HCCC v Dr Adrian Cohen [2007] NSWMT 6

New South Wales Medical Tribunal

CITATION : HCCC v Dr Adrian Cohen [2007] NSWMT 6 TRIBUNAL: Medical Tribunal PARTIES : Health Care Complaints Commission Dr Adrian Cohen FILE NUMBER(S) : 40007 of 2006 CORAM: Ainslie-Wallace, DCJ - Giuffrida, Dr M - Ng, Dr J - Ettinger, Ms G CATCHWORDS: Self prescribing - Misuse of the prescribing system - Failure to keep adequate drug register - Dishonestly purchase wholesale drugs without a licence Medical Practice Act 1992 (NSW) SS36 37 & 64 LEGISLATION CITED: Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 1994 Briginshaw v Briginshaw (1938) 60 CLR 336; CASES CITED: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; exparte Tziniolis: re Medical Practitioners Act (1966) 67 SR (NSW) 448 DATES OF HEARING: 29.1.2007 to 31.1.2007 DATE OF JUDGMENT: 4 April 2007 LEGAL REPRESENTATIVES: G A Farmer of counsel M Ainslworth of counsel ORDERS: 1. The respondent be reprimanded;; 2. The respondent's practice be supervised by a practitioner nominated by the respondent from a list of suitable practitioners provided to him by the Medical Board. The list is to be provided within twenty-eight [28] days of this order and the respondent must nominate a supervisor within fourteen [14] days of the provision of that list. Failing such nomination by the respondent, the supervisor be a person determined by the New South Wales Medical Board;; 3. The supervision will be no less than monthly and will include (but be not limited to) an inspection of records kept in the course of the respondent's practice and any and all drug registers maintained by him and discussion with the supervisor of the various legislative and regulatory requirements attendant on proper medical practice;; 4. The supervisor will provide a monthly report to the NSW Medical Board on the fact of the supervision and the matters discussed during the meetings;; 5. The supervisor will promptly report to the NSW Medical Board any irregularity in the practice of the respondent revealed during the period of supervision;; 6. Any cost associated with the supervision be borne by the respondent;; 7. The supervision will be for a period of twelve [12] months from the date of nomination of a supervisor;; 8. For a period of twelve [12] months from the date of these orders, the respondent submit to thrice weekly urinalyses for the detection of drug use or some other form of testing acceptable to the New South Wales Medical Board and the respondent will bear the cost of these tests;; 9. For a period of twelve [12] months from the date of these orders, the respondent will attend on a psychiatrist specialising in matters of Drug and Alcohol addiction to discuss issues of drug addiction and relapse prevention strategies;; 10. Within twenty-eight [28] days of the making of these orders, the respondent will nominate a psychiatrist from a list provided by the NSW Medical Board. The list is to be provided within twenty-eight [28] days of this order and the respondent must nominate a psychiatrist within fourteen [14] days of the provision of that list. Failing such nomination by the respondent, the psychiatrist will be a person determined by the New South Wales Medical Board;; 11. The number of attendances will be determined by the psychiatrist nominated who will report the fact of the attendances to the New South Wales Medical Board;; 12. The cost of attendance on the psychiatrist will be borne by the respondent.; 13. The respondent pay a fine of $15,000 within two [2] months of 4th April 2007;; 14. The respondent pay the applicant's costs of and incidental to these proceedings

JUDGMENT: THE MEDICAL TRIBUNAL Wednesday 4th April 2007 OF NEW SOUTH WALES AT SYDNEY No. 40007 of 2006 BETWEEN Health Care Complaints Commission Complainant Adrian Cohen Respondent

Deputy Chair: Judge A M Ainslie-Wallace Members: Dr M Giuffrida Dr J Ng Ms G Ettinger

Orders and Reasons for Determination

Order: Pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992 the Tribunal has made a Non Publication Order in respect of the names of the patients referred to in the proceedings.

Introduction: 1. The Health Care Complaints Commission (the 'HCCC') alleges that the respondent, a medical practitioner is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of sections 36 and 37 of the Medical Practice Act, 1992 in that he has 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 has engaged in improper or unethical conduct relating to the practice of medicine.

2. There are nine particulars of the respondent's alleged conduct which are in summary;

(i) On 20th June 2000 he obtained for his own use 20 grams of cocaine hydrochloride by issuing a prescription in the name "A" for drugs including 20 grams of cocaine hydrochloride; (ii) On 4 June 2001 he issued a prescription in the name "B" for codeine otherwise than for medical treatment and/or in a quantity or for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to the provision of the Poisons and Therapeutic Good Regulation 1994; (iii) On 30th August 2001 he obtained for his own use 20 grams of cocaine hydrochloride by issuing a prescription in the name "C" for drugs including 20 grams of cocaine hydrochloride; (iv) On 4th February 2003 he attempted to obtain for his own use 20 grams of cocaine hydrochloride by issuing a prescription in the name "C" for drugs including 20 grams of cocaine hydrochloride; (v) On other occasions (unspecified) between 1998 and 2003 the respondent improperly obtained cocaine hydrochloride from pharmacists for his own use; (vi) Between 1998 and 2003 he used cocaine; (vii) Between June 1997 and February 2003 he improperly filled a Doctor's Bag Order each month of pharmaceuticals which he supplied to a number of medical facilities over which he had control (viii) As the Director of Immediate Assistants Pty Ltd, he contravened the provisions of the Poisons and Therapeutic Goods Act 1966 and Regulations by procuring wholesale quantities of medical equipment and pharmaceuticals, knowing that the company did not hold a wholesalers licence; (ix) Between 1999 and 2003 failed to accurately and appropriately maintain drug registers kept under his care and control and located at the Sydney Cricket Ground, Stadium Australia, Sydney Football Stadium and at his home surgery/office.

