MEDICAL BOARD OF AUSTRALIA and NADKARNI - [2021] WASAT 123

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION:   MEDICAL BOARD OF AUSTRALIA and NADKARNI [2021] WASAT 123
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
MR R POVEY, MEMBER
DR K JEFFERIES, SENIOR SESSIONAL MEMBER

HEARD:   28 JULY 2021
DELIVERED          :   21 SEPTEMBER 2021
FILE NO/S:   VR 132 of 2019
BETWEEN:   MEDICAL BOARD OF AUSTRALIA
Applicant
AND
SANJAY NADKARNI
Respondent

Catchwords:

National Law Professional misconduct Prescribing substances including human growth hormone, testosterone and thyroid extract No therapeutic basis for prescribing Inadequate records Tests ordered before consultation with patient Appropriate penalty to be imposed

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010, s 5, s 169, s 196, s 196(2)(a), s 196(2)(b)(iii)

Result:

The practitioner reprimanded
The practitioner's registration suspended for 20 months
The practitioner's registration subject to conditions, to be reviewed
The practitioner to pay costs

Category: B

Representation:

Counsel:

Applicant	:	Ms F A Stanton
Respondent	:	Mr S Vandongen SC and Mr M L Williams

Solicitors:

Applicant	:	Russell Kennedy Pty Ltd
Respondent	:	Minter Ellison

Case(s) referred to in decision(s):

Chen v Health Care Complaints Commission [2017] NSWCA 186
Health Care Complaints Commission v Epstein (No 2) [2015] NSWCATOD 36
Health Care Complaints Commission v Nguyen-Phoc (No 2) NSWCATOD 94
Medical Board of Australia v Hadges [2018] SAHPT 6
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Medical Board of Australia v Abi Haila [2018] VCAT 196
Medical Board of Australia and Durston [2012] VR 188
Medical Board of Australia v Grant [2121] QCAT 285
Medical Board of Australia v Ismail [2013] VR 212
Medical Board of Australia and Singh [2017] WASAT 33(S)
Singh v Medical Board of Australia [2019] WASCA 51

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The parties agreed to orders[1] in which it was agreed, that in summary, over a period of time from about 2010[2] to 2018 Dr Nadkarini, a specialist radiologist, engaged in professional misconduct by:
(a)prescribing certain drugs or substances to patients in circumstances where there was no therapeutic indication or clinical justification basis for doing so, thereby unnecessarily exposing his patients to the risk of adverse effects of those drugs or substances;
(b)ordering blood tests without any proper or adequate consideration as to the necessity of those blood tests, thereby exposing the patients to potential unnecessary testing;
(c)failing to record in his notes the substances he prescribed to particular relevant patients; and
(d)failing to take an appropriate medical history and conduct an appropriate examination when consulting with particular patients.
[1] Orders made 28 June 2021.
[2] Dr Nadkarni agreed to consent orders that referred to commencing the prescribing of the substances from about 2010. In evidence he said he had since determined that he commenced doing so in 2011. Nothing turns on the difference.
By far the most serious of those failings is the prescribing of substances which were not therapeutically justified. Those substances included human growth hormones and testosterone. The prescription of the substances concerned is traditionally the province of endocrinologists.

Dr Nadkarni was not acting as a radiologist when he committed this professional misconduct. Rather, he did so in the course of what he regarded to be a practice in 'integrative medicine' but which might also be referred to as 'wellness' or 'anti-aging'. He accepts his conduct put his patients' health at risk.
Dr Nadkarni has now ceased to prescribe the particular substances concerned and is presently winding up his integrative medicine practice. He has also undertaken courses to ensure that he is better informed of the way in which proper notes should be taken, better placed to ensure he is aware of the way in which a clinical history should be taken and to ensure that he is better trained in prescribing practices.
There is no suggestion Dr Nadkarni's skills and experience in radiology are less than satisfactory. Indeed, his references speak to his competence as a radiologist and the contribution he makes to that area of medicine.

Issue

The issue which the Tribunal has been required to determine in these proceedings is the appropriate penalty to be imposed on Dr Nadkarni for his professional misconduct in all of the circumstances.

Outcome

For the reasons which are set out below we have concluded that the appropriate penalty is:
a.a reprimand;
b.a period of suspension of his registration for a period of 20 months;
c.the imposition of a condition on his registration prohibiting Dr Nadkarni from prescribing particular substances;
d.the imposition of a condition on his registration requiring Dr Nadkarni to satisfy the Board that his clinical skills are of a sufficient level to allow him to safely practice as an interventional radiologist before he does so;
e.the imposition of audit conditions on Dr Nadkarni's registration; and
e.the imposition of a review period of 6 months.
We have set out the actual terms of the penalty at the conclusion of these reasons.

Applicable law under the National Law

Powers of the Tribunal when practitioner found to have committed professional misconduct

Section 196 of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) provides for the powers of the Tribunal when it finds that a practitioner has behaved in a manner that constitutes professional misconduct. The section includes the following provisions:
…
(2)If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following –
(a)caution or reprimand the practitioner;
(b)impose a condition on the practitioner's registration, including, for example –
(i)    a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii)     a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii)    a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv)    a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v)     a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi)    a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c)require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;
(d)suspend the practitioner's registration for a specified period;
(e)cancel the practitioner's registration.
(3)If the responsible tribunal decided to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.
(4)If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to –
(a)disqualify the person from applying for registration as a registered health practitioner for a specified period; or
(b)prohibit the person, either permanently or for a stated period from –
(i)    providing any health service or a specified health service; or
(ii)     using any title or a specified title.

The meaning of 'professional misconduct' as used in the National Law

The term 'professional misconduct' is defined in s 5 of the National Law as conduct which includes:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

The term 'unprofessional conduct' as used in paragraphs (a) and (b) of the definition of professional misconduct.

