Health Care Complaints Commission v Brittain [2019] NSWCATOD 161

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Brittain [2019] NSWCATOD 161 Hearing dates: 25, 26 June 2018 Date of orders: 16 October 2019 Decision date: 16 October 2019 Jurisdiction: Occupational Division Before: Craig QC, ADCJ, Principal Member Dr S Cowap, Senior Member Dr G Dore, Senior Member R Kusuma, General Member Decision: 1. The Respondent Dr Nicholas Brittain be and is hereby reprimanded under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW).

2. The conditions set out in the Schedule headed "Health Care Complaints Commission v Dr Nicholas Brittain – Conditions" (the Conditions) be imposed on the Respondent's registration and be operative 28 days after the making of these Orders.

3. The Conditions may be altered, varied or removed at the discretion of the Medical Council of New South Wales and the Council is the appropriate review body for the purposes of Div 8 of Pt 8 of the Health Practitioner Regulation National Law (NSW).

4. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply while Dr Nicholas Brittain's principal place of practice is anywhere in Australia, other than in New South Wales, so that a review of the Conditions can be conducted in that circumstance by the Medical Board of Australia.

5. Order that the Respondent pay the Applicant's costs of these proceedings as agreed or assessed. Catchwords: PROFESSIONS AND TRADES – health care professional – medical practitioner – unsatisfactory professional conduct – professional misconduct – appropriate protective orders – conditions on registration Legislation Cited: Health Care Complaints Commission Act 1993 Health Practitioner Regulation National Law (NSW) Health Practitioner Regulation (NSW) Regulation 2010 Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Bronze Wing International Pty Limited v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission [2017] NSWCA 186 Dawson v Law Society of New South Wales [1989] NSWCA 58 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 Health Care Complaints Commission v CSM [2018] NSWSC 102 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Kwan [2014] NSWCATOD 72 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Ly [2010] NSWMT 20 Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Suri [2016] NSWCATOD 54 Health Care Complaints Commission v Thomas [2015] NSWCATOD 60 Health Care Complaints Commission v Wingate [2007] NSWCA 326 Lee v Health Care Complaints Commission [2012] NSWCA 80 NSW Bar Association v Meakes [2006] NSWCA 340 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Nicholas Brittain (Respondent) Representation: Counsel: A Britt (Applicant) R Mathur (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2017/00386641 Publication restriction: Under cl 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), an order prohibiting disclosure to any person or entity of the name of any of the patients identified in the annexure to the Application filed on 21 December 2017.

REASONS FOR DECISION 1. By an Application filed on 21 December 2017, the Health Care Complaints Commission (the Commission) seeks disciplinary findings and orders against Dr Nicholas Brittain pursuant to the Health Practitioner Regulation National Law (NSW) (the National Law). The Complaint attached to the Application identifies three separate complaints made against Dr Brittain arising from the prescription of medication listed on the Poisons List under the Poisons and Therapeutic Goods Act 1966 (NSW) (the PTG Act) for seven different patients over differing periods between January 2009 and August 2015. The circumstances in which prescriptions were provided for that medication to each patient is said to constitute unsatisfactory professional conduct within the meaning of s 139B(1)(a) and (b) of the National Law. That is the first complaint. The second complaint, also alleging unsatisfactory professional conduct, alleges failure on the part of Dr Brittain to maintain adequate medical records for each of the seven patients nominated in the Complaint, in contravention of the Health Practitioner Regulation (NSW) Regulation 2010 (the Regulation). 2. The final complaint asserts that by reason of the number of instances of unsatisfactory professional conduct on the part of Dr Brittain and the serious nature of that conduct, those instances, when considered together, constitute professional misconduct within the meaning of s 139E of the National Law. 3. Without diminishing the significance of complaints 2 and 3, it is convenient to refer to the first complaint as the primary complaint. As will be seen, there are some 11 particulars provided in respect of that complaint, identifying their application to particular patients. Not each particular relates to all patients. Complaint 2 relates to all seven patients while complaint 3 turns upon the findings made in respect of complaints 1 and 2. 4. By his Reply dated 4 May 2018 to the Commission's Application, Dr Brittain has admitted each complaint and admitted each particular of each complaint. He has accepted, in terms, both in that Reply and in a statement of evidence tendered to the Tribunal, that his conduct the subject of the Complaint constitutes both unsatisfactory professional conduct and professional misconduct. 5. Given Dr Brittain's comprehensive admissions and that there is no factual contest between the parties, they were content for us to address both the question of breach and the question of appropriate protective orders at the one hearing, without the need to conduct the proceedings in two stages. We accept that to be an appropriate course for us to adopt in this case. 6. For the reasons set out below, we have decided that Dr Brittain is guilty of both unsatisfactory professional conduct and professional misconduct. We have also determined for the reasons later given that he should be reprimanded and that other protective orders should be made.

Background 1. Dr Brittain graduated from the University of Newcastle in 1984 with an Honours Degree in Medical Science and a Bachelor of Medicine Degree. He was first registered as a medical practitioner on 7 March 1984. Upon registration, he worked as a resident medical officer at Westmead Hospital between 1984 and 1986. 2. In 1987 he spent a year working in the United Kingdom, focusing upon orthopaedics. Upon his return to Australia in 1988, he worked as a resident medical officer at Sutherland Hospital and in 1989 obtained a Diploma in Obstetrics through the Royal Australian College of Obstetricians and Gynaecologists. 3. Between 1990 and 1992, Dr Brittain worked as a sports medicine practitioner, being awarded a Certificate of Sports Medicine from the Royal Australian College of General Practitioners and the Australian Sports Medicine Federation in 1991. In 1995 he became a Fellow of the Royal Australian College of General Practitioners. 4. In 1992, Dr Brittain became the part owner of a general practice at Barden Ridge and subsequently the sole owner of that practice until it was sold to an organisation that had acquired a number of medical practices, continuing to engage the former proprietors of those practices as contractors. The acquiring entity was known as Primary Health Care, with whom he continued to work at the Caringbah Medical and Dental Centre as a general practitioner until 2014. Dr Brittain left that practice and in 2015 commenced to work as a general practitioner at medical centres operated by IPN Medical Centres, principally at Edgecliff but also at centres in Randwick and Brookvale. Currently, he works only at the Randwick Centre.

The Hearing 1. At the hearing before us, the Commission tendered three folders of documents that included patient records for each of the seven patients that were the subject of complaint, copy prescriptions written by Dr Brittain for a number of patients, various guidelines directed to the prescription of drugs under the PTG Act, a report and documents pertaining to the investigation of the complaints against Dr Brittain, as well as the expert report prepared by Dr Emery Kertesz dated 30 January 2007. He was retained by the Commission for the purpose of assessing the complaints made against Dr Brittain. Dr Kertesz is a highly qualified general practitioner who, apart from practising as such, has held and continues to hold a number of teaching appointments and is an examiner for the Royal Australian College of General Practitioners. Dr Kertesz was not required to attend the hearing for the purpose of cross examination upon his report. 2. Dr Brittain tendered a detailed statement of evidence and was called to be cross examined on that evidence. He also tendered a report from Dr Christopher Lennings, a clinical psychologist to whom Dr Brittain was referred for assessment. Dr Lennings was also called to be cross examined upon his report. In addition, the material tendered by Dr Brittain included some eleven references received from other medical practitioners, healthcare professionals and patients. None of the referees was required for cross examination.