3. Except as to the allegations in particular (viii), none of these particulars was disputed. The hearing concerned the findings and orders to flow from the conduct of the respondent. Background

4. The respondent was born on 3rd March 1961 and was registered as a medical practitioner on 7th March 1984.

5. The respondent graduated in medicine in 1984. Between 1984 and 1987 he worked at the Prince of Wales Hospital, Prince Henry Hospital and Royal South Sydney Hospital first as an intern and then as a registrar. He had part time employment as a general practitioner [1] and he said that he had worked some shifts on a Sunday evening at a medical clinic. From 1987 until 1990 he was employed by the Westpac Surf Lifesaving Association, Helicopter Rescue Service as Deputy Medical Director and later as Chief Medical Officer.

6. In 1986 the respondent incorporated a company, Immediate Assistants ('IA') of which he is the sole director. In 1996 with another medical practitioner, Dr Les Blackstock, he incorporated Immediate Assistants Services ('IAS'). Through those companies he has contracted his medical services to various organisations from time to time.

7. Through IAS the respondent provided medical services on cruise ships in which passengers were provided with medical services for a fee. IAS had a wholesale pharmaceutical licence which enabled it to purchase of drugs at wholesale prices to sell at a profit on the ships.

8. From 1997, through IA, the respondent contracted to provide medical services in Australia and overseas in connection with "Eco Challenge" and later for the television series "Survivor". The respondent said that by the terms of the contract he provided medical services to the competitors and other people associated with the ventures. The respondent said he was sometimes called upon to provide medical services to people from the area in which the event was being staged. No direct charge was made for medicines associated with these ventures.

9. The respondent said that he obtained drugs and other medical equipment used on the overseas locations directly from suppliers using company orders. He also said that he purchased drugs and equipment from pharmacies in his local area and sought competitive prices by buying large amounts.

10. In 1996 the respondent began to provide emergency medical care at sporting venues. The contract price for the provision of medical services to the Sydney Football Stadium ('SFS'), the Sydney Cricket Ground ('SCG') and at other venues was determined by the number of people estimated to attend each event. That fee included the provision of medication. There was no separate charge for medication made to any individual.

11. At each of the sporting venues at which the respondent offered medical services, he kept a fully equipped emergency room which included a supply of Schedule 4D and Schedule 8 drugs. Doctor's Bag Orders

12. According to clause 113 of the Pharmaceutical Benefits Schedule, [2] certain drugs are provided to doctors at no charge: "for supply to patients for emergency use", through a system known as Doctor's Bag Orders ('DBO'). These drugs are intended to be provided free to patients in emergencies and are obtained from a pharmacy using an order form. They may be obtained on a monthly basis but not more frequently. There is a limit placed on the amounts of each item that may be supplied through the DBO system each month. The Pharmaceutical Benefits Schedule specifically provides that DBO supplies are not to be used by ship's doctors.

13. The DBO order forms are supplied in a book. At the front of the book is a sheet [3] headed "Important" which contains instructions about the use of the form and the Doctor's Bag supplies. Paragraph 4 of that sheet contains the following: "Further supplies of any Doctor's Bag item may not be ordered if the stock on hand of the item is equal to or exceeds, the maximum quantity shown in column 3 of the list of Emergency Drug (Doctor's Bag) Supplies".

14. There was no dispute that the appropriate use of the DBO system was for emergency use by a doctor for individual patients. Further orders of drugs through the system are intended to "top up" supplies after they had been used for emergencies. [4]

15. From June 1997 until February 2003, the respondent used the DBO system each month to receive supplies to the maximum amount of the listed drugs. At no time relevant to the hearing did the respondent posses a medical bag. The respondent allocated the drugs supplied in this way to the various centres from which he dispensed medical services. It was not disputed that this was an inappropriate use of the DBO system.

16. The respondent took the position that none of the drugs provided to him through the DBO system was intended to be taken overseas or used in circumstances in which he charged directly for their supply. In cross-examination he conceded that this might have happened. In his statement he conceded that from time to time when he was preparing a medical kit for overseas travel, if a pharmacist did not have the supplies he needed, there "may" have been a transfer of those supplies from the sporting venues to the overseas kit. Equally he conceded that the drugs supplied under the DBO system "may" have found their way onto the P&O Ships when his services were engaged by them but he denied that he would have charged for their administration. [5]

17. The drug registers from the various sporting venues show that in some cases the whole of the amount of drugs supplied through the monthly DBO was transferred to one of the travelling medical kits referred to as "Tardis" [6] which were generally taken on overseas trips although, the respondent said, that he used a Tardis medical kit for work in far North Queensland. The thrust of the respondent's evidence was that he could not be sure that drugs obtained through the DBO were not used overseas or on the P&O ships.

18. The applicant submitted that, as the respondent charged the various sporting and other venues a cost per person attending the venue, which included the provision of drugs, he received a commercial advantage by using the drugs issued free of charge to him and for which he, in effect, later charged to dispense. There was no significant dispute that this was so although it was argued for the respondent that any commercial advantage to him was small.