The definition of unprofessional conduct is defined in s 5 of the National Law as follows:
Professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.

Purpose of disciplinary penalty and principles in relation to disciplinary sanctions

As the Court of Appeal stated in Singh v Medical Board of Australia[3] the purpose of disciplinary proceedings is to protect the public and not to punish the practitioner, in the sense in which punishment is imposed under the criminal law, although disciplinary orders may nevertheless have elements in common with criminal sanctions.
[3] Singh v Medical Board of Australia [2019] WASCA 51 [30] [31] (Quinlan CJ and Pritchard JA), [85] (Allanson agreeing).
However, the protection of the public has various dimensions. They include:
1.the need to protect the public by preventing the practitioner from practising;
2. the need to bring home to the practitioner the seriousness of their conduct;
3.the need to deter the practitioner from future breaches;
4.reassuring the public that a certain type of behaviour is not acceptable professional conduct; and
5.signalling to other members of the profession that a certain type of behaviour is not acceptable professional conduct.[4]
[4] Singh v Medical Board of Australia [2019] WASCA 51 [31] [32] (Quinlan CJ and Pritchard JA).
As the purpose of disciplinary proceedings is to ensure the protection of the public, the impact which a penalty will have on a practitioner who has been found to have committed professional misconduct is necessarily a secondary consideration. As such, personal circumstances of the practitioner, although relevant, carry less weight and may not override the Tribunal's obligation to make orders which secure the protections of the public.[5]
[5] Singh v Medical Board of Australia [2019] WASCA 51 [33] (Quinlan CJ and Pritchard JA).
The findings of misconduct which are made in any particular case will be of particular significance in determining whether the practitioner is unfit to practice their profession. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and engaging the power of suspension or cancellation of a practitioner's registration. As Basten JA stated in Chen v Health Care Complaints Commission:[6]
Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct.
[6] Chen v Health Care Complaints Commission [2017] NSWCA 186 [20] (Basten JA, Leeming & Payne JJA agreeing).
While, unlike the position under s 196 of the National Law, there is no power to strike off a practitioner reposed in the Tribunal under the Legal Profession Act (2008) (WA), the Court of Appeal has endorsed as applicable by way of analogy, in a qualified way, the following statements made by Murphy and Beech JJA in the Court of Appeal in Khosa v Legal Professional Complaints Committee:[7]
In general terms, where the conclusion is reached that a practitioner is presently unfit to practise, a choice may be made between suspension and striking off. If an order for suspension is made in that event, it must be made on the basis that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise because, at the end of the relevant period, the practitioner's name will still be on the roll of practitioners and may resume practise. Suspension is a 'serious form of discipline which is usually imposed to discipline the legal practitioner, who has committed an act of unprofessional conduct but who, in the opinion of the court, at the end of the period of suspension, will be a fit and proper person to practise the law'. In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations 'reflecting, to a significant degree, upon the practitioner's fitness to practise'.
Where, however, the present unfitness to practise reveals that the practitioner lacks the character of trustworthiness necessary to discharge the responsibilities of legal practice, or that the practitioner is permanently or indefinitely unfit to practise, striking off rather than suspension will (at least ordinarily) be the appropriate response. (footnotes omitted)
[7] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [191] [192] (Murphy and Beech JJA).
Permanent unfitness to practise will be a sufficient basis for cancelling a practitioner's registration. But that is not the only basis upon which registration may be cancelled. That is, permanent unfitness to practise is not a precondition to the exercise of the power to cancel a practitioner's registration.[8]
[8] Chen v Healthcare Complaints Commission [2017] NSWCA 186 [17] and [20] (Basten JA, Leeming & Payne JJA agreeing) cited with approval in Singh v Medical Board of Australia [2019] WASCA 51 [37] [38] (Quinlan CJ and Pritchard JA).
Where, applying the National Law, the Tribunal cancels a practitioner's registration it must also set a period of time within which the practitioner may not seek to be re-registered. In this way the Tribunal signals the minimum period within which it considers that the practitioner may not practise their profession and also leaves open the possibility that an application for re-registration after that time will be considered.
The weight which is given to the considerations which are relevant to its exercise of discretion under s 196 is a matter for the Tribunal.
In Medical Board of Australia and Singh[9] the Tribunal identified 12 factors which were relevant to penalty in disciplinary cases of this kind. Although not expressly endorsed by the Court of Appeal in the appeal that followed the Tribunal's decision[10], neither were they the subject of any criticism and we would respectfully adopt them as a useful reference point for matters relevant to penalty in this case. Those factors are:[11]
[9] Medical Board of Australia and Singh [2017] WASAT 33(S) [30].
[10] Singh v Medical Board of Australia [2019] WASCA 51.
[11] Medical Board of Australia and Singh [2017] WASAT 33(S) [30].
1.The need to protect the public against further misconduct by the practitioner.
2.The need to protect the public through general deterrence of other practitioners from similar conduct.
3.The need to protect the public and maintain confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession even when there is no need to deter the practitioner from repeating the conduct.
4.In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner.
5.Whether the practitioner has breached any:
a.Act;
b.Regulations; and
c.Guidelines or Code of Conduct issued by the relevant professional body;
and if so, whether the practitioner has done so knowingly.
6.Whether the practitioner's conduct demonstrated incompetence, and if so, to what level.
7.Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future.
8.The practitioner's disciplinary history.
9.Insight and remorse (or lack thereof) since a practitioner who fails to understand the significance and consequence of misconduct is a risk to the community.
10.The desirability of making available to the public any special skills possessed by the practitioner.
11.The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. Although, the weight given to personal circumstances cannot override the fundamental obligation to provide appropriate protection of the public interest in the honesty and integrity of practitioners and the maintenance of proper standards of practice.
12. Other matters relevant to the practitioner's fitness to practise and aggravating or mitigating factors although, in general, mitigating factors carry considerably less significance than in the criminal process because the jurisdiction is protective not punitive.

