matter in his statement where he says:

with hindsight I realise I prescribed benzodiazepines to [Patient I] for a longer period than suggested by therapeutic guidelines

89 In an earlier statement, contained in a letter to the HCCC dated 29 April 2008 the respondent said:

I did prescribe [Patient I] multiple benzodiazepines on a long-term basis. These were NOT prescribed concurrently. I do not necessarily agree that this was inappropriate or that the quantities were excessive.

90 In order to make out sub-particular 10(c), the HCCC appears to rely in written submissions, on the respondent's concession that he prescribed benzodiazepines to Patient I "for a longer period than suggested by therapeutic guidelines". This concession, together with the respondent's statement that he prescribed multiple benzodiazepines "on a long term basis", although not concurrently, is limited to the period in which the drugs were prescribed. It does not extend to a concession that the drugs were described "in combination" outside the guidelines which is what the allegation is directed to. Particular 10(c) is therefore not made out.

Sub-particulars 10(d) and (e)

91 The remaining sub-particulars of particular 10 were admitted by the respondent. The evidence with regard to sub-particular 10(d) has been considered in some detail in connection with the allegation, the subject of sub-particular 10(c). It therefore needs no repetition. The respondent admitted sub-particular (e) in his statement dated 28 February 2010.

Particular 11

92 The respondent also admitted, in writing, all of the allegations in particular 11. Those allegations concern a group of patients nominated in the complaint as "Patients J-Q". It is alleged, in brief, that the respondent, during the relevant period, prescribed drugs of addiction to Patients J-Q without an appropriate authority. The respondent, in his statement of 28 February 2010, conceded that he prescribed the drugs without an appropriate authority, however, in all cases he sought to explain his conduct as either "an oversight" or in the case of those patients who were terminally ill that he did not understand that he was required to obtain the appropriate authorisation.

Particular 12

93 The respondent admitted, in writing, that he failed to give written notice to the Department that his drug register was lost or destroyed. This matter forms the basis of Particular 12. In a letter to the HCCC dated 29 April 2008, the respondent wrote by way of explanation:

I did fail to report to the NSW Health Department that my Drug Register was stolen. On Saturday, July 29, 2006, it became apparent to me that several surgery items and personal belongings were missing and that my surgery had been unlawfully entered the previous night. Further events over the following week provided strong circumstantial evidence that this had been perpetrated by my then estranged and since divorced wife so the matter was reported to police on Wednesday, August 9, 2006. At that stage, I still did not know the full extent of stolen property and specifically, I was not aware that my Drug Register and Doctors' Bag Book were missing until I was asked to produce them by officers from the PSB at my meeting with them on 12 December 2006.

Conclusions with regard to the respondent's conduct

94 Both parties have urged upon the Tribunal to make a protective order which would have the effect of not permitting the respondent to apply for re-registration for a period of 12 months. Before making such an order, however, the Tribunal, as we have earlier sought to emphasise, must first be satisfied when it finds upon a complaint against a person that the person is guilty of professional misconduct: s 64(1)(b) and s 64(2) of the Act.

95 Section 37 of the Act sets out the following definition 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

96 Section 36(1) of the Act defines, relevantly, "unsatisfactory professional conduct" as:

(a) 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; 3
(b) Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulation, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention;

97 The evidence provides numerous instances of conduct on the part of the respondent sufficient to fall within s 36(1)(a) and s 36(1)(b) of the Act.

98 The subject matter of the complaint may be divided broadly into three categories of conduct. The first category concerns the respondent's conduct with regard to his treatment of Patients A and B and Patient B's children, Patients C, D and E. The second category concerns the respondent's conduct in prescribing drugs of addiction or restricted substances within the meaning of s 4 of the PTG Act to Patients F to Q inclusive. The third category concerns the conduct the subject of Particular 12 of the complaint which alleges that the respondent failed to give written notice to the Department as required under the 2002 Regulation that his drug register was lost or destroyed.

99 Dr Bunker's opinions were sought by the HCCC with regard to the first category. His unchallenged conclusions with regard to the respondent's conduct in commencing sexual relations with Patient A and Patient B was that it exhibited a "significant breach of trust". Dr Bunker was particularly critical of the respondent's conduct with regard to Patient B:

A (sic) previously stated, I believe Dr Sim's (sic) conduct in developing a personal relationship and then marrying a patient who had multiple significant medical and emotional problems, whom he had cared for since the patient was 17, was a significant departure below the standards reasonably expected of a practitioner at the time, and attracts my strong criticism. I am similarly critical of Dr Sims in continuing to be the primary care provider after marrying his patient.