The Tribunal's Approach 1. Before turning to the principal parts of our reasons, it is appropriate to identify briefly the approach that we must take in addressing the complaints made by the Commission. Under s 149 of the National Law, the Tribunal may exercise any disciplinary powers conferred on it by Subdiv 6 of Div 3 of Pt 8 (ss 149 to 149E) if: 1. it finds the subject matter of a complaint against a practitioner to have been proved; or 2. the practitioner admits to it in writing to the Tribunal. 1. As we have already recorded, Dr Brittain has, both in his Reply to the Application and in his Statement of Evidence, made fulsome admissions to each of the complaints and the particulars of them. We also take into account the considerable volume of documentary evidence that has been tendered as well as the plaintiff's oral evidence, the evidence of Dr Kertesz and the evidence of Dr Lennings. 2. Although the Tribunal is not bound by the rules of evidence when carrying out its inquiry function under the National Law, we accept that the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 and 362 should guide our approach in fact finding, conformably with the observations of the Court of Appeal in Bronze Wing International Pty Limited v SafeWork NSW [2017] NSWCA 41 at [127]. Consequently, we have taken into account the seriousness of the allegations made by the Commission as well as the gravity of the consequences of the protective orders that the Tribunal is empowered to make. 3. Clearly, the fact that Dr Brittain has admitted the complaints and the particulars relied upon by the Commission, renders the task of fact finding considerably easier than would be the case had there been a challenge to the evidence. Nonetheless, we are not relieved of the burden of finding whether each complaint has been established, founded upon the particulars provided in support of the complaints. Only if we find them to be established and that the facts found justify a finding that the conduct of Dr Brittain constitutes either unsatisfactory professional conduct or professional misconduct do we then proceed to consider what, if any, protective orders can and should be made under the National Law.

Findings based on the admissions and evidence 1. As the Commission submitted, we can reasonably be satisfied as to the facts concerning consultations with the seven patients identified in the Complaint and the prescription of medication for each patient from the admissions made by Dr Brittain. Neither in his written statement to us nor in his oral evidence, including that given under cross examination, did Dr Brittain seek to qualify the admissions of fact that he had made in respect of each patient. This included the respective dates of consultation, the nature of the medications prescribed at each consultation and the fact that each of the drugs prescribed on those occasions were of the kind identified in the Schedule annexed to the application as being drugs that were, at the relevant times, drugs listed on the Poisons List pursuant to s 8 of the PTG Act. For the purpose of identification, we incorporate by reference into these reasons, Schedules A to G inclusive of the schedules that are appended to the Application filed by the Commission on 21 December 2017. 2. We believe that Dr Brittain's evidence should generally be accepted as his genuine and truthful attempt to address the issues arising from his treatment of the seven patients in question. We also accept that Dr Kertesz was suitably qualified to express opinions as to Dr Brittain's conduct and the manner in which it is appropriately characterised. Further, we accept the evidence of Dr Lennings, although his evidence is relevant to appropriate protective orders rather than the question of characterising the admitted conduct of Dr Brittain. 3. Before turning to address the three complaints, it is appropriate to record that in doing so, the names of patients whose treatment has resulted in a complaint against Dr Brittain have been anonymised by assigning to each patient a pseudonym corresponding with a letter of the alphabet. The name of each patient and the letter assigned to that patient appears in the Schedule to the Application filed on 21 December 2017. In accordance with cl 7 of Sch 5D to the National Law, an order has been made prohibiting the disclosure to any person or entity of the name of any patient listed in that Schedule to the Application. 4. As the first and second complaints allege unsatisfactory conduct on the part of Dr Brittain, it is appropriate to cite the statutory provision identifying conduct of that kind. Section 139B of the National Law relevantly provides: 139B Meaning of 'unsatisfactory professional conduct' of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

Complaint 1 1. The first complaint alleges that Dr Brittain was guilty of unsatisfactory professional conduct under s 139B(1)(a) and (l) in that he has: (i) engaged in conduct that demonstrates the knowledge or judgment possessed, or care exercised, by the practitioner or in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and/or (ii) engaged in improper or unethical conduct related to the practice or purported practice of medicine. The Complaint alleges that each particular justifies an individual finding of unsatisfactory professional conduct. 1. By way of background to the Complaint, it is stated that Dr Brittain practised as a general practitioner at Caringbah Medical Centre in Caringbah between 2011 and 2014 and that between 2015 and 2016, he practised at Edgecliff Medical Centre in Edgecliff. 2. The particulars of the Complaint are then stated in the following terms: "1. The practitioner failed to conduct an appropriate assessment of patients A, B, C, D, E, F and G when he prescribed S8 and S4D medications on the dates and the manner detailed in the schedules to the Complaint. 2. The practitioner prescribed drugs of addiction within the meaning of the Poisons and Therapeutics Goods Act 1966 ("the PTG Act") to patients B, C, D, E, F and G on the dates and in the manner detailed in the schedules to the Complaint where the practitioner had formed, ought to have formed, or ought reasonably to have formed the opinion that each of them was a drug dependant person (within the meaning of section 27 of the PTG Act). 3. The practitioner prescribed drugs of addiction within the meaning of the PTG Act to patients A, B, C, E, F and G on the dates and in the manner detailed in the schedules to this Complaint for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008 ('the PTG Reg'). 4. The practitioner prescribed drugs of addiction within the meaning of the PTG Act to drug dependant patients B, C, D, E, F and G on the dates and in the manner detailed in the schedules to this Complaint without obtaining a proper authority to prescribe from the NSW Ministry of Health, contrary to section 28(3) of the PTG Act. 5. The practitioner prescribed drugs of addiction within the meaning of the PTG Act to patients B, E, F and G on the dates and in the manner detailed in the schedules to this Complaint in circumstances where the quantities prescribed did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 79 of the PTG Reg. 6. The practitioner concurrently prescribed S8 and S4D medications without exercising responsible medical judgment to patients A, B, E, F and G on the dates and in the manner detailed in the schedules to this Complaint. 7. The practitioner failed to make any referrals to a pain physician or drug and alcohol specialist when prescribing drugs of addiction in the care and management of patients A, C, D and E. 8. The practitioner failed to make appropriate and timely referrals for specialist advice and/or assistance when prescribing drugs of addiction in the care and management of Patients B, C, E, F and G. 9. The practitioner failed to actively follow up with a pain physician with respect to patient B, despite writing referral letters to Dr David Gorman on: i. 26 December 2012; ii. 12 November 2013; iii. 18 April 2014; and iv. 25 November 2014. 10. The practitioner failed to act upon specialist advice and/or assistance received from pain medicine specialist Dr Henry Lam with respect to patient F in circumstances where he received a letter from Dr Lam on 20 February 2014 which advised that patient F should 'wean down the Oxycontin as much as possible'. 11. The practitioner failed to act upon specialist advice and/or assistance received from pain medicine specialist Dr Paul Wrigley with respect to patient G in circumstances where he received a letter from Dr Wrigley on 24 September 2012 which advised that the prescribing of oxycodone be rationalised and replaced with a sustained release preparation such as Kapanol and MS Mono (24-hour release morphine)." 1. Schedules A to G annexed to the Complaint identify 12 drugs that, in the language of Dr Kertesz, may have been "mal-prescribed". Dr Kertesz identifies those drugs as follows: "1. Valium aka Diazepam 2. Oxycontin aka Oxycodone slow release 3. Ativan aka Lorazepam 4. Duromine aka Phentermine 5. Endone aka Oxycodone rapid release 6. Physeptone aka Methadone 7. Norspan aka Buprenorphine 8. Xanax aka Alprazolam 9. Tramal aka Tramadol 10. Morphine 11. Fentanyl 12. Temazepam." 1. Dr Kertesz identifies the drugs numbers 1, 3, 9 and 12 in the above list as medication listed in Sch D to the Poisons and Therapeutic Goods Regulation 2008. They are also listed in Sch 4 to the Poisons List. It is convenient to refer to them as "Sch 4D drugs". 2. Those drugs numbered 2, 5, 6, 7, 8, 10 and 11 on the above list are listed in Sch 8 to the Poisons List. Sch 4D drugs are intended for therapeutic use in circumstances that may require management or monitoring and may require evaluation for safety and efficacy. Those drugs listed in Sch 8 are described by Dr Kertesz as being substances and preparations for therapeutic use "which have high potential for abuse and addiction." The possession of those medications without authority is an offence. 3. The particulars given in respect of Complaint 1 identify provisions of both the PTG Act and the Poisons and Therapeutic Goods Regulation 2008 (the PTG Reg) that need to be noticed. First, particular (2) makes reference to the definition of "a drug dependant person" in s 27 of the PTG Act. The definition is as follows: drug dependant person means a person who has acquired as a result of repeated administration of: (a) a drug of addiction, or (b) … an overpowering desire for the continued administration of such a drug. 1. Section 28 of the PTG Act identifies circumstances in which authorisation is required in order to prescribe a Sch 8 drug. Subsection (2) of that section requires that an authority is required under s 29 for the prescription of a "type B drug of addiction" for continuous therapeutic use for a period exceeding two months. Further, under subsection (3) of s 28, an authority is required for the prescription of a "type C drug of addiction" for a person who, in the opinion of the medical practitioner is "a drug dependant person". The Sch 8 drugs to which reference will be made when addressing the drugs prescribed for each patient fall within those statutory provisions. 2. Clause 79 of the PTG Reg is also referenced in the particulars. That clause provides: 79 Quantity and purpose of prescriptions to be appropriate An authorised practitioner must not issue a prescription for a drug of addiction in a quantity, or for a purpose, that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances. Maximum penalty: 20 penalty units or imprisonment for 6 months, or both. 1. Having regard to the admissions made by Dr Brittain and the unchallenged evidence that was tendered, it is unnecessary to record at length all of the consultations had by Dr Brittain with the patients who are the subject of complaint, the medications that were prescribed by them at each consultation and the dosage of each medication. That detail appears in Schedules A to G to the Application, none of which is in contest. 2. However, it is appropriate to summarise the effect of the evidence directed to the first complaint, based upon those schedules, the written responses provided by Dr Brittain to a notice given to him under s 34A(1) of the Health Care Complaints Commission Act 1993, as well as extracts from the expert report of Dr Kertesz that was tendered to us. The principal report of Dr Kertesz of 30 January 2017 is founded upon a number of documents that were separately tendered to us and include the medical records of Dr Brittain as they related to patients A to G, the response of Dr Brittain to the s 34A(1) notice, together with a transcript of a record of interview between Dr Brittain and investigators from the Pharmaceutical Regulatory Unit of the Department of Health conducted on 9 December 2015.