Dr Nadkarni's professional misconduct

Dr Nadkarni consented to orders dated 28 June 2021 in which the Tribunal characterised his conduct in the following terms:
1.There be a finding that the respondent has behaved in a way that constitutes professional misconduct in that:
a.from about 2010, the respondent commenced prescribing human growth hormone, anabolic androgenic steroids (in various forms), testosterone (in various forms), stimulants (in various forms), anastrozole, dehydroepiandrosterone and thyroid extract to patients in the absence of any proper therapeutic indication or clinical justification for the prescribing of those drugs and substances and unnecessarily exposed his patients to the risk of adverse effects of those drugs or substances;
b.from December 2012 to July 2017, the respondent did not record, within his clinical notes relating to nine patients, all of the substances that the respondent had prescribed to those patients;
c.from June 2014 to January 2017, the respondent ordered, in relation to four patients, blood tests without proper or adequate consideration as to the necessity for those blood tests, thereby exposing those patients to potentially unnecessary testing; and
d.from June 2014 to January 2017, the respondent failed to take an appropriate medical history and conduct appropriate examinations when consulting with four patients.
It was submitted by Dr Nadkarni and we accept that the conduct in its entirety was accepted as constituting professional misconduct but that, either alone or in combination, the conduct in (b) – (d) above may not amount to professional misconduct.[12]
[12] ts 46, 28 July 2021.
The facts agreed by the parties were set out in Annexure A to the orders of 28 June 2021. Those facts make it clear that the prescribing practices of Dr Nadkarni were not isolated to the nine patients in respect of whom the notifier reported concerns about the provision of human growth hormone and the Board sought and Dr Nadkarni provided his clinical records. Rather, the cases were a sample of a general practice of Dr Nadkarni's prescribing when practising 'integrative medicine'.[13]
[13] Annexure A to the orders of 28 June 2021, para 54.

That said, although we can say that the general practice of prescribing took place over an extended period of time, being from about 2010 until sometime in 2018 when Dr Nadkarni was informed that his prescribing practice was being investigated, we are unable to make a finding about exactly how many patients were prescribed some or all of the substances or the total number of prescriptions of each of the substances were written by Dr Nadkarni over that time.
Dr Nadkarni's evidence was that he prescribed the substances for patients who attended his integrative medicine practice reporting feelings of fatigue, low mood or irritability, loss of libido, weight gain, loss of muscle mass or injuries.[14] There is no evidence before us that would allow us to make findings about how many patients Dr Nadkarni saw at the practice over the relevant time or how many patients reported symptoms of that kind.

Dr Nadkarni's qualifications, experience and work arrangements

[14] ts 29, 28 July 2021; Supplementary Statement of Evidence of Sanjay Nadkarni dated 13 July 2021 (Exhibit 1), para 230.

The facts relating to Dr Nadkarni's qualifications and experience were not in dispute. Our findings as to those matters which we set out in paras [27] [33] are largely taken from Annexure A to the orders made on 28 June 2021.
Dr Nadkarni:
1.Graduated from the University of Western Australia with a Bachelor of Medicine and a Bachelor of Surgery in 1992.
2.Is registered with the Board as a medical practitioner and holds general registration and specialist registration (Radiology – Diagnostic Radiology).
3.Was awarded a Diploma in Anaesthetics from the Royal College of Anaesthetists (UK) in 1994.
4.Was awarded a Member of the Royal College of Physicians (UK) in 1996.
5.Was awarded a Fellowship of the Royal College of Radiologists in 1999.
6. Was awarded a Fellowship of the Royal Australian and New Zealand College of Radiologists in 2000.
7.Has been a Fellow of the Australian College of Phlebology since 2010.
Dr Nadkarni's primary area of expertise is in interventional radiology and endovascular radiology.
Dr Nadkarni is not a specialist endocrinologist. He holds no formal qualifications in relation to endocrinology.
In 2005 Dr Nadkarni established Endovascular WA. It was his private interventional radiology practice. Through that business Dr Nadkarni carried out:
1.endovascular procedures for the treatment of vascular conditions including varicose veins, pelvic congestion, peripheral arterial disease, varicoceles and uterine fibroids; and
2.interventional radiology for the prevention of diseases and management of pain from various conditions including orthopaedic, podiatric and spinal injuries.
Before establishing Endovascular WA, Dr Nadkarni had been working four days per week at Sir Charles Gairdner Hospital (SCGH) and one day per week at Stirling Radiology. Upon the establishment of Endovascular WA, Dr Nadkarni worked two days per week at that business and three days per week at SCGH. Although Endovascular WA is principally an interventional radiology practice, from between 2005 until 2012 Dr Nadkarni administered botox injections through Endovascular WA.
In 2009 Dr Nadkarni also established another business called New Life Clinic WA. At all relevant times New Life Clinic carried on the business of providing various 'anti-aging' treatments and cosmetic medical services. It was in relation to his work at New Life Clinic that Dr Nadkarni's professional misconduct occurred.
In 2020 Dr Nadkarni commenced another business called Precision Radiology WA. He says, and we accept, that the purpose of the business is to support the procedures which he performs at Endovascular WA and to offer diagnostic radiology services to referring doctors.[15]
[15] Exhibit 1, paras 89 90.
Precision Radiology WA is co-located with Endovascular WA and New Life Clinic.