100 Dr Bunker was also strongly critical of the respondent's conduct in continuing to prescribe for Patient B after the warning from the PSB. He referred to a standard, which he described as "obvious", applicable to all members of the profession and which requires that a practitioner reflect on advice given by a body which has responsibility for some aspect of governance of the profession. According to Dr Bunker the respondent's conduct in ignoring the advice of the PSB also constituted conduct of a standard significantly below that expected of a practitioner of an equivalent level of training and experience.

101 The respondent's treatment of Patient A, Patient B, and his stepsons, Patients C, D and E, was also contrary to the Board's August 2001 Policy, extracts from which we have earlier set out.

102 The second category of conduct involved a number of instances of misconduct in the prescribing of S8 drugs of addiction or restricted substances to Patients F to Q inclusive. These instances of misconduct included prescribing S8 drugs of addiction or restricted substances:

(i) in quantities in excess of therapeutic guidelines to patients F, G and H;

(ii) without adequate clinical indication and without exercising responsible medical judgment as to whether it was appropriate to issue the prescriptions to Patients F and I;

(iii) in a combination outside therapeutic guidelines to Patients F, G and H;

(iv) for a period outside therapeutic guidelines to Patients F, G, H and I;

(v) when the respondent knew or ought reasonably to have known that Patient F was drug dependent;

(vi) in circumstances where the respondent failed to make and retain proper records of the treatment of Patients G, H and I, contrary to the 2002 and 2003 Regulations;

(vii) to Patients J to Q without the appropriate authorities under the PTG Act 1966.

103 Dr Menogue was asked to assess the respondent's conduct with regard to his prescribing practices while treating Patients F to I. He conducted his assessment by reference to material relevant to each individual patient. He concluded in each case that the respondent's conduct in prescribing S4 drugs of addiction to the patients constituted conduct which:

falls below the standard expected of a practitioner of an equivalent level of training or experience and that his departure from the standard was significantly below the standard.

104 The respondent's conduct with regard to Patients G, H and I also constitutes conduct falling within s 36(1)(b) of the Act, by reason of the respondent's contravention of the Medical Practice Regulation 2003 (a regulation made under the Act).

105 In addition, we view the respondent's conduct by reference to Particulars 11 and 12 as constituting improper conduct relating to the practice of medicine under s 36(1)(m) of the Act. It is impossible to overstate the level of responsibility which must be discharged by all medical practitioners who prescribe drugs of addiction to their patients. The health and safety of all patients entrusted to the care and responsibility of the medical profession is of paramount importance. The prescribing of drugs of addiction must be accompanied by the scrupulous maintenance of records which accurately record the quantity and type of drugs prescribed, the combination of drugs, where relevant, and the period over which the drugs are prescribed. Failure to attend to any of these matters exposes patients to extreme risk to their health and safety, including the obvious risk of a patient becoming drug dependent.

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

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

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

108 These several instances of conduct each constitute instances of unsatisfactory professional conduct under s 36(1)(a), (b) and (m) of the Act. Cumulatively, they fall within the definition of professional misconduct under s 37 of the Act representing conduct of a sufficiently serious nature to justify the respondent's name being removed from the Register: see Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [160] [161] per Sackville AJA.

109 Accordingly, the Tribunal proposes to accede to the submission of the respective parties and order that the respondent not be re-registered for a period of 12 months. Given the time that has elapsed from the date when the respondent removed his name from the Register (1 June 2010), it is the Tribunal's view that a period of nine months to take affect from the date of the decision, represents a sufficient period of time during which the respondent may not apply for re-registration.

Non-publication order

110 The HCCC applied for a suppression order under s 161 and clause 6 of Schedule 2 of the Act. The order sought was expressed as, "the usual order in relation to non-publication of the names of any patients or their relatives that are proposed in the Tribunal". The respondent did not object to a suppression order made in the terms proposed by the HCCC. The Tribunal sees no good reason why the names of the patients, identified only by letters of the alphabet in the complaint, should be published. It is not necessary to extend the suppression order to any relatives of the patients since none have been identified by name or otherwise in the material tendered by the parties during the proceedings.

Orders

111 The Tribunal makes the following orders:

(1) The respondent who is currently de-registered may not apply for re-registration for a period of nine months from the date of this Decision.

(2) The respondent is to pay the HCCC's costs of these proceedings.

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