Patient A 1. Patient A was treated by Dr Brittain between December 2009 and December 2012. He was not the patient's primary general practitioner. Over the three-year period in which he consulted Dr Brittain, he was provided with numerous prescriptions for Oxycodone (Sch 8) as well as Diazepam, Ativan, Tramadol and Di-Gesic (all Sch 4D). 2. Patient A presented with lumbar pain and spondylolisthesis, left foot pain and hamstring pain. He also presented with obesity, seeking weight loss as well as reported "persistent and ongoing anxiety". In the course of being treated over the three-year period, Dr Brittain referred the patient for x-ray examination, physiotherapy, a CT brain scan and to Dr D Gorman, a pain management specialist. 3. Dr Brittain accepted that Patient A exhibited drug seeking behaviour "from time to time". He counselled the patient regularly regarding his medication use and symptom management as well as encouraging him to submit to specialist care. He believed the patient's narcotic prescription was being managed by his principal general practitioner and by Dr Gorman. 4. Dr Kertesz was critical of Dr Brittain in the manner in which he treated Patient A, identifying a number of failures that included: 1. failure to properly assess Patient A before prescribing Oxycodone; 2. failure to properly assess the patient before prescribing Diazepam, Ativan, Tramadol and Di-Gesic; 3. failure to establish the therapeutic purpose before prescribing each of those drugs; 4. failure to make an earlier and appropriate referral for Patient A to a specialist practitioner when prescribing the medication identified; 5. prescribing Diazepam and other benzodiazepines in combination with Oxycodone was inappropriate; and 6. failing to recognise drug seeking behaviour on the part of Patient A. 1. While Dr Kertesz did not identify each one of the matters that he criticised as being significantly below the level expected of a practitioner of an equivalent level of training and experience as Dr Brittain, the cumulative effect of those criticisms would appear to be that the standard of care given to Patient A by Dr Brittain was significantly below the level expected of a practitioner of an equivalent level of training and experience. We accept that characterisation of Dr Brittain's conduct as appropriate.

Patient B 1. Patient B was treated by Dr Brittain between December 2012 and August 2015. During that period Patient B was seen by him frequently. On each occasion he prescribed Endone (Sch 8) with an additional prescription at times for either Diazepam, Tramadol or Temazepam (Sch 4D). 2. Patient B was diagnosed by Dr Brittain as having chronic back pain following spinal surgery, subsequent wrist pain and diffuse Large B-Cell Lymphoma. He described the symptoms as being progressive, with pain worsening in 2014. 3. Patient B was referred to Dr D Gorman, pain management specialist, in December 2012. Discussions were had by Dr Brittain with Dr Gorman concerning his recommendations in December 2012, November 2013 and in April, August and November 2014. Patient B was referred by Dr Brittain to other specialists including orthopaedic surgeons, a cardiologist, a haematologist and an oncologist. 4. Dr Brittain accepted that Patient B was drug dependant. He states that he counselled her regarding the medication she was using, means of symptom management and the desirability of staying with a single practitioner for prescription management. He states that he endeavoured to maintain or reduce the dosage of individual medication, encouraging her to submit to specialist care. 5. Dr Kertesz acknowledged that with the diagnosed symptoms of pain, particularly that involving cancer, narcotic medication was appropriate. He also acknowledged that the dosage of Endone prescribed by Dr Brittain was the lowest dose available in that form of medication but was critical of the fact that there were large quantities of low dose Endone being prescribed instead of moderate quantities of a higher dose in that form of medication. His criticism also extended to the following: 1. failure to properly assess Patient B before prescribing either Endone or Oxycontin and Diazepam; 2. failing to make an earlier and appropriate referral of Patient B to a specialist; 3. failure to prescribe the medications identified in appropriate quantities; 4. prescribing Sch 8 drug without authority; 5. failure to recognise and outline the potential side effects and interactions to Patient B before prescribing Diazepam in combination with Endone. 1. Dr Kertesz identified each of the criticisms that he expressed as demonstrating that the standard of care given by Dr Brittain was significantly below the level expected of a practitioner of an equivalent level of training and experience. We accept that to be the appropriate characterisation of Dr Brittain's conduct when treating Patient B.