Dr Nadkarni's current work arrangements

Dr Nadkarni's unchallenged evidence which we accept is that he currently works:[16]
a.One day per week (Friday) and is on call one weekend per month at SCGH.
b.Ninety-five per cent of Monday to Wednesday providing interventional and diagnostic radiological services through Endovascular WA and Precision Radiology WA. One Wednesday per month his interventional radiology (through Endovascular WA) is performed at consulting suites at St John of God Hospital Bunbury.
c.Five per cent of Monday to Wednesday performing cosmetic medical injections through New Life Clinic WA.
d.Thursdays performing interventional radiology at the Mount Hospital.
[16] Exhibit 1, paras 122 125, 131, 134, 147 and 150.
Dr Nadkarni is also on the WA Health Register to assist in a general medicine capacity in case of an outbreak of COVID-19 in Perth or the surrounding regions.[17]
[17] Exhibit 1, paras 156 158.
Dr Nadkarni is an Adjunct Clinical Associate Professor at the Curtin School of Medicine. He is not paid in that position, which involves administering examinations to students and in providing placements at Endovascular WA and Precision Radiology to final year medical students. This commitment involves two days per year examining students and 12 - 18 weeks mentoring and teaching.
In addition, Dr Nadkarni provides educational sessions to general practitioners on developments in interventional radiology and has presented seminars at the annual meetings of the Australian College of Phlebology and the Annual Interventional Radiology Society of Australia.
Dr Nadkarni is in the process of winding down the business of New Life Clinic.[18] He says this is because he wishes to focus his interests on diagnostic and interventional radiology and because he no longer wishes to have a dermal therapy business in his 'business portfolio'[19]. Dr Nadkarni's evidence is that New Life Clinic's website, Facebook page and Instagram profile were all deactivated during the week beginning 5 July 2021.[20]
[18] Exhibit 1, para 126.
[19] Exhibit 1, para 258.
[20] Exhibit 2, para 259.
Dr Nadkarni has had to take a leave of absence from SCGH since the findings of professional misconduct were made. He has been informed by the Director of Medical Services that it is likely that he will lose his position at SCGH if his registration is suspended or cancelled.[21]
[21] Exhibit 2, paras 145 150.
At all times during his practice at both Endovascular WA and New Life Cosmetics, Dr Nadkarni held himself out to be an interventional radiologist with qualifications in anaesthetics, medicine, radiology and phlebology.
From those facts we find that Dr Nadkarni is a very experienced and highly qualified specialist doctor. He was well aware that prescribing the substances he did, was really the province of endocrinologists and also that the way he was using them to treat symptoms of fatigue, lassitude, poor libido, poor sleep, generalised joint and soft tissue pain and weight gain, was not what the substances were approved for and that they would not have been prescribed by an endocrinologist to a patient presenting with those symptoms.

Dr Nadkarni's involvement in 'integrative medicine'

Dr Nadkarni's evidence is that he had always had an interest in general medicine and became interested in integrative medicine in about 2005 when patients attending Endovascular WA expressed to him a level of dissatisfaction about the medical treatment they were receiving from their general practitioners for symptoms such as fatigue, lassitude, poor libido, poor sleep, generalised joint and soft tissue pain and weight gain.
Dr Nadkarni's evidence is that he began to investigate available intervention and management options for these presentations in the hope of being able to add an integrative and holistic element to his practice. At about that same time he was attending local workshops on the use of botox and fillers and it was at those events that he met general practitioners who were also practising integrative medicine. His evidence was that synthetic and bio-identical hormones are the mainstay of treatment in integrative medicine and were the subject of workshops and meetings he attended. He was made aware of the existence of the Australian College of Anti-Aging Medicine (A4M) and the American College of Anti-Aging Medicine (A5M) which were offering courses and online education with a focus on symptom management and the use of synthetic and bio-identical hormones to balance and optimise hormone levels. He also became aware of the Australian College of Nutritional and Environmental Medicine.
Dr Nadkarni says, and we accept, that over the next 10 years he attended many courses and conferences for managing the symptoms for which he was prescribing the medications and found all of the information provided “very convincing”[22] and led him to believe that prescribing the medications in the way he did was clinically justified.[23] In his Supplementary Statement of Evidence, Dr Nadkarni stated:[24]
By 2011, as a result of:
(a)the number of medical practitioners who attended the conferences I attended;
(b)the content of presentations (which included the mechanism of action of the various hormones on body composition, mood, libido, well-being, lethargy and fatigue) and their purported support by what was promoted as current evidence-based literature;
(c)my interpretation of the literature I had read;
I formed the impression that there was genuine science behind the use of synthetic and bio-identical hormones, stimulants and aromatase inhibitors to manage symptoms that the patients the subject of these proceedings presented with. It was this impression that caused me to form a usual practice when providing integrative medicine services to patients which, on reflection, I now regret.
[22] Exhibit 1, para 215.
[23] Exhibit 1, para 217.
[24] Exhibit 1, para 230.
In cross-examination Dr Nadkarni gave evidence to the effect that he understood that endocrinologists, specialists who treat people with hormone irregularities, would not prescribe the substances he had done to patients presenting with the symptoms he was endeavouring to treat. The following exchange between counsel for the Board and Dr Nadkarni took place:[25]
… and I felt – based on having attended these meetings and having some knowledge of these through my studies, I thought at that time it was clinically justified to be offering different treatments and following them up.
So you thought that the patients would be better off having that treatment from you than being referred to an endocrinologist? - - - Not necessarily. They would be referred to endocrinologists but the endocrinologists weren't prepared to offer them any form of treatment for their symptoms.
Well if you have embarked on treating them with hormone therapy, does that not indicate that you decided that they're better off being treated by you than an endocrinologist? - - - Look, I – I mean, it's – it's debatable. I don't think that they're better off being treated by me, but they are getting some form of a treatment that's helping with their symptoms. They come back, they tell you they're feeling better …

We accept Dr Nadkarni's evidence that his prescribing practice was the result of a genuine desire to offer holistic services to patients and a mistaken understanding that there was a clinical justification for prescribing the substances he did.

Dr Nadkarni's disciplinary history

[25] ts 21, 28 July 2021.

Dr Nadkarni has no prior disciplinary history.