19. Despite the claim made by the respondent in his statement of the 1st July 2006 [7] that: "No patient was ever charged for these medications", the evidence satisfies the Tribunal that the cost charged to each of the venues at which the respondent offered medical services, included the cost of drugs supplied. In the result, the respondent accepted that there would have been a commercial advantage to him- in the order of $28,000 over the period investigated through his use of the DBO supplies. The Tribunal is of the view that whether the gain to the respondent was small or not, the gravity of this particular lies in his misuse of the system.

20. The respondent said that it was Dr Blackstock [8] or the pharmacist [9] from whom he received the DBO supplies who suggested that he use the DBO system to stock up on drugs for use at the various venues. He said that he applied for an order book and thereafter had a standing monthly order for DBO drugs. In addition to the drugs obtained through the DBO system, the respondent made purchase orders from pharmaceutical suppliers when the DBO supply was insufficient for his needs.

21. In explaining his misuse of the DBO system, the respondent said that he had received no instruction nor was he aware of the purpose of or regulations applying to the proper use of the DBO system. He said that he had not read the written notice on the front of each book of DBO order forms which, in the Tribunal's view, makes the purpose of the DBO supplies entirely clear.

22. The respondent said that at the time he did not consider himself to have received a benefit from his use of the DBO. Given that the respondent was also paying for the supply of drugs of the same type as in the DBO supply, it seems unlikely to the Tribunal that he never considered the benefit he was obtaining through the DBO system.

23. There is no doubt that the respondent, in fact, obtained a commercial advantage by using the free supplies he obtained through the DBO system. His conduct in misusing the DBO system in this way was either a deliberate course of misuse of the system or demonstrates that he was ignorant of and indifferent to the rules which governed the operation of the system.

24. The respondent's conduct in this aspect of the complaint demonstrates a failure to make even the most rudimentary enquiries or take any step to familiarise himself with the requirements of the DBO system before using it to the full monthly allotment over a period of many years. Wholesale licence

25. Before a practitioner can buy drugs at wholesale prices and sell them at a higher price to the end user, the practitioner must hold a license.

26. Up until 1999 when the respondent ceased his professional association with Dr Blacklock, IAS held a wholesale licence. The respondent said that from 1999 onwards he thought that IA did not need a licence and made no application for one.

27. The respondent said that he purchased drugs and supplies through equipment wholesalers and pharmaceutical suppliers and also through his local pharmacies. It was argued that what the respondent was doing, at least so far as the pharmacies were concerned, was securing low prices by buying large quantities. He also arranged to buy supplies through Careflight.

28. Despite not holding a wholesale licence the respondent bought drugs at wholesale prices for use overseas and at sporting venues in Australia. While the respondent maintained that no patients were charged for the drugs it is beyond doubt that the contracts for his medical services included the provision of medicines and the charge for those medicines was included in the overall contract price. The Tribunal is satisfied that the respondent was buying drugs and equipment at wholesale prices and obtaining the benefit of those prices when charging for them in the contracts for services.

29. In 2005 the respondent obtained a wholesale licence. He said in evidence that he now uses forms produced by his company to place orders for goods at wholesale prices. He is the person who is responsible for placing the orders.

30. During cross-examination it was suggested to him that when he was unlicensed he had contravened the provisions of the Poisons and Therapeutic Goods Act 1966 as alleged in the complaint. The respondent said that he then was (at the point of his cross-examination in the hearing) unaware of the terms of the regulations. He said that despite being a holder of a licence, he did not know what was meant by the terms: "wholesale purchase" or "wholesaler". [10] In the light of this evidence, the respondent was asked how then he could be confident that the process he had adopted since being licenced complied with the regulations. He said that he was given some advice by a pharmacist about how to make a company purchase order to purchase pharmaceuticals. The answer throws no light on whether the respondent has any idea of how the holder of a licence is required to conduct himself under the terms of the licence. Cocaine

31. On three occasions between 1998 and 2003, the respondent wrote a prescription in the name of three different people referred to in this hearing as 'A', 'B' and 'S', for drugs including cocaine hydrochloride. In 1998 the respondent used a company purchase order to buy cocaine for himself.

32. The first prescription was written in June 2000 for person "S" and called for the supply of cocaine together with other drugs. There was no dispute that all of the drugs listed on that prescription and the subsequent prescriptions were not intended for the people nominated nor was it disputed that the cocaine hydrochloride was for the respondent's personal use. The prescription written in August 2001 in the name of person "B" was for the supply of cocaine. The prescription written in February 2003 in the name "B" was for cocaine as well as morphine and pethidine.

33. The respondent said that while in America in 1998 he was given some cocaine at a party. Shortly afterwards he returned to Australia and obtained 20 grams of cocaine for himself by ordering it from a pharmaceutical company. Having obtained cocaine in that way in 1998, he then wrote prescriptions for 20 grams of cocaine on 23rd June 2000, 30th August 2001 and on 4th February 2003.

34. When first he was interviewed by the Pharmaceutical Services Branch (the 'PSB') in April 2003 about these prescriptions, the respondent told the investigator that he used the cocaine for medical purposes. The PSB investigator's report noted that the cocaine was not entered in any of the drug registers. The respondent was asked what had happened to the cocaine and he told the investigators that he had flushed it down the toilet. Later in the interview, the respondent said that he had used cocaine recreationally in the USA.