Patient C 1. Patient C consulted Dr Brittain between February and June 2015. During that period Patient C was given six prescriptions for Methadone at a dose strength of 10mg as well as a single prescription for Oxycodone and a further prescription for Diazepam. 2. The history taken by Dr Brittain was of "extreme, chronic pain in the context of severe exacerbation" of ulceration of his lower legs. Dr Brittain stated that Patient C did not exhibit drug seeking behaviour during any of his consultations with that patient. He states that he prescribed the medication indicated in an endeavour "to balance symptom management", warning the patient of the risks of medication and the need to take it only as prescribed. 3. Although not known to Dr Brittain, Patient C had long term treatment with Methadone commencing in 1982. The criticisms made of Dr Brittain by Dr Kertesz include: 1. a failure to properly and fully assess Patient C before prescribing Methadone and Oxycodone; 2. failing to make an earlier and appropriate referral of Patient C to a specialist when prescribing the medications that he did; 3. failure to establish a therapeutic purpose before prescribing Morphine and Oxycodone; 4. failure to seek authority to prescribe Morphine, a Sch 8 drug, without authority under the PTG Act. 1. Dr Kertesz was critical of the failure of Dr Brittain to explore the history given by Patient C as to prior use of Methadone, given that it was the medication of choice by Patient C. The dosage of that medication prescribed was very low, suggesting that the patient had another source of Methadone necessary to stabilise his condition. For that and the other criticisms he makes, he concluded that the standard of care given by Dr Brittain was significantly below the level expected of a practitioner of an equivalent level of training and experience, attracting strong criticism from Dr Kertesz. 2. We have no difficulty in accepting that the care given by Dr Brittain to Patient C was significantly below the relevant standard.

Patient D 1. Patient D was treated by Dr Brittain between October 2012 and October 2014. In that period of two years the patient was provided with frequent prescriptions for either sublingual tablets or "films" of Buprenorphine (Sch 8), one prescription for Alprazolam (Sch 8) and less frequent prescriptions for Diazepam (Sch 4D). 2. Patient D gave Dr Brittain a history of narcotic dependence and addiction that was secondary to chronic back pain and subsequently to pelvic pain consequent upon a pelvic fracture in November 2013. Dr Brittain stated that he had endeavoured to wean Patient D off narcotic medication by reducing the dosage and transition to other medications over time "with patient engagement". The history obtained indicated that Patient D was a recovering heroin addict and that he had commenced Buprenorphine medication to assist with his withdrawal. In the period between 19 October 2012 and 15 July 2014, Patient D consulted Dr Brittain on about 40 occasions, the last occasion upon which he prescribed Buprenorphine being 15 July 2014. 3. The criticisms made of Dr Brittain by Dr Kertesz are essentially threefold. First, he states that a full assessment and thorough examination of Patient D was not carried out before prescribing Buprenorphine. The need for that examination and assessment was particularly important because of the stated history of heroin addiction before Patient D came to Australia, coupled with his statement that he had already commenced taking that drug. That should have alerted Dr Brittain to investigate the patient "prescribing, prescriber and past history of S8 medication before prescribing the first film". 4. Second, Dr Kertesz was critical of the fact that Patient D, having admitted his addiction due to pain, was not referred by Dr Brittain to an appropriate specialist or specialists, including a pain physician as well as a drug and alcohol physician. He ought also to have considered referring Patient D for treatment in an opioid treatment program. 5. Third, while Dr Kertesz considered that Buprenorphine as well as the dose and quantity prescribed by Dr Brittain was therapeutically appropriate to Patient D's condition, the drug was a restricted drug for which authority to prescribe was required. No such authority was obtained under s 28 of the PTG Act until 13 August 2014, by which time Patient D had ceased to consult Dr Brittain for the purpose of obtaining Buprenorphine. There was only one further consultation after 15 July 2014, namely on 19 October of that year where a prescription for Diazepam was provided to Patient D. 6. On the basis of these criticisms, Dr Kertesz considered that the failings of Dr Brittain reflected in those criticisms was conduct significantly below the level expected of a practitioner of an equivalent level of training and experience. Again, we accept that characterisation of Dr Brittain's conduct, applicable to the accepted facts, as being significantly below the requisite standard.

Patient E 1. Patient E was treated by Dr Brittain between 9 April 2012 and 8 March 2014. For about the first 12 months of consultations, which were frequent, the patient was provided with prescriptions for Alprazolam (Sch 8), with the occasional prescription for Diazepam (Sch 4D). 2. There is a gap in consultations by Patient E between April and October 2013. However, from October 2013 through to March 2014 there were frequent consultations with Dr Brittain at which Patient E was given a prescription on most occasions for Oxycodone (Sch 8), with the occasional prescription for Diazepam, Temazepam or Tramadol (Sch 4D). 3. On first consulting Dr Brittain, Patient E gave a history of chronic back pain. In November 2012 he was referred for mental health assessment and placed on a GP Mental Health Care Plan, completed in February 2014. He was also referred to a psychologist for treatment. 4. In March 2014, Dr Brittain became aware that Patient E was "selling his scripts". As a result, Dr Brittain informed the patient that he would no longer accept him as a patient. 5. As it happened, Patient E had been on a Methadone program since 2008. It is not suggested that Dr Brittain knew that to be the case. He did not enquire of the patient as to whether he was or had been on such a program. 6. The essence of the criticisms made by Dr Kertesz may be summarised as follows: 1. failure to assess Patient E adequately both in taking his history and examining him before prescribing each of the medications earlier identified; 2. failure to refer him to a pain physician or a drug and alcohol physician before prescribing or at least maintaining the level of drug prescription that he did; 3. prescribing significant doses and quantities of a narcotic drug as well as a benzodiazepine at doses and quantities above the recognised guidelines, as a consequence of which they were not prescribed for an appropriate therapeutic purpose; and 4. failure to obtain authority to prescribe Sch 8 drugs when Dr Brittain ought reasonably to have suspected that Patient E was a drug dependant person. 1. Dr Brittain accepted that "from time to time" Patient E did exhibit drug seeking behaviour. He stated that as a result, the "strategies" he employed to address that behaviour, including counselling regarding medication use and symptom management, endeavouring to maintain or reduce the dosage of individual medication or transition to less addictive medication and encouraging the patient to submit to specialist case. That said, Dr Brittain made no reference to any referral he had provided to either a pain physician or to a drug and alcohol physician. 2. Having regard to the criticisms that Dr Kertesz made, he concluded that the standard of care given by Dr Brittain was, in the circumstances, significantly below the level expected of a practitioner of an equivalent level of training and experience. We accept that conclusion as being appropriate.