References

Dr Nadkarni provided us with 30 character references. They can be divided into the following general categories:
(a)friends of Dr Nadkarni who know him socially;
(b)other radiologists;
(c)other doctors who refer patients to Dr Nadkarni and who therefore know him in a professional capacity; and
(d)other doctors and other allied medical practitioners who have worked with Dr Nadkarni.
Each referee says that they have read the Tribunal's findings and agreed facts. Most of the referees speak of Dr Nadkarni being deeply remorseful for his actions, for having taken responsibility for his actions, having admitted his error and regretting the decisions he made in behaving as he did. Many referees say that they believe Dr Nadkarni behaved as he did with the intention of helping the patients rather than for any other purpose.
The radiologists who have written references for Dr Nadkarni speak of the contribution that Dr Nadkarni makes to this field of medicine, either as a speaker at scientific meetings, through his skills in phlebology and interventional radiology.[26]
[26] Respondent's Supplementary Book of Documents (Exhibit 2), pages 91, 104 and 123.
Dr Joseph Hockley, Acting Head of Department Vascular and Endovascular Surgery at Sir Charles Gardner Hospital wrote that Dr Nadkarni remains a valuable member of the Vascular team at the hospital. He states:[27]
Were he unable to practice here his loss would be very difficult to cover and would undoubtedly impact on the department's ability to provide its current service.
[27] Exhibit 2, page 126.
Country practitioners have written of the benefit that Dr Nadkarni makes to the lives of rural patients because, through Endovascular WA he provides a service to rural patients who have no other local service provider. It is said that not only does he provide a service in the country but that he is flexible in his billing practices and where patients do not have the capacity to be treated as private patients Dr Nadkarni treats them as public patients.[28] The alternative would be having to travel to Perth to be treated as a private patient or having to wait for very long periods of time to be treated in Perth as a public patient.[29] This means that they are seen much more quickly than would be the case if they were to have to wait to be treated as public patients in Perth. Dr Sakarapani says:[30]
Many of my patients have commented to me on the quality of care provided to them by Dr Nadkarni. He is an excellent interventional radiologist with a wide skill set and he provides a very needed service to my rural patients.
[28] Dr Ivan Jansz, Exhibit 2, page 129; Dr Ganesan Sakarapani Exhibit 2, page 125; Dr GK Sharma Exhibit 2, page 85; Dr Matthew John, Exhibit 2, pages 93 94.
[29] See for example reference of Dr Russell Hartley, Exhibit 2, page 96.
[30] Exhibit 2, page 125.
Dr Hartley wrote:[31]
If Dr Nadkarni was not able to continue to provide interventional Radiology services in the South West in particular, but also in Perth, a hugely beneficial pathway of management with [sic] be lost to not only myself, but all of the referring GPs in the South West region.
[31] Exhibit 2, page 96.
Doctors who refer patients to Dr Nadkarni have written of his vast experience in the diagnosis and management of musculoskeletal and chronic pain, varicose vein ablation and management of pelvic pain.[32]
[32] Dr Helena Goodchild, Exhibit 2, page 87.
The referees who know him socially speak of him being a good and generous man, devoted to his family and an enthusiastic participant in community events. A man of integrity, compassion and empathy.[33]

Remorse and insight

[33] For example, see references of Mr Michael Wood, Exhibit 2, page 88 and Mr Vick Skivins, Exhibit 2, page 89.

We have already referred to the fact that Dr Nadkarni's referees have formed the view that Dr Nadkarni is remorseful for his conduct. Dr Nadkarni also expressed regret for his conduct at paragraph 4 of his supplementary witness statement.[34] In that paragraph he stated:
I want to emphasise at the outset of this statement that I sincerely regret and am remorseful for my professional misconduct. I never intended to expose my patients to unnecessary risk of harm. However, on reflection, and particularly with the benefit of considering and critically evaluating the expert evidence and scientific literature filed in the proceedings, I now realise that I exposed my patients to unnecessary risks of harm. I am very sorry for this.
[34] Exhibit 1.
Dr Nadkarni also told us, and we accept, that he has ceased to practice what he describes as integrative medicine, no longer prescribes substances the subject of these proceedings[35] and no longer orders blood tests for patients without first examining and assessing the patient personally.[36]
[35] Exhibit 1, para 423.
[36] Exhibit 1, paras 420 and 422.
From those references and from the statements made by Dr Nadkarni himself both in his witness statement and in the course of his oral evidence we are satisfied that Dr Nadkarni is genuinely remorseful for his conduct.
Dr Nadkarni agreed that this conduct amounted to professional misconduct on the day before this matter was listed for a fiveday hearing. It might therefore be said that any insight or remorse came late in the piece and is not truly genuine and therefore carries little or no weight in the determination of the appropriate penalty. However, Dr Nadkarni explained in his evidence[37] that he had genuinely believed that his treatment of the nine patients was appropriate and that the treatment he was providing was having positive benefits for the patients concerned and that he maintained that belief until the days before the hearing was due to commence when he had had an opportunity to undertake further research and reading into the drugs and had had an opportunity to reflect upon the expert reports and in particular the opinions expressed by his own expert Dr Kennedy in the joint expert report.[38]
[37] ts 28, 28 July 2021; Exhibit 1, paras 314 341.
[38] Joint Statement of Expert Witnesses of Prof Lee Kennedy and Prof Gary Wittert dated 11 December 2020.
While his agreement as to the characterisation of his conduct certainly comes late in the piece, we accept that both Dr Nadkarni's insight into the risks to which he exposed his patients by his prescribing practices and his remorse is genuine.
In addition, Dr Nadkarni has completed some online training in relation to assessing the need for the ordering of pathology tests and in their interpretation.[39] In his supplementary witness statement Dr Nadkarni gave evidence that he had learned from that training that he had been ordering a large number of unnecessary pathology tests by ordering pathology tests before consulting with his patients when the problems with which they were presenting did not warrant those tests being conducted.[40] He said at para 290 of his Supplementary Statement of Evidence:[41]
Having reflected on my historical practice, I now understand Professor Gary Wittert's completely fair criticism of that practice. Going forward, I will only request tests that have a high pre-test probability and will have some impact on the patient's outcome.
And at para 298 he said:
Through completing both of these modules:
(a)I learned to assess whether a diagnostic medical test, such as the blood tests I requested, is likely to play any role on a patient's outcome and help with the patient's further management; and
(b)I now realise that unnecessary tests often lead to further invasive investigations that can in turn lead to unnecessary risks, patient anxiety and financial waste.
[39] Exhibit 1, paras 282 303.
[40] Exhibit 1, paras 282 298.
[41] Exhibit 1.
We also find that Dr Nadkarni has also completed training in relation to the keeping of adequate notes and records. He says that as a result of the online course he completed he has realised that:
(a)His historical note keeping was clearly substandard on occasions insofar as he did not record patient's psychosocial history or alcohol consumption which are important matters because if not recognised early, they can lead to the escalation of potential mental health issues.[42]
(b)He failed to clearly record in his notes the medications he had prescribed for patients which is poor note keeping.[43]
[42] Exhibit 1, paras 309 311.
[43] Exhibit 1, para 312.