35. In his statement of April 2003, [11] the respondent conceded that what he had told the investigators was not true and he said that the cocaine obtained with the prescriptions was for him. The respondent said that he started to use cocaine when he was under great strain from his business, travelling frequently and suffering from jet lag and he felt the need to be able to conduct business meetings in a dynamic way. He described his use of cocaine as: "sporadic and recreational" before going to social events or events which were connected with his business and when he felt that he needed to: "lift myself so I could participate on the level that has been expected of me over the years".

36. He said that he would remove an amount of cocaine from the container in which it was dispensed, use the cocaine and then destroy the residue in a fit of despondency "knowing full well that there was still an amount in the safe at my house". The respondent said that he had used the "majority" of the cocaine delivered to him. He said that there were periods during those years when he did not use cocaine and other periods when his use was continuous.

37. When the respondent wrote the prescription for cocaine in February 2003, the pharmacist to whom the prescription was delivered was concerned and contacted the PSB and, although she delivered the cocaine to the respondent, his use of the prescription system to obtain cocaine for himself was discovered through her enquiries. When investigators seized the cocaine referrable to that February 2003 prescription from the respondent's safe, the whole amount of the cocaine delivered to him was intact.

38. Through either placing an order or writing prescriptions over the years between 1998 and 2003, the respondent obtained 80 grams of pharmaceutical grade cocaine for himself of which he used the majority of 60 grams.

39. The respondent said that when he was using the cocaine he had no idea of its purity (although said that he was aware it was pharmaceutical grade) nor how much of it he was using each time nor did he measure the dose he took. He was unable to say how long it took him to use all of the 20 grams of cocaine after it was supplied. He did not know that it was a Schedule 8 drug [12]. The respondent maintained that he could not say at all how long it took him to use the 20 grams of cocaine supplied to him in August 2001.

40. In October 2003 the respondent consulted Dr Michael Diamond, psychiatrist, for a medico-legal opinion as to whether he was "impaired" through his use of cocaine. Although he told Dr Diamond that he last used cocaine in 2001, given the supply in August 2001 and the vague nature of his evidence about his use, the Tribunal could not be certain that his use of cocaine did not continue into 2002. The respondent conceded as much in his evidence.

41. Dr Diamond diagnosed the respondent as having a: "substance abuse - cocaine".[13] The respondent said when asked about that diagnosis and whether it applied to him: [14] "I read his report and he's the expert; that's what he said. I did not go and look at that diagnosis specifically and ask myself whether I, point for point, or even part of that, reflected that." He was asked whether he conceded that he had a substance abuse condition and said [15] "...I find ....the language in these things quite semantic, particularly in diagnosis. There is a substance there that I'm obviously misusing. I don't know the corollaries of that in terms of degrees of addiction or who these terms are actually used to be able to do that. I know it was the wrong thing to do, I know there's a potential for abuse. I also know that I stopped doing it and didn't want to continue and successfully did that".

42. The respondent said that other than attending Dr Diamond on two occasions, he sought no treatment nor advice about his use of cocaine. When it was suggested to him that because of the addictability of cocaine, there was a very high rate of relapse by people using cocaine - it was suggested 90% - the respondent immediately replied that he fitted into the 10% of people who did not relapse.

43. The respondent said that after 1998 he did not use cocaine when he was overseas only while in Australia because he said that there were considerable pressures on him running his medical practice business in Australia. The respondent felt that those pressures were not on him while on overseas ventures. When asked about the prospect of relapse, the respondent said that he had: "learned not to give in to temptation"' and that he had other coping strategies in place that he established in 2001. However, he said that he wrote the prescription in 2003 because he was subject to the same pressures that he had faced before and he resorted to writing the prescription to have cocaine to use as a way of coping. [16]

44. There are two aspects of the respondent's use of cocaine; first the risk to himself at the time of his use and the obvious criminality of his actions. The second is his systematic, fraudulent use of the prescription system to order the drug for himself.

45. If the respondent's evidence is to be accepted, he used "the majority" of 60 grams of cocaine over a period of five years without knowing or enquiring about its purity, how much would have amounted to a dangerous or toxic dose, how much he used each time or how long it took him to consume it. He has taken no advice nor sought any information about the risk of addiction or relapse by cocaine users and expressed no interest in doing so. The risk to himself was not a matter in which he seemed to have any interest, yet on his evidence, it was after only one use of cocaine at a party in 1998, that he then obtained 80 grams of cocaine to use himself. He did not embrace Dr Diamond's diagnosis nor did he appear to have given it any thought.

46. The respondent went to some trouble to ensure that his misuse of the prescribing system was not discovered. He told both pharmacists from whom he obtained the cocaine that it was for use in the event that someone he was treating "popped an eyeball" [17] during his work on the "Survivor" television show. The respondent maintained this deception when he was first interviewed by investigators of the PSB and then asserted to them that he had flushed the cocaine down the toilet. Of course, his use of cocaine was flagrantly illegal.