Patient F 1. Patient F consulted Dr Brittain between 4 March 2013 and 7 August 2015. He had been a patient of the practice in which Dr Brittain worked since January 2011. In the period during which he consulted Dr Brittain, he was provided with numerous prescriptions for Oxycodone, interspersed from time to time with Morphine and Fentanyl prescription (all Sch 8) together with Amitriptyline, an anti-depressant Sch 4D drug. 2. Dr Brittain diagnosed Patient F as suffering chronic right knee and lower back pain following a motor vehicle accident in 1985 in which the patient sustained multiple fractures, including a lower back injury with a prolapsed disc and a degloving injury to the right leg, all of those injuries resulting in the patient undergoing several surgical procedures. The pain that the patient suffered was exacerbated by a further motor accident injury in 2012 that added sciatica to the source of pain and discomfort already suffered. He presented to Dr Brittain with a long history of Oxycodone use. 3. In November 2013, Dr Brittain referred Patient F to Dr H Lam, a pain physician. He was again referred to Dr Lam in February 2015. In March 2013, Dr Brittain determined from enquiry that Patient F was not a "doctor shopper". He was unaware that in 2014 the patient was receiving treatment at the St George Opioid Treatment Program under the care of another medical practitioner. 4. In February 2014, Dr Lam recommended a trial of Ketamine for 2-4 weeks to allow a reduction in the dosage of Oxycontin prescribed for Patient F. Dr Brittain considered that the patient had developed a tolerance for that narcotic. 5. When Dr Brittain relocated to work at the Edgecliff Medical Centre, Patient F travelled to consult him at that location. Between February and August 2015 Patient F attended more than 30 appointments with Dr Brittain who continued to prescribe Oxycodone, Morphine and Fentanyl patches concurrently. Following the referral of Patient F to Dr Lam in February 2015, Dr Lam stated that he was supportive of the "current medication regime of Oxycontin, MS Contin, Lyrica at night and Mobic." 6. In August 2015, Dr Brittain learned that Patient F was "selling scripts" for medication prescribed by Dr Brittain. He thereupon informed Patient F that he would no longer treat him. 7. The criticisms made by Dr Kertesz of Patient F's management and treatment by Dr Brittain fell into familiar categories. They included: 1. failure to properly assess Patient F before prescribing the medications to which earlier reference has been made; 2. failure to make an earlier and appropriate referral for Patient F and, when referred to Dr Lam, did not appear to trial the recommendation made by the latter for reduction in the dosage of Oxycontin by use of Ketamine although it appears that upon the second referral to Dr Lam in February 2015, Dr Lam supported the medication regime then being prescribed for Patient F by Dr Brittain; 3. failure to establish the appropriate therapeutic purpose before prescribing the medications identified at the dose and in the quantities that were prescribed; and 4. failure to obtain an authority under the PTG Act for prescription of Sch 8 drugs when Dr Brittain ought reasonably to have suspected that Patient F was a drug dependant person. 1. As a consequence of those criticisms, Dr Kertesz concluded that the standard of care given by Dr Brittain was, in the circumstances, significantly below the level expected of a practitioner of an equivalent level of training and experience. Once again, we accept that conclusion.

Patient G 1. Patient G was a long-term patient of Dr Brittain, having consulted with him between January 2009 and January 2015. In that period, Dr Brittain frequently provided prescriptions for Oxycodone (Sch 8), a single prescription for five Fentanyl patches (Sch 8), interspersed with prescriptions for Diazepam and Temazepam (Sch 4). Dr Brittain was one of a number of doctors who treated the patient at the Caringbah Medical Centre. 2. Patient G was diagnosed with a chronic lower back pain and sacroiliac joint pain following a lumbar/sacral strain suffered at work in 2008, with a subsequent relapse and associated musculoskeletal and neuropathic pain. Over the following years, Patient G underwent extensive procedures for rehabilitation involving referral to pain specialists, an occupational physician, allied health practitioners and work rehabilitation providers. He also underwent blood, neurological and musculoskeletal testing and assessment. He was seen by two spinal surgeons and was administered a number of spinal injections without resolution of his lumbar/sacral pain. He was reviewed by a rheumatologist as well as a sports physician. Investigative procedures included MRI, CT, bone scans. He attended a pain clinic conducted by Dr Gorman at the St George Hospital Pain Clinic as well as the Pain Management and Research Institute at Royal North Shore Hospital. Dr Brittain was responsible for a number of these referrals and aware of all of them. 3. The clinical records of Dr Brittain also identified the preparation of a GP Mental Health Assessment Plan together with a referral to psychologists. According to Patient G, none of the external referrals and none of the procedures that he had undergone alleviated the pain that he suffered. In February 2010, Dr Brittain had sought approval from the Department of Health to prescribe 30mg of Endone (Oxycodone) in order to provide pain relief to the patient. His application was rejected. However, Dr Brittain continued to prescribe the Sch 8 drug until 12 November 2012. 4. Dr Brittain accepts that he did not enquire as to whether Patient G was participating in an opioid treatment program. Nor did he follow a recommendation by one of the pain specialists to which the patient was referred. 5. The criticisms directed to Dr Brittain's management of Patient G are by now familiar. They include: 1. his failure to assess Patient G, properly and fully, before prescribing the medications earlier described; 2. failure to make an appropriate referral or to confirm appointments made and kept with specialists while continuing to prescribe the medications identified; 3. failure to identify the appropriate therapeutic purpose before prescribing the medication earlier identified, individually and in combination; and 4. prescribing Sch 8 drugs for Patient G without the authority so to do under the PTG Act; and 5. failing to recognise and outline potential side effects and interactions to Patient G before prescribing benzodiazepine medication with the Sch 8 drug also prescribed. 1. Having regard to those criticisms, Dr Kertesz concluded that the standard of care given by Dr Brittain to Patient G was, in the circumstances, significantly below the level expected of a practitioner of an equivalent level of training and experience. Again, we accept that conclusion as appropriate to Patient G.

Summary in respect of Complaint 1 1. The synthesis of evidence we have provided identifies failures on the part of Dr Brittain to assess patients, fully and appropriately, before prescribing the medications that he did; the 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. 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. 2. In the case of each patient, we have accepted the unchallenged evidence of Dr Kertesz. Upon the evidence tendered in respect of each of Patients A to G, we accept and adopt the conclusions of Dr Kertesz that the standard of care provided by Dr Brittain was significantly below that expected of a practitioner of an equivalent level of training and experience. On that basis, the conduct that is the subject of the particulars provided of Complaint 1 demonstrates that Dr Brittain is guilty of unsatisfactory professional conduct. 3. Complaint 1 is therefore established.

Complaint 2 1. This complaint alleges unsatisfactory professional conduct in that the practitioner contravened Pt 4, cl 7 and Sch 2 of the Regulation, being the applicable Regulation at the time of the impugned conduct. Particulars of the complaint are stated as follows: "1. The practitioner's medical records with respect to Patient A, B, C, D, E, F and/or G were inadequate in that he failed to record: (a) information relevant to his assessment, diagnosis and treatment progress of the patient at each visit; (b) particulars of any clinical opinion reached by the practitioner; (c) particulars of advice and/or information given to the patient; (d) plans of treatment for the patient. 2. The practitioner failed to keep medical records containing adequate information that would enable another medical practitioner to carry on the management of Patients A, B, C, D, E, F and/or G." 1. As we have earlier recorded, this complaint is admitted by Dr Brittain. Clause 7(1) of the Regulation requires that a medical practitioner must, in accordance with Pt 4 of the Regulation and Sch 2 "make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner". 2. Schedule 2 to the HP Regulation relevantly provides: "1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following: (a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical information of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to medical treatment (including any medical or surgical procedure) proposed by the medical practitioner who treats the patient must be kept as part of a record relating to that patient. 1A … 2 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment. 3 Form of records (1) An abbreviation or shorthand expression may be used in a record only if the abbreviation or expression is generally understood in the medical profession in the context of the patient's case or generally understood in the broader medical community. (2) Each entry in a record must be dated and must identify clearly the person who made the entries. (3) A record may be made and kept in the form of a computer database or other electronic form, but only if it is capable of being printed on paper." 1. By way of general observation, Dr Kertesz described Dr Brittain's patient records as containing limited information about patient background, treatment plan, a prescribing regime and the condition requiring treatment at each consultation. Having examined the records for each of Patients A to G, Dr Kertesz commented upon each of them in almost identical terms. He described Dr Brittain's notes, where recorded, as being "sparse and terse". He added, in each case, that numerous entries simply recorded the prescribing of medication and printing of prescriptions, including both Sch 8 narcotic medications and, where prescribed, benzodiazepines. In each case, Dr Kertesz described the initial consultation notes as being "significantly lacking in items of history, examination, tests, diagnoses and management". Those records having been tendered in evidence before us, we accept the description assigned to them by Dr Kertesz as being both correct in point of fact and appropriate in point criticism. 2. While Dr Kertesz expressed the opinion that the notes did not comply with recommendations made by the Royal Australian College of General Practitioners pertaining to medical notes or records, we have not focused upon that requirement, given that Complaint 2 is directed to breach of the Regulation. That said, we are satisfied that when applying the provisions of that Regulation, particularly having regard to the requirements found in Sch 2, the notes fall well short of the requirements there stated. The records do not reflect an assessment and diagnosis of each patient at each visit; they do not record the clinical opinion reached by Dr Brittain at each visit; they do not record the advice given to the patient and, in the main, they do not identify plans of future treatment for each patient. Significantly, they do not meet the requirements of cl 2(2) of Sch 2 in that they do not record information that is sufficient to allow another practitioner to continue management of that patient. 3. Dr Brittain did not seek to excuse his failure to provide and keep appropriate records. His explanation, which generally related to records of patients that he saw when working in the Caringbah Practice, was that almost always he had a significant number of patients waiting to see him on a given day, some of who were waiting for some considerable time, and for that reason sought to save time by keeping to a minimum the time taken to keep an appropriate record of the patient's consultation on that day. While we hear the explanation, it provides no excuse for Dr Brittain's failure in this regard, given the clear requirements of the Regulation and the purpose served by complying with those requirements. 4. In the case of each patient, Dr Kertesz expressed the opinion that the "poor quality" of note keeping by Dr Brittain reflected a standard of care that was significantly below the level expected of a practitioner of an equivalent level of training and experience. We agree and adopt that opinion as being our conclusion in respect of the matters alleged in Complaint 2. As a consequence, Dr Brittain is guilty of unsatisfactory professional conduct. 5. Complaint 2 is therefore established.