We find that this evidence, which was not challenged by the Board and which we accept, is evidence of insight into the deficiencies in respect of these aspects of his misconduct.

Did Dr Nadkarni create a market for the substances?

The Board submitted that we can be satisfied that in prescribing the substances as he did Dr Nadkarni created a market for the substances. Counsel for the Board submitted that a market is created for these sorts of substances as soon as the first prescription for them is written.[44] We are not persuaded that we can make such a finding and we decline to do so for the following reasons.
[44] ts 30 and 41 42, 28 July 2021.
First, there is no evidence before us that Dr Nadkarni advertised that he would prescribe the substances for those conditions. The only evidence before us is that he advertised on his website that persons suffering from fatigue (and the like) should make an appointment to see him.[45]
[45] ts 23, 28 July 2021; Applicant's Bundle part 9, pages 1959 1967.
Second, there is no evidence that any of the nine patients had any connection to one another or indeed that any other patient to whom these substances were prescribed by Dr Nadkarni had a connection to any other patient; for example through bodybuilding or through a gym.
Third, there is no evidence before us that any patient specifically sought out Dr Nadkarni for the purpose of being prescribed any of the substances involved.
Fourthly, there is no evidence before us as to the existence of a market for the particular substances involved.
It may well be the case that there is a market for particular substances and that persons in a community engaged in a particular activity, such as body building, come to know the names of people willing to supply them with steroids who thus contribute to the market by doing so. However, in this particular case, where there is no evidence of any connection between the patients, we are unable to make the finding urged upon us by the Board.

Penalties imposed in other cases

Both counsel for the Board and for Dr Nadkarni referred us to penalties which have been imposed in other similar cases of prescribing of, in particular, testosterone and human growth hormones. Both counsel, however, properly acknowledge that there is no tariff for this kind of behaviour because no two cases are ever exactly alike and that the penalty to be imposed must address the purposes for which it is imposed having regard to the practitioner's individual circumstances and the particulars of the misconduct.
Counsel for the Board took issue with Dr Nadkarni's reliance on penalties imposed by tribunals in other Australian jurisdictions. She submitted that more value might be found in appeal decisions from other States and Territories but that the most guidance is found in Western Australian cases because each jurisdiction had developed its own body of authority when applying the same National Law. While the ratio of decisions from the Western Australian Court of Appeal are, of course, binding on us, we do not discount the value of considering cases from both tribunals and appellate courts from other Australian jurisdictions in circumstances where we are applying a National Law because there is value in developing some consistency, where possible, in approaches across Australia.
The review of the cases demonstrates that as the facts of each case is different so too is the penalty that is to be imposed and that there is no tariff for professional misconduct of this kind.
There are, however, some common features of penalties which can be identified from the cases. They are:
a.that the penalty included a reprimand in all cases;
b.that where cancellation of the practitioner's registration has not been imposed, suspension has been imposed in almost all cases;
c.in most cases a condition restricting the practitioner from prescribing the substances involved in their misconduct has been imposed;
d.in many cases the practitioner has been required to permit the auditing of their practice at their own expense.
Leaving aside the case of Singh, it is also apparent from that review that the cancellation of Dr Nadkarni's registration with a disqualification from reapplying for registration for a period of five years, which was what the practitioner's senior counsel submitted had been proposed by the Board,[46] would be a significantly longer period of disqualification or suspension than that imposed by tribunals for broadly similar conduct in other cases.
[46] Although we can find no reference to the Board's counsel having contended for any particular period of disqualification.
In the result, we have formed the view that the penalty which was imposed in Singh seems to be something of an outlier. It is clear that the Court of Appeal in that case found that the Tribunal had not erred in the exercise of its discretion in imposing a penalty cancelling the practitioner's registration and disqualifying him from applying for reregistration for a period of 10 years. However, the facts in Dr Nadkarni's case, and therefore the result, is distinguishable from that in Singh. In Singh the practitioner's conduct involved prescribing to 740 patients over 14 years. In Dr Nadkarni's case, while he accepts that his conduct in respect of the nine known cases represents a pattern of prescribing at the time, we cannot conclude on the material before us that it involved anything like 740 patients. His conduct took place over a lengthy, albeit less significant period of time. In Singh dishonesty was a significant feature of his misconduct in that he knew there was no therapeutic basis for the prescriptions and cloaked them with a veil of proper therapeutic purpose. This was not a feature of Dr Nadkarni's conduct. In addition, the reasons for his prescribing as he did have not been said to reveal incompetence on Dr Nadkarni's part and Dr Nadkarni has shown insight and remorse, both of which were absent in Dr Singh's case. In Dr Nadkarni's case, unlike the case with Dr Singh, we are confident that his conduct will not be repeated.