47. In relation to writing the prescriptions for cocaine and other drugs for people who were not intended to receive the drug, the respondent said that he needed the drugs for his overseas ventures (and the cocaine for himself) and wrote the prescriptions in the name of members of the crew who would be with him overseas. He said that he did this on the advice of the pharmacist who, he said, told him that he needed a "name" on the prescription even if the person who was nominated was not intended to receive the drugs. Without making any further inquiry, the respondent wrote the prescriptions in the names of crew members. He said in his statement [18] that the suggestion (of putting any name of the prescription) "... troubled me at the time because we had no prior knowledge of which contestants or crew members would require the medications and the quantities were larger that the needs of a single person....I expected, however, that the pharmacists understood the legal requirements for prescriptions better that I in these circumstances..." 48. In that state of ignorance, the respondent wrote prescriptions for people who were not intended to receive drugs. It was not until 2003 that the respondent understood, after speaking to another pharmacist, that he could write a prescription: "for emergency use" when he required drugs which were not for a particular patient. Drug Registers

49. The respondent said that he maintained a register of Schedule 8 drugs at each sporting venue at which he provided medical services. When these registers were examined during the investigation they were found to be deficient in a number of respects. In particular, no proper accounting was made for the large number of vials of morphine and pethidine which had been supplied to the respondent over the period of the investigation.[19] There was a discrepancy between the number of vials missing according to the PSB report [20] and the respondent's reckoning based on his examination of the various drug registers.

50. The respondent said that he obtained the Schedule 8 drugs for these venues through the DBO system and through purchase orders in the name of IA. According to the records relating to the DBO supplies [21] some 310 vials of morphine and 310 vials of pethidine had been supplied to the respondent through the DBO system between the years 1998-2003. When the registers were examined and the balance of the Schedule 8 drugs were seized by investigators, 200 vials were removed. The investigation report indicates that many vials could not be accounted for through the drug register. The respondent asserted that he had made a thorough check of the drug register and said [22] that between December 2000 and March 2003: "...only 16 morphine 30 mg ampoules...and 6 pethidine 100 mg ampoules...remain unaccounted for." 51. The respondent said that he was "troubled" by the documents which showed the amounts of morphine and pethidine allocated to him through the DBO system because he was of the view that after analysis of the drug registers the total numbers dispensed to him were less. [23] However, he had no independent recollection of how many were dispensed to him and had no system of knowing how much had been dispensed other than by reference to the various drug registers.

52. The peer reviewer, Dr Gordian Fulde, said that from very early in medical training, doctors are told about the importance of maintaining a drug register to show a: "trail of accountability" [24] for restricted substances. He said that accountability is expected of every practitioner.

53. The respondent did not dispute that his maintenance of the drug registers was inadequate. He said that he knew that a register had to be kept but had never been shown how to keep one and pointed out that in his course of practice before he commenced the business of IA, he worked in circumstances where other people took the responsibility for maintaining the record. After IA contracted to provide medical services to sporting venues in 1996, the respondent said that he did not turn his mind to setting up a protocol for maintaining the drug registers. He said: "simply running a business and not being able to be done at the time and relying on the people that we have working for us to all understand these things." [25] The respondent said that he did not instruct each of his staff about keeping the drug registers but had administrative staff who went to the venues to supervise staff and: "...they understood the drug registers were there and how they were to be used". [26]

54. After setting up the drug registers (the copies before the Tribunal and those inspected by the PSB commence only in 2000), he took no further role in the management of or the disposition of the Schedule 8 drugs, gave no particular instruction to the staff about maintaining a drug register at the particular sporting venues nor did he conduct any audit or inspection of the registers until the investigation. The respondent said that in 2000 he appointed a medical director, Dr Mark Gillette, who was asked to write drug and medical protocols but he was not asked to review or audit the drug registers.

55. In 2001 the respondent wrote to the PSB [27] and set out the protocols for the services he supplied at the sporting venues. He wrote that the medical structure was overseen by Dr Gillette and set out in the letter the protocol for maintaining the drug registers which included having two signatures to each removal of a drug from the supply and the supply counted each shift. The letter went on to indicate that the two people signing a withdrawal from the supply of drugs would be either a doctor and a nurse or two nurses. Even though on some occasions, the respondent was the doctor who administered the drugs removed from the store of drugs at the various sporting venue, none of these protocols was followed.

56. It is clear that the respondent knew well enough what was required to keep a proper register of Schedule 8 drugs, but took no step to ensure that those which were his responsibility were kept in accordance with his assertion to the PSB in the letter of 2001 or at all. In the result drugs of addiction could not be accounted for and the respondent had no idea what had happened to them. He said that he felt sure that his employees had not acted dishonestly in relation to them. Given the scant attention paid by the respondent to his legal responsibility for keeping Schedule 8 drugs of addiction, the Tribunal takes little comfort from his confidence in his employees.

57. At the conclusion of the PSB investigation the respondent surrendered his authority to prescribe or otherwise deal with Schedule 8 drugs.

Discussion Cocaine

58. It was not asserted that the respondent is "impaired" in the sense that he presently is addicted to cocaine or presently has a substance abuse problem. The respondent said that he had not used cocaine since 2002. However, his evidence that, after using cocaine once at a party, he returned to Australia and embarked on a process of dishonestly using his position to obtain a large amount of cocaine by writing prescriptions leaves the Tribunal concerned that he remains vulnerable to drug use. The Tribunal notes that in the period 1998 to 2003 the respondent obtained 80 grams of pharmaceutical grade cocaine in this way, although it accepts that he had not used any of the last 20 grams dispensed to him.