Improper and unethical conduct 1. We have earlier quoted those provisions of s 139B(1) of the National Law that have relevance to the complaints made in these proceedings. The subsection identifies conduct that can constitute unsatisfactory professional conduct. That conduct includes "improper" or "unethical" conduct relating to the practice of a practitioner's profession: par (l) of subsection (1). Conduct alleged in both Complaints 1 and 2 is alleged to engage that provision. Dr Brittain has conceded that allegation. 2. There is no judicial statement that is universally applicable to identify the meaning of the phrase "improper or unethical conduct". Those words should be given their ordinary meaning, having regard to the context in which the phrase is used. Dr Brittain's admission relieves us of examining the many cases in which the phrase has been considered. It suffices for present purposes to observe that conduct not in conformity with standards of professional conduct and practice should appropriately be deemed "improper" (Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 at [40]-[41]). 3. In the present case, conduct engaging that description is exemplified by the failure of Dr Brittain to seek approval to prescribe drugs of addiction in circumstances that clearly engaged the provisions of s 28 of the PTG Act. Indeed, his persistence in prescribing such medication for Patient G when the permission sought was denied should properly be regarded as both improper and unethical. 4. Having regard to the admissions made and the conduct that lies behind that admission, we are satisfied that in respect of both Complaints 1 and 2, the conduct of Dr Brittain also engages the provisions of s 139B(1)(l) such that his conduct was both improper and unethical. That finding provides a second basis upon which to find that Complaints 1 and 2 are established, namely that in both contexts he is guilty of unsatisfactory professional conduct.

Complaint 3 1. This complaint alleges professional misconduct under s 139E of the National Law. That section provides: "139E Meaning of 'professional misconduct' [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration." 1. Both limbs of the definition are sought to be engaged by Complaint 3. The particulars of the complaint are expressed as follows: "1. Particulars 2, 3, 4, 5 and 6 of Complaint One are relied upon and repeated individually; or 2. Complaints One and Two and the particulars therein are repeated and relied upon cumulatively." 1. By his Reply to the Application, Dr Brittain has not only admitted that he is guilty of professional misconduct but he has also admitted each of the two particulars stated in support of Complaint 3. 2. In the context of particular 1, the substance of the Commission's reliance upon the particulars to Complaint 1 is threefold. First, it asserts that the circumstances pertaining to Patients B, C, D E, F and G were such that Dr Brittain ought reasonably to have formed the opinion that each of them was a drug dependant person within the meaning of s 27 of the PTG Act. Not only did Dr Brittain admit that particular in his Reply, the facts support the admission. The fact that each such patient appeared to identify the drug of choice, coupled with the frequency of consultations at which repeat prescriptions for that drug were obtained, found that support. 3. Second, except in the case of Patient D, the evidence establishes the drugs of addiction or Sch 8 drugs were prescribed for each of the other six patients in dose, quantity or in combination with other drugs, particularly benzodiazepines, that do not accord with the recognised therapeutic standards that, in the circumstances, were appropriate. The quantities and circumstances addressing that particular of Complaint 1 have been identified in the evidence of Dr Kertesz. That evidence is, in turn, founded upon the records tendered and summarised in tabular form in Schedules A to G to the Application filed on 21 December 2017. 4. Third, Dr Brittain prescribed drugs of addiction for Patients B, C, D, E, F and G without obtaining the authority required by s 28(3) of the PTG Act. Apart from Dr Brittain's admission, the evidence is consistent with that admission. 5. There can be no doubt that over-prescribing medication or prescribing medication without first obtaining the appropriate authority, where such authority is required, can amount to conduct that in itself constitutes professional misconduct (Health Care Complaints Commission v Kwan [2014] NSWCATOD 72 at [28]-[29]). As was observed by this Tribunal in Health Care Complaints Commission v Suri [2016] NSWCATOD 54, conduct of that kind is indicative of a medical practitioner who is unprepared to obey the law concerning the prescription of drugs. In its Decision in that case, the Tribunal stated at [89]: "Medical practitioners are entrusted with the entitlement to prescribe drugs of addiction, but with this entitlement there comes a corresponding duty to obey the law. No matter how naïve or well-intentioned that the respondent might have been, there can be no excuse for deliberately flouting the law, creating a situation where he was administering drugs of addiction to drug addicts or, worse, administering drugs of addiction to persons who became dependent upon them. Although there is no suggestion that the respondent was aware that there was a market for drugs of this kind, and that he may have unwittingly been responsible for the dissemination of these drugs by way of sale by his patients, this is a matter which is well-known to general practitioners, especially those who habitually describe Schedule 8 drugs, and something which he should have born in mind while prescribing to his patients." 1. Save for the fact that there is no evidence before us that the drugs prescribed by Dr Brittain caused a patient to become addicted, those remarks of the Tribunal resonate in the present case. Conduct of the kind there discussed can, in an appropriate case, justify suspension or cancellation of registration by reason of a finding of professional misconduct. 2. The Commission submits that by reference to Complaint 1, the failures of Dr Brittain should be summarised as follows: 1. prescribing medications at inappropriate doses and in combinations with other drugs or being medication that was inappropriate having regard to the patient's previous medical condition; 2. improperly and repeatedly prescribing drugs of addiction to patients with histories or propensities towards drug dependence; and 3. ignoring legislative requirements. 1. The Commission submits that those failures identify unsatisfactory professional conduct that is sufficiently serious to warrant a finding of professional misconduct in that, considered cumulatively, it would justify a suspension or cancellation of Dr Brittain's registration (Health Care Complaints Commission v Thomas [2015] NSWCATOD 60 at [86]). The Commission further points to the fact that Complaint 1 addresses prescribing to seven different patients over a six-year period on multiple occasions. Having done so for patients who demonstrated propensities towards drug dependence indicates a lack of insight into the welfare of those patients. The Commission adds that even if some of the seven patients were not actually using the prescriptions provided by Dr Brittain but were selling them, that conduct had the potential to harm many more members of the community. 2. To those failings on the part of Dr Brittain, the Commission adds the gross inadequacy of the medical records kept by him. The failure of Dr Brittain in this regard is no mere technicality. Self-evidently, fulfilment of the requirement for adequate records, containing the information identified in Sch 2 to the Regulation forms an important function for the care of each patient. Not only does the requirement ensure that a busy practitioner has an adequate record of both his or her diagnosis and treatment of a patient on a previous occasion, it also assists in the management of that patient should the original practitioner be unavailable to attend to the patient's further medical needs. 3. As we have indicated, the Commission submits that either individually or cumulatively the seriousness of the complaint both admitted and substantiated, as we have found, constitutes professional misconduct. In that context, the observations of Basten JA (Leeming JA agreeing) in Chen v Health Care Complaints Commission [2017] NSWCA 186 warrant our consideration where at [20] his Honour said: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. 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 practice 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 practice 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." 1. In this case, Particulars 2, 3, 4, 5 and 6 of Complaint 1, are analysed as giving rise to three fundamental failures on the part of Dr Brittain. That analysis accords with that reflected in the submission of the Commission that we have summarised. Each identifies, in itself, conduct of a sufficiently serious nature to justify suspension or cancellation of the registration of Dr Brittain. 2. Next, the particulars of Complaint 3 also allege that Complaints 1 and 2, together with the particulars of those complaints, cumulatively identify instances of unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of Dr Brittain's regulation. We accept the contention as being well-founded in the evidence and consistent with the findings that we have made in respect of Complaints 1 and 2. Dr Brittain has acknowledged as much by his admissions. 3. For these reasons, we determine that the conduct of Dr Brittain is professional misconduct within the meaning of s 139E(a) and (b) of the National Law.