Seriousness of the conduct

Dr Nadkarni accepts that he did not keep proper medical records in respect of some of his patients. He considered that attaching to his patient records a copy of the prescriptions written for those patients was an adequate record of treatment. The failure to keep proper notes of consultations and drugs prescribed is serious. Proper record keeping ensures that other practitioners will be able to ascertain not just what has been prescribed but why. Many drugs are prescribed for more than one reason and simply knowing what was prescribed does not identify a patient's symptoms or diagnosis necessitating the prescription. Continuity of adequate care is not assured without adequate records. The taking of a proper history is also important because without it, a proper assessment of a patient's symptoms, the need for treatment and the risks of proposed treatment and possible alternative treatments, cannot be ascertained.
Ordering blood tests without first seeing the patient is also a serious matter. It exposes the patient to unnecessary invasive medical tests. Dr Nadkarni thought he was saving patients from the necessity of a second visit by ordering tests before they saw him, but Dr Nadkarni ought to have known better given his training and experience.
While those aspects of Dr Nadkarni's professional misconduct are serious in themselves, they are not as serious as the professional misconduct engaged in by the actual prescribing of the substances involved in this case in the absence of any therapeutic justification for doing so. Of themselves these lesser failings may not have amounted to professional misconduct requiring either a period of suspension or cancellation of Dr Nadkarni's registration.
The prescribing of substances which are known to bring with them the risk of serious harm to patients without any therapeutic justification is a serious matter and Dr Nadkarni's conduct is a serious example of conduct of its kind. The fact that a doctor of Dr Narkarni's experience, would prescribe such substances, without therapeutic justification, to many (albeit an unknown number of) patients over a lengthy period of time, thereby exposing those patients to risks of serious adverse consequences is a serious example of professional misconduct. That misconduct was compounded by the other failings which Dr Nadkarni has admitted in these proceedings.
Dr Nadkarni's pattern of prescribing may lack some feature of other more serious cases, such as the creation of or contribution to a market for the substances (particular the testosterone and human growth hormone) or profit motive. However, in our view, the presence of those features would have aggravated the seriousness of the misconduct rather than making Dr Nadkarni's misconduct somehow better, or less serious.

Global penalty

It was submitted by the parties, and we accept, that we can impose a global penalty that addresses all of the aspects of the professional misconduct reflected in the facts set out in the Annexure to the orders of 28 June 2021 because they were all related to Dr Nadkarni's practise of what he regarded to be 'integrative medicine'.

Conclusions

The primary purpose of imposing a penalty is the protection of the public. As we have already noted, there are several elements to the protection of the public. We turn now to consider these elements as they apply in this particular case by reference to factors identified by the Tribunal in Medical Board of Australia and Singh.[47]
[47] Medical Board of Australia and Singh [2017] WASAT 33.
First, as we have said, we have come to the view that Dr Nadkarni's professional misconduct is to be characterised as a serious example of its kind.
Second, we have come to the view that protecting the public by deterring Dr Nadkarni from behaving in this manner in the future is not the most significant feature of the penalty to be imposed in this case because:
1.we have found that Dr Nadkarni has insight into the risks to patients caused by his behaviour and is remorseful and is therefore unlikely to repeat the conduct for which the penalty is being imposed;
2.we accept that Dr Nadkarni was truthful in his statement that he has ceased practising integrative medicine and intends now to focus on providing diagnostic radiological services and interventional radiological services; and
3.we have found that Dr Nadkarni has completed courses in prescribing, in relation to pathology tests, both ordering and interpreting and in respect of patient notes and record keeping which should address the deficiency in his conduct in respect of those matters.
Third, we have formed the view that the protection of the public from the possibility of a repeat of Dr Nadkarni's misconduct (if we do not cancel his registration and impose a period of disqualification) could be addressed by imposing conditions upon his registration which restrain him from prescribing the particular substances the subject of these proceedings or substances of the like type.
Fourthly, we have come to the view that, in addition to the issuing of a reprimand, a period of suspension or disqualification is required in order to mark the seriousness of Dr Nadkarni's professional misconduct. Nothing less would, in our view, suffice in circumstances where a doctor of such extensive training and experience, who should be expected to have known better as a result of that training and experience, has put patient safety at risk over an extensive period of time by his misconduct.
Fifthly, the protection of the public by the imposition of a sanction which should act as a deterrence to others who may consider embarking on the same kind of behaviour is only likely to be achieved by the imposition of a term of suspension or cancellation of his registration. If a specialist with as much training and experience as Dr Nadkarni, who must understand the importance of evidence based medicine, can come to regard the prescribing of these substances to patients presenting with the problems Dr Nadkarni thought he was alleviating, even knowing that specialist endocrinologists would not do so, then other practitioners may be at risk of similar misconduct. There is, therefore, a heightened need for general deterrence in the penalty to be imposed on Dr Nadkarni.
Sixthly, we consider that in the circumstances, the need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions is an important factor in imposing a penalty. The public is entitled to expect that their doctors will treat their symptoms based upon evidencebased medicine. The fact that someone as experienced as Dr Nadkarni could regard his prescribing practice as justified, speaks to the need to deter others from following in his footsteps and to ensure the public, who repose a great deal of trust in practitioners by reason of their supposed skill, training and expertise, can be confident in their treatment.
Seventhly, while Dr Nadkarni's conduct fell below the high standards which are to be expected of someone of his profession, we do not find that he lacks the character and trustworthiness necessary to discharge the responsibilities of his profession such that he should be assumed to be permanently or indefinitely unfit to be registered.
Eighthly, while we have regard to the fact that Dr Nadkarni is the sole breadwinner for his young family and that any period of disqualification or suspension will almost inevitably have an impact upon that family, we have already referred to the general principle that personal hardship which may be suffered by the practitioner and his or her family is a secondary consideration in matters of this kind. There is nothing in the material which was provided to us that would suggest any hardship would be exceptional in nature.
Ninthly, Dr Nadkarni's evidence is that if he were to be suspended from practice for a period of more than six months, the staff he employs will be likely to lose their jobs. We give that issue no weight in determining penalty.[48] As regrettable as that consequence may be, having regard to the purposes of imposing penalties under the National Law we cannot be influenced by that consideration. The appropriate penalty in this case cannot be moderated to ensure that Dr Nadkarni's employees' employment is maintained.
[48] We note that Dr Nadkarni's counsel placed no reliance on this evidence in his submissions on penalty.
Tenthly, while it is also inevitable that the loss, temporary or otherwise, of Dr Nadkarni's provision of radiological services which will flow from a period of suspension will inconvenience SCGH and likely cause delays in some country patients receiving affordable medical treatment, there is nothing in the materials before us that would allow us to form the conclusion that Dr Nadkarni is possessed of special and exceptional skills which are so limited within the medical community in Western Australia that notwithstanding that the behaviour would otherwise warrant a period of suspension or disqualification, a different course should be taken in his case to ensure that his skills and expertise is not lost to the public.
Finally, Dr Nadkarni has expressed some concern that if he is unable to practice in his area of specialty for any significant period time the result may be that he loses the skills essential to the practice of interventional radiology which requires precision in the injecting of veins which is both attained and maintained by regularly doing so.[49] We acknowledge that risk exists. It may be that some refresher training or a period of supervision will be required following Dr Nadkarni's return to practice to ensure that he remains sufficiently skilled. In our view, the risk can be adequately addressed by other means.
[49] Exhibit 1, para 427.
Having had regard to all of these matters, in particular that there was no dishonesty or incompetence of a kind that would render him permanently unfit to practise in his profession, we have come to the conclusion that a reprimand and the suspension of Dr Nadkarni's registration for a period of 20 months, together with conditions which will have effect upon his return to practice, will adequately reflect the seriousness of the professional misconduct and ensure the protection of the public and that the cancellation of his registration is not required.
Given that we have accepted Dr Nadkarni's assurances that he no longer intends to practice other than as a specialist radiologist, we do not consider that it is necessary to impose a condition which would restrict him to practising as a radiologist upon his return to practice. We do however, consider that preventing him from prescribing the substances involved in this matter in any form, subject to the one exception sought in respect of salbutamol, is appropriate.
In order to address the possibility that Dr Nadkarni will become deskilled during his suspension, we will impose a condition on his registration requiring him to satisfy the applicant that he has the skills to enable him to undertake interventional radiology before recommencing practice.
We consider that a review period for the conditions of 6 months is appropriate.
The parties have agreed that Dr Nadkarni will pay a contribution to the Board's costs. We consider that is an appropriate order to make in this case.