59. Although the respondent believes himself to fall within a small proportion of people who can use cocaine without risk of relapse, the Tribunal does not necessarily share his confidence given that he has made no effort to understand the processes which led him to be under such pressure that he resorted to its use, why the measures he put in place in 2001 to stop using failed him in 2003 and the factors which may lead to a relapse and, thus, is of the view that he remains vulnerable.

60. The conduct of the respondent in using cocaine is, in the view of the Tribunal, exacerbated by his dishonest misuse of prescribing system to procure the drugs for his own use. Drug Register

61. The respondent conceded that his failure to keep a proper drug register represented a significant failure to discharge his professional responsibilities.[28] That the register was incompetently maintained is made worse by the fact that even on his reckoning, at least some 21 ampoules of Schedule 8 drugs are unable to accounted for.

Doctors Bag Orders

62. It appears to the Tribunal that, in relation to this particular of the complaint, the respondent paid scant, if any attention, to the legal requirements for his participation in the DBO scheme. In this instance, and in the case of other particulars of the complaint, the respondent seemed content to abrogate his profession responsibility to another person, for example, a pharmacist.

63. The same situation occurred, according to the respondent, when he was obtaining drugs to take overseas and was told by the pharmacist to put the name of a crew member on the prescription. Despite, in his own words being "troubled" by the proposition, the respondent nevertheless relied on that suggestion without taking the time or making the effort to satisfy himself that he was acting within the law.

64. If the respondent did not know the correct way in which to write a prescription for the purposes of taking the drugs overseas he ought to have made his own enquiries. The Tribunal is of the view that to simply rely on the assertions of a pharmacist shows a lack of professional judgment.

65. The Tribunal formed the view that the respondent's knowledge of proper procedures for the management of his practice of medicine fell significantly below that expected of a medical practitioner. That he did not know and made no effort to find out demonstrates a lack of commitment to the important legal aspects of his right to practise.

66. The evidence of the respondent leads the Tribunal to conclude that he regarded the laws and regulations which govern his practice of medicine as a technicality. He referred on a number of occasions to the uniqueness of his practice and that it would not be readily understood by others. He asserted that he was fully involved running the business of IA to explain why he did not know or take care of matters of professional responsibility.

67. The Tribunal is satisfied that the respondent has regarded himself as being somewhat above the mundane need for knowledge of or adherence to the proper conduct of his practice as a doctor. The respondent demonstrated lamentable ignorance of and a disdain for the protocols which applied to the use of the DBO system. If he is to be accepted, this extended to not bothering to read the "Important" notice which appeared on the face of every order book for DBO supplies during the relevant period. He freely accepted the advice of pharmacists on matters directly relating to his proper practice as a doctor including the writing of prescriptions. That he did not know these procedures nor take any step to familiarise himself with them of itself demonstrates a significant lack of knowledge as a medical practitioner, that he, in that parlous state of ignorance was content to accept the advice of a pharmacist shows a lack of judgement. Conclusion

68. This matter concerns sections 36 and 37 of the Medical Practice Act 1992 (the 'Act').

69. Section 36 defines "unsatisfactory professional conduct" to include; (a) Any conduct that demonstrates that the knowledge, skill, judgement 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; (b) Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations; (c) Any other improper or unethical conduct relating to the practice or purported practice of medicine."

Section 37 "For the purposes of this Act, professional misconduct of a registered medical practitioner means unsatisfactory professional 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."

70. By writing prescriptions for cocaine in the name of a person who was never intended to receive the drug, the Tribunal is satisfied that the respondent has abused the prescription system. The prescription system reposes significant trust in a medical practitioner. The Tribunal accepts the applicant's submission that the integrity of the system relies on the honesty of those who are permitted to use it. Of course, the use of cocaine by the respondent was frankly illegal and of itself should be the subject of severe censure.

71. Dr Gordian Fulde who reviewed the respondent's conduct as alleged in the complaint expressed "severe disapproval" of the respondent's conduct in relation to these matters.

72. The respondent's conduct, as described in the particulars of the complaint, demonstrates a significant lack of knowledge of important aspects of his practice as a doctor and abandonment of his own judgment. The respondent's judgement and the care he exercised in the practice of medicine fell significantly below that reasonably expected of a practitioner of equivalent training or experience.

73. The conduct of the respondent in dishonestly misusing the prescription system to supply drugs for his own use and in writing prescriptions for patients for whom the drugs were never intended is conduct which in the view of the Tribunal is both improper and unethical. This conduct was not an isolated instance but constituted a continued course of dishonesty over a period of years.

74. In these two regards, the use of cocaine and the abuse of the prescribing system to obtain it for himself, the Tribunal is satisfied to the relevant standard [29] that the practitioner is guilty of professional misconduct. His conduct would be considered repugnant by both the profession and by the public.

75. The Tribunal is satisfied, again to the requisite standard, that in relation to his keeping of an appropriate drug register, that his actions in buying wholesale drugs without the necessary licence and his misuse of the DBO system demonstrated that the respondent lacked appropriate knowledge or skill to discharge those aspects of his practice to the level required of a medical practitioner. His ignorance of the proper use of DBO and his failure to take any proper steps to inform himself provided him with a commercial advantage. In these regards, again being satisfied to the relevant standard, the Tribunal finds that the respondent is guilty of unsatisfactory professional conduct.