Protective Orders 1. As we have earlier recorded, the parties agreed and we accepted that in the circumstances of this matter, it was unnecessary for there to be a separate hearing directed to appropriate protective orders. Essentially, this course was taken for two reasons. First, Dr Brittain had admitted each of the three complaints as well as the particulars given in respect of those complaints. There was no factual contest between the parties directed to the bases upon which it was open to the Tribunal to sustain the complaint founding the Commission's Application. Second, all of the evidence necessary to be considered for the purpose of determining appropriate protective orders was before us. That included not only the documents tendered by the Commission, including the expert report of Dr Kertesz but also the statements of evidence from Dr Brittain and Dr Lennings, those statements being directed to matters relevant to the content of such orders. The cross examination of both Dr Brittain and Dr Lennings had a similar focus.

The Tribunal's powers 1. Having found that each of the three complaints have been proved, s 149A of the National Law empowers the Tribunal to do any one or more of the following in relation to a practitioner: "(a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal." 1. In addition to exercising any one or more of the heads of power identified in the preceding paragraph, the Tribunal may also impose a fine under s 149B since it has found that Dr Brittain is guilty of both unsatisfactory professional conduct and professional misconduct. However, under s 149B(2)(b), that power cannot be exercised unless we are satisfied "there is no other order, or combination of orders, that is appropriate in the public interest." We do not perceive the need to consider the exercise of that power given, as will become apparent, there are orders that, in combination, are appropriate to be made in the public interest. 2. Further, as we have found that Dr Brittain is guilty of professional misconduct, we may suspend or cancel Dr Brittain's registration in exercise of the power afforded to us by s 149C(1)(b) of the National Law. 3. In giving consideration to the scope of the orders that we may make, we note the observations made by Lonergan J in Health Care Complaints Commission v CSM [2018] NSWSC 102 where her Honour stated at [75]: "It is within the discretion of the Tribunal to make some (or all) of the protective orders available in the legislation in pursuit of the requirements to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered. There is no obligation that a Tribunal make all, or any particular combination of available protective orders." 1. Having identified the scope of powers that we may exercise, it is next necessary to consider the principles that should guide the Tribunal in exercising those powers.

Applicable principles 1. The factors that the Tribunal is required to consider in the exercise of its protective jurisdiction are found in the terms of the National Law, to be discerned either from principles expressed, in terms, in those provisions or those that arise by implication from the subject matter, scope and purpose of that Law (Health Care Complaints Commission v Do [2014] NSWCA 307 at [33]). Those factors include the following: 1. In the exercise of its functions under Subdiv 6 of Div 3 of Pt 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration (ss 3A and 4 of the National Law; Do at [34]). 2. The protection of the health and safety of the public includes: 1. protecting the patients or potential patients of a particular practitioner from the continuing risk of the practitioner's malpractice or incompetence; and 2. protecting the public from the similar misconduct or incompetence of other practitioners; and 3. upholding public confidence in the standards of the profession, which can be achieved by setting and maintaining those standards and where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practice, including those who have been guilty of serious misconduct (Do at [35]; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]). 1. The Tribunal must also exercise its functions having regard to the objectives of the registration, accreditation and complaint scheme established by the National Law including: 1. providing for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; and 2. facilitating access to services provided by health practitioners in accordance with the public interest (s 3(2)(a) and (e) and s 4 of the National Law; Do at [34]). 1. Protective orders serve to denounce misconduct and involve elements of specific and general deterrence, or, to put it positively, serve to encourage practitioners to recognise both the importance of complying with professional standards and the risks of failing to do so (Do at [35] and Prakash at [91]). 2. Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order (Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20], citing Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83]). 1. We have accepted that Dr Brittain's conduct was of a sufficiently serious nature to justify a suspension or cancellation of his registration. However, it does not follow from our determination that suspension or cancellation is the appropriate protective order to make. Why this is so was explained by the Court of Appeal in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. The decision in that case was made by reference to the Medical Practice Act 1992 (now repealed) but the provisions there being considered are sufficiently similar to the corresponding provisions of the National Law to make the reasoning there expressed applicable in the present case. There, Basten JA (Giles JA and Bergin J agreeing) said at [67]: "The first aspect of this challenge is based on an assumption that the Tribunal should start with the possibility of deregistration, once a finding is made of professional misconduct, because, by definition, such conduct is of its nature sufficiently serious to justify a suspension or removal of the practitioner's name from the register: the Act, s 37. However, it is clear that the definition [of professional misconduct] is focused on the nature of the conduct, which must have the capacity to justify such an order [suspension or cancellation], whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss 60-64 [which are substantially the same as ss 149 to 149C of the National Law], which provide that the full range of disciplinary powers is available on a finding of professional misconduct. The statutory constraints operate differently. Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1) [s 149C(1) of the National Law is to similar effect]. Further, the power to impose a fine depends upon a finding that the person is guilty of unsatisfactory professional conduct or professional misconduct: s 62(2) [see s 149B(2) of the National Law]. Otherwise, the discretion of the Tribunal is at large and will depend upon the circumstances of the individual case: see, in relation to legal practitioners, Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at [76] (McHugh, Kirby and Callinan JJ)." 1. We have already recorded that the Tribunal exercises a protective jurisdiction, with the health and safety of the public the paramount consideration for the Tribunal. The protective purpose of disciplinary legislation is not peculiar to medical professionals. In NSW Bar Association v Meakes [2006] NSWCA 340, the Court of Appeal was required to consider the content of a disciplinary order imposed upon a legal practitioner. At [113] Basten JA, after considering a number of decided cases relevant to legal practitioners, said at [113]: "The point sought to be made in the authorities is, no doubt, that the Court or Tribunal making an order in disciplinary proceedings must have squarely in mind the protective purpose of the order, in the public interest. That is not to say that the adverse (punitive) effect on the practitioner should be ignored; clearly no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose." 1. That observation by his Honour has been applied in the context of disciplinary proceedings against a medical practitioner. In Health Care Complaints Commission v Ly [2010] NSWMT 20 the Medical Tribunal determined disciplinary proceedings against Dr Ly for prescribing Sch 4D restricted substances in inappropriate circumstances and prescribing Sch 8 drugs without authority. Citing the decision in Meakes, the Tribunal said at [20]: "The outcome should be the least serious outcome that is reasonably necessary to protect the health and safety of the public (through specific and general deterrence, denunciation and promoting public confidence in the profession)."