Proposed Orders

Subject to hearing from the parties as to the precise form of the orders, we would make the following orders:
Reprimand
1.Pursuant to s 196(2)(a) of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) the respondent is reprimanded in relation to the professional misconduct referred to in the Tribunal's order dated 28 June 2021.
Suspension
2.The respondent's registration as a medical practitioner is suspended for a period of 20 months.
Conditions on registration
3.Pursuant to s 196(2)(b)(iii) of the National Law the respondent's registration as a medical practitioner is subject to the following conditions:
A.subject to condition B, the practitioner must not prescribe, possess, supply, administer, handle, dispense, access, ('access') including as emergency treatment supplies or doctor's bag stock the following substances:
i.human growth hormone;
iitestosterone in any form, including Primoteston Depot or Reandron;
iii.any steroid with an anabolic and/or androgenic effect, including Danazol;
iv.any aromatase inhibitor, including anastrozole;
v.dehydroepiandrosterone (DHEA);
vi.any stimulants including phentermine and salbutamol; and
vii.thyroid extract.
B.Condition A does not apply to the respondent's access to salbutamol for administration by inhalation or intravenous infusion for the management of:
(i)acute bronchospasm before or after an interventional radiology procedure; or
(ii)acute asthmatic attack before or after an interventional radiology procedure.
C.Before resuming practice as an interventional radiologist the respondent must satisfy the applicant that he has clinical skills that will allow him to do so safely.
D.Within 21 days of the notice of imposition of these conditions, the practitioner must provide to AHPRA:
(a)acknowledgement, on the approved form (HP1), that AHPRA may obtain reports from a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Partner, Proprietor, Owner or equivalent (the senior person) at each and every place of practice on a monthly basis or as otherwise determined by the Board of AHPRA;
(b)acknowledgement, on the approved form (HP1), that for the purposes of monitoring compliance with the condition restricting access to the medication, AHPRA may contact Medicare and/or drugs and poisons regulatory authorities in relevant states or territories; and
(c)confirmation, on the approved form (HPS1), from the senior person at each place of practice that they are aware AHPRA will seek reports from them.
Monitoring of compliance with conditions
E.Within 21 days' notice of the imposition of these conditions, the practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person), at each current place of practice. In providing this form, the practitioner acknowledges that AHPRA will contact the senior person and provide them with a copy of the conditions on the practitioner's registration or confirm that the senior person has received a copy of the conditions from the practitioner. The practitioner will be required to provide the same form:
(a)within 7 days of the commencement of practice at each subsequent place of practice; and
(b)within 7 days of each and every notice of any subsequent alteration of these conditions.
Cost of compliance with conditions
F.All costs associated with compliance with the conditions on his registration are at the respondent's own expense.
Review period
G.The review period of six months is set for the conditions imposed on the respondent's registration.
Costs of proceedings
4.The respondent is to pay a contribution to the applicant's costs of bringing the Tribunal proceedings to be assessed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
CH
Associate to Judge Glancy
23 SEPTEMBER 2021