76. Section 64 of the Act provides for a range of orders which may be made by the Tribunal.

77. The jurisdiction of the Tribunal is protective not a punitive one.[30] The purpose of disciplinary proceedings is to maintain proper ethical and professional standards to protect the community and also to protect the good standing and reputation of the profession. The object of protecting the public includes deterring the practitioner from repeating his misconduct and deterring others who might be tempted to behave in a similar way. The role of the Tribunal is also to ensure that public and professional colleagues can place their confidence in the practitioner. "One element of deterrence is providing an assurance to the public that serious lapses in the conduct of... practitioners will not be passed over or lightly put aside, but will be appropriately dealt with".[31]

78. The orders of the Tribunal may operate in a number of ways - by preventing the practitioner from practising or by deterring him from repetition of the conduct.32

79. Time has passed since the respondent behaved in the way complained of. A lapse of time can be relevant to the orders made by a Tribunal. However, as Walsh JA said in Ex Part Tziniolis: Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; "Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man."

80. Lapse of time then may be relevant to determine whether the respondent has undergone a reformation of character or whether the conduct complained of was an isolated or passing departure from proper professional standards. [33]

81. Three years have passed since the conduct on which the complaint is based occurred. The respondent says that he no longer uses cocaine. There have been no complaints about the respondent's conduct since that time and there is no challenge to his competence to perform medical services. The respondent said that he has implemented protocols to ensure that professional responsibilities for the keeping of drug registers and the purchase of wholesale drugs are met.

82. The Tribunal does not necessarily accept that, by reason of the protocols he has put in place, the respondent has addressed all of the concerns raised by his conduct.

83. Despite the professional misconduct in the respondent's improper use of the prescription system and his continuing dishonest misuse of prescriptions to obtain drugs to use himself, the Tribunal considers that the protective function of the Tribunal can be exercised without making an order for the deregistration of the respondent.

84. The Tribunal is of the view that his conduct in relation to the misuse of the prescription system is such that he must be reprimanded.

85. The Tribunal finds that the respondent has not fully appreciated the risks to himself of his cocaine use nor has he addressed the possibility of relapse in the face of the pressure of his business. He has not taken steps to inform himself or to take professional advice to arm himself against succumbing to the pressures which led to his wrongdoing in relation to the cocaine.

86. To address this vulnerability, the Tribunal will order that for a period of twelve months, the respondent submit to thrice weekly urinalyses and for that same period he attend a psychiatrist skilled in matters of drug addiction for the purpose of educating himself and gaining sufficient skills to understand the processes of addiction and relapse.

87. The respondent has demonstrated that he is ignorant of important matters necessary to the regulation of the practice of medical practitioners and has made but a cursory attempt to inform himself of those matters.

88. Given the clear flaws in his understanding and application of his professional responsibilities, the Tribunal is of the view that his practice of medicine should be supervised. The Tribunal proposes to order the respondent nominate a supervisor from a list of appropriate practitioners provided by the Medical Board who will meet with the respondent at least monthly to discuss with the respondent the legislative and regulatory responsibilities attendant on his practice as a medical practitioner and to inspect the records and drug registers kept by the respondent from time to time. The supervisor will provide monthly reports to the Medical Board and will also be required to report to the Board any irregularities relating to the conduct of respondent's practice of medicine revealed during the supervision.

89. The respondent is to pay a fine. The measure of the fine should be judged against the seriousness of the conduct. The maximum amount of the fine to be imposed under the section is $27,500. The Tribunal will impose a fine of $15,000.

90. The Tribunal notes that the respondent has agreed to refund $28,000 being the cost of the drugs obtained by him through his misuse of the DBO system.

Orders

Being satisfied that in relation to particulars (i) to (vi) inclusive the respondent is guilty of professional misconduct and in relation to particulars (vii) to (ix) inclusive that the respondent is guilty of unsatisfactory professional conduct, the Tribunal makes the following orders:

1. The respondent be reprimanded;

2. The respondent's practice be supervised by a practitioner nominated by the respondent from a list of suitable practitioners provided to him by the Medical Board. The list is to be provided within twenty-eight [28] days of this order and the respondent must nominate a supervisor within fourteen [14] days of the provision of that list. Failing such nomination by the respondent, the supervisor be a person determined by the New South Wales Medical Board;

3. The supervision will be no less than monthly and will include (but be not limited to) an inspection of records kept in the course of the respondent's practice and any and all drug registers maintained by him and discussion with the supervisor of the various legislative and regulatory requirements attendant on proper medical practice;

4. The supervisor will provide a monthly report to the NSW Medical Board on the fact of the supervision and the matters discussed during the meetings;

5. The supervisor will promptly report to the NSW Medical Board any irregularity in the practice of the respondent revealed during the period of supervision;

6. Any cost associated with the supervision be borne by the respondent;

7. The supervision will be for a period of twelve [12] months from the date of nomination of a supervisor;

8. For a period of twelve [12] months from the date of these orders, the respondent submit to thrice weekly urinalyses for the detection of drug use or some other form of testing acceptable to the New South Wales Medical Board and the respondent will bear the cost of these tests;

9. For a period of twelve [12] months from the date of these orders, the respondent will attend on a psychiatrist specialising in matters of Drug and Alcohol addiction to discuss issues of drug addiction and relapse prevention strategies;

10. Within twenty-eight [28] days of the making of these orders, the respondent will nominate a psychiatrist from a list provided by the NSW Medical Board. The list is to be provided within twenty-eight [28] days of this order and the respondent must nominate a psychiatrist within fourteen [14] days of the provision of that list. Failing such nomination by the respondent, the psychiatrist will be a person determined by the New South Wales Medical Board;

