Background facts

Dr Brittain is a General Practitioner (GP) who was the subject of three separate complaints to the Health Care Complaints Commission (HCCC). The complaints principally concerned Dr Brittain prescribing medication listed on the Poisons List under the Poisons and Therapeutics Goods Act 1966 (NSW) (PTGA) for seven different patients over the period January 2009 to August 2015.

Relevant circumstances

Significantly, in his Reply to the HCCC's application dated 4 May 2008, Dr Brittain admitted each of the three complaints and their particulars. Dr Brittain also accepted that his conduct constituted both unsatisfactory conduct and professional misconduct. As there was no factual contest between the parties, the Tribunal decided to consider the question of breach and appropriate protective orders at the same hearing.

The complaints the subject of the hearing were as follows:

Dr Brittain engaged in conduct amounting to unsatisfactory professional conduct within the meaning of s 139(1)(a) and (b) of the National Law when he prescribed medication to the identified patients in that (Complaint 1):

  1. he engaged in conduct which fell below the standard of care reasonably expected of a medical practitioner with an equivalent level of experience/training; and
  2. he engaged in improper or unethical conduct related to the practice medicine or purported practice.
  3. Dr Brittain failed to maintain adequate medical records for each of the seven patients nominated in the Complaint, in contravention of Pt 4, cl 7 and Sch 2 of the Health Practitioner Regulations (NSW) Regulation 2010 (Regulation) amounting to unsatisfactory professional conduct (Complaint 2); and
  4. by reason of the number of instances of unsatisfactory professional conduct engaged in by Dr Brittain and the serious nature of the conduct, those instances, when consider together, constituted professional misconduct within the meaning of s 139E of the National Law (Complaint 3).

Findings

Complaint 1 was the 'primary complaint' and comprised of 11 particulars, each particular relating to a particular patient or all patients that Dr Brittain had prescribed medications included on the Poisons List to, during the period nominated in the Complaint. Complaint 1 alleged that each particular justified an individual finding of unsatisfactory professional conduct. The drugs which Dr Brittain was alleged to have 'mal-prescribed' were annexed in Schedules A to G of the complaint and included 12 drugs, such as Oxycontin and Valium. In particular, Drugs 1, 3, 9 and 12 were medications listed in Sch D of the PTGA Regulation 2008 and Sch 4 of the Poisons List, while drugs numbered 2, 5, 6, 7, 8, 10 and 11 were listed in Sch 8 to the Poisons List.

After having regard to the admissions of Dr Brittain and the unchallenged evidence of the HCCC, the Tribunal found that there were 'failures on the part of Dr Brittain to assess patients, fully and appropriately, before prescribing the medications that he did…failure to make timely referrals for specialist input to the continued prescription of the drugs selected by him and the absence of reasonable therapeutic justification for the dose, quantity and combination of drugs prescribed in each case.' The Tribunal also found that 'in all but one case there is a failure to obtain approval under the PTG Act when it was, or ought to have been, apparent that such authority was required.'

The Tribunal found the particulars of Complaint 1 to be established, finding Dr Brittain guilty of unsatisfactory professional conduct.

Complaint 2 was directed at Dr Brittain's breach of the Regulation as it was at the time of the conduct complained of. Dr Brittain did not excuse his failure to provide and keep appropriate records but attempted to explain his failure as a result of having a significant numbers of patients waiting to see him on any one day and trying to spend a minimum amount of time on recording a patient's consultation. The Tribunal did not consider this an adequate reason for Dr Brittain's failure, finding that Complaint 2 was established and that Dr Brittain was guilty of unsatisfactory professional misconduct.

Finally, Tribunal found that Dr Brittain's conduct established in Complaint 1, together with his failure to keep adequate records, amounted to professional misconduct within the meaning of s 139E(a) and (b) of the National Law and established Complaint 3. In particular the Tribunal noted that '[t]he failure of Dr Brittain [to keep adequate records] is no mere technicality. Self-evidently, fulfilment of the requirement for adequate records, containing the information identified in Sch 2 of the Regulations forms an important functions for the care of each patient.'

Orders

The Tribunal ordered that Dr Brittain:

  1. be cautioned or reprimanded;
  2. have conditions considered appropriate by the Tribunal, placed on his registration;
  3. seek and undergo medical or psychiatric treatment or counselling;
  4. complete an educational course specified by the Tribunal;
  5. report to the practitioner's practice at the time, in the way and to the persons specified by the Tribunal; and
  6. seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.

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