11. The number of attendances will be determined by the psychiatrist nominated who will report the fact of the attendances to the New South Wales Medical Board;

12. The cost of attendance on the psychiatrist will be borne by the respondent.

13. The respondent pay a fine of $15,000 within two [2] months of 4th April 2007;

14. The respondent pay the applicant's costs of and incidental to these proceedings

Endnotes 1 Tab 1 of Exhibit 1 2 Exhibit A(2), tab 31 3 Exhibit A(2) tab 32 4 Dr Gordian Fulde, report 15th October 2004. Exhibit A(1) tab 11 5 Statement 16th January 2005, Ex A1 tab 16 6 Drug Register for Sydney Football Stadium, 3.4.01 Exhibit A(2) tab 22 7 Statement 1st July 2006 paragraph 35 8 Statement 16th January 2005 page 5 9 Statement 1st July 2006, Ex 1, tab 1 10 transcript page 93 line 15 ff 11 Statement respondent, 3rd April 2003, tab 14, Exhibit A(1) 12 transcript pages 69-71 13 Exhibit 1 Tab 4 14 transcript page 107 line 45 15 transcript page 108 line 2 16 transcript page 116 line 40 ff 17 Statement Malek and Statement Reyes, Exhibit A(1) tabs 8 and 9 18 1st July 2006 paragraph 33 19 Report of Investigation of Pharmaceutical Services Branch, Exhibit A(1) tab 2 20 Exhibit A(1) tab 6 21 Exhibit A(1) tab 21 22 Statement 16th January 2005 page 7 23 transcript page 110 line11 ff 24 transcript page 18 line11 25 transcript page 36 line 40 26 transcript page 39 line 7 27 Exhibit A(2) tab 28 28 transcript page 112 line 37 29 Briginshaw v Briginshaw (1938) 60 CLR 336. That is that the Tribunal must be comfortably satisfied on the balance of probabilities but that having regard to the serious nature of the charge and the consequences, the satisfaction cannot be produced by "inexact proofs, indefinite testimony or indirect references". 30 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637D and F 31 Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441B, 471B. Also Craig v Medical Board of South Australia [2001] SASC 169 at [45]-[47]. 32 NSW Bar Association v Meakes [2006] NSWCA 340 at [114] per Basten JA. 33 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637.

ANNEXURE 'A' TO THE REASONS FOR DETERMINATION OF THE MEDICAL TRIBUNAL OF NSW 40007 OF 2006 HCCC v DR Adrian Cohen

COMPLAINT

Medical Practice Act, 1992

The Chairperson: NSW Medical Tribunal John Madison Tower Goulburn Street SYDNEY NSW 2000

The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney, NSW, having consulted with the NSW Medical Board in accordance with s51(1) of the Medical Practice Act, 1992 (the Act)

HEREBY COMPLAINS THAT:

Dr Adrian Cohen, care of Tress Cox Lawyers, Level 20, 135 King Street, Sydney, New South Wales ("the Practitioner"), being a medical practitioner registered under the Act:

COMPLAINT

has been guilty of unsatisfactory professional conduct within the meaning of s36 of the Act and/or professional misconduct within the meaning of s37 of the Act in that:

i) he has 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) he has engaged in improper or unethical conduct relating to the practice of medicine.

PARTICULARS

1: On 20 June 2000, he did obtain for his own use 20 grams of cocaine hydrochloride by issuing a prescription in the name "A" for drugs including 20 grams of cocaine hydrochloride.

2. On 4 June 2001, Dr Cohen he did issue a prescription in the name "B" prescribing codeine: (i) otherwise than for medical treatment; and/or (ii) in a quantity, or for a purpose, that does not accord with the recognized therapeutic standard of what is appropriate in the circumstances, contrary to the provisions of the Poisons and Therapeutic Goods Regulation, 1994.

3. On 30 August 2001, he did obtain for his own use 20 grams of cocaine hydrochloride by issuing a prescription in the name "C" for drugs including 20 grams of cocaine hydrochloride.

4. On 4 February 2003, he did attempt to obtain for his own use 20 grams of cocaine hydrochloride by issuing a prescription in the name "C" for drugs, including 20 grams of cocaine hydrochloride.

5. Apart from the prescriptions referred to above, he did, on other occasions between 1998 and 2003, Dr Cohen did improperly obtain cocaine hydrochloride from pharmacists for his own use.

6. Between 1998 and 2003, did use cocaine.

7. Between June 1997 and February 2003, Dr Cohen improperly filled, every month, a Doctor's Bag Order (thereby obtaining approximately 7,446 units of pharmaceuticals) which he subsequently supplied to a number of medical facilities over which he had control in the course of his practice as a medical practitioner.

8. Being the Director of Immediate Assistants Pty Limited did contravene the provisions of the Poisons and Therapeutic Goods Act, 1966 and Regulations by procuring wholesale quantities of medical equipment and pharmaceuticals, knowing that the company did not hold a wholesalers licence.

9. Between 1999 and 2003, Dr Cohen did fail to accurately and appropriately maintain drug registers kept under his care and control and located at the Sydney Cricket Ground, Stadium Australia, Sydney Football Stadium/Cricket Ground, Castle Hill and at his home surgery/office.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.