Orders sought 1. In its final submissions, the Commission sought an order pursuant to s 149C of the National Law that Dr Brittain's registration be cancelled from the time at which our reasons are published and that he not be permitted to apply for review of that order for a period of 12 months. The Commission also sought an order that Dr Brittain pay its costs of the proceedings. 2. The alternative but less preferred position of the Commission was that pursuant to s 149C, Dr Brittain be suspended from practice for a period of six months, that suspension to commence on the date upon which the Tribunal made an order to that effect. At the conclusion of the suspension period, the Commission proposed that Dr Brittain's registration be subject to a number of conditions, the first of which was a mentoring condition for a minimum period of 12 months and for such further period as the Medical Council of New South Wales determined to be appropriate. The proposed conditions further required that Dr Brittain: "b. Not possess, prescribe, supply, dispense or administer any drug of addiction (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW) or any other narcotic analgesic. c. Not to possess, prescribe, supply, dispense or administer Schedule 4 Appendix D drugs as defined by the Poisons and Therapeutic Goods Regulation 2008 (NSW)." 1. The Commission also sought a condition, in the event of suspension rather than cancellation, that Dr Brittain attend a psychologist for a minimum period of 12 months from the date of first consultation, with the requirement that the psychologist be approved by the Medical Council, with authority from Dr Brittain to notify the Council in the event that Dr Brittain failed to comply with any requirements of the nominated psychologist. Ancillary conditions were also proposed by the Commission. 2. For his part, Dr Brittain opposed cancellation or suspension of his registration but accepted that his registration should be subject to conditions. Those conditions included a prohibition upon the possession or prescription of both Sch 4D and Sch 8 drugs in terms not dissimilar from those proposed by the Commission. He also accepted a limitation upon hours of work, an audit of his medical record as well as a mentoring condition. We did not understand him to oppose an order that he pay the Commission's costs of the proceedings.

Investigation of complaints 1. As a result of a complaint first made in December 2012 relating to Patient A, an investigation concerning the prescription of drugs by Dr Brittain was undertaken by the Pharmaceutical Services Unit in the Ministry of Health. According to the investigation report that is in evidence, the investigation carried out in early 2014 "failed to identify any major areas of concern with Dr Brittain's prescribing practices." As a result, the investigation was postponed and recommenced in August 2015. That further investigation led to the identification of drug prescriptions provided to Patients B to G. 2. The investigating officer initially telephoned Dr Brittain to question him concerning his prescribing practices for each of the seven identified patients. The investigating officer stated in his report that during that discussion he found Dr Brittain "to be cooperative and helpful with respect to all enquiries made of him." Subsequently, Dr Brittain was invited to attend upon the investigating officer for the purpose of interview. He agreed to do so, that interview having taken place on 9 December 2015 in company with his solicitor. The interview was recorded and a transcript of that interview tendered in evidence. 3. At the conclusion of the interview, Dr Brittain was asked whether he would voluntarily relinquish his authority to prescribe Sch 8 drugs. His recorded response was, "I'm happy to do whatever you request me to do". He stated that he had already stopped prescribing Sch 8 drugs, referring the patient to other practitioners for assessment if medication of that kind was thought to be appropriate. As the investigating officer records, on 16 December 2015, a written request was received from Dr Brittain, seeking to surrender his authority as a medical practitioner to possess, supply, administer and prescribe drugs of addiction. That request was approved on 24 December with an order made, effective from 4 January 2016, removing Dr Brittain's authority in the terms requested. Subsequently, conditions were imposed upon his registration as a medical practitioner in the following terms: "1. Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). 2. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions. 3. Not to possess, supply, administer or prescribe any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW)." 1. In substance, those conditions are conditions that Dr Brittain would continue to accept as being appropriate to be imposed upon his registration, subject to the discretion of the Medical Council to modify or remove those conditions at a future point in time. There is no evidence before us suggesting that Dr Brittain has failed to observe the conditions imposed upon his registration.

The evidence of Dr Brittain 1. The statement of Dr Brittain tendered in evidence is wholly directed to an explanation of his conduct relevant to appropriate protective orders. In short, that evidence seeks to address the personal circumstances that weighed upon him during the period to which the complaints relate; the steps taken by him to address the pressures under which he says that he was then experiencing, and the educative process that he has undertaken in order to address the shortcomings in his medical education, directed to the prescription of addictive drugs and the conduct of patients having a propensity for addiction.

Personal circumstances 1. Dr Brittain married in the year 2000. His then wife brought to the marriage a child from a previous relationship. From the time of his marriage he has treated that child as if he was the child's father. 2. For reasons that will become apparent, it is appropriate to anonymise the names of the children referred to in Dr Brittain's evidence. We will refer to the child brought to the marriage by Dr Brittain's wife as AB who was six years old at the time of their marriage. 3. In June 2001, a child from Dr Brittain's marriage was born. It is appropriate to refer to that child by the pseudonym CD. A further child of that marriage, given the pseudonym FG, was born in June 2003. Both children were born with significant health issues. At age 2, CD underwent surgery for what was diagnosed as an intra-cranial tumour. That diagnosis occurred in October 2003. She subsequently underwent surgery for an atypical meningioma. 4. In 2005, FG underwent neuro surgery for an extra foramen magnum decompression for a Chiari defect and syrinx, a significant neurological condition. The condition of both children has resulted in considerable time, energy and expense being devoted to the management of their respective conditions by different medical professionals. 5. The evidence before us directed to Dr Brittain's personal circumstances indicates that from about 2009 it was apparent that his marriage was breaking down. In 2010, Dr Brittain's mother died leaving her estate to be shared as to one half for his brother with the other half of her estate to be held on trust for CD and FG to be shared equally between them. 6. In 2011, Dr Brittain separated from his wife although, for a time, they remained in the matrimonial home. The relationship between them was acrimonious. In October of that year, Dr Brittain's wife called the Police to the home, alleging that she had been assaulted by him. The Police attended but, according to Dr Brittain, declined to issue an Apprehended Violence Order against him. 7. As a result of that incident, he moved into a room attached to the garage at the home that he thought necessary to secure with locks in order to avoid confrontation with his wife. Nonetheless, he continued to prepare breakfast, lunches and dinners for the three children then at home, carried out necessary housework for them as well as attending to his medical practice at the Caringbah Medical Centre. 8. In late January 2012 he moved from the garage at the matrimonial home to rented premises at Port Hacking. 9. In April 2012, final parenting, property and spousal maintenance orders were made by the Family Court of Australia. That is said by Dr Brittain to have occurred following extensive arguments between the parties with each engaging a legal representative for the purpose. Spousal maintenance was required to be paid because throughout the marriage Dr Brittain was the sole income provider for the family. 10. Regrettably, the making of orders by the Family Court did not resolve disputes between Dr Brittain and his former wife. He described those disputes as generally related to compliance with orders, particularly relating to his access to and time with the three children of the marriage. 11. The former matrimonial home was sold in November 2012. The three girls then moved with their mother to a home she selected in Rose Bay. In February 2013, CD was enrolled at a private school near Rose Bay while FG commenced schooling at a State primary school. Dr Brittain regularly visited his daughters while remaining at his practice in Caringbah and rental home in Port Hacking. 12. CD was very unhappy at her new school and by May 2013 was refusing to attend school. She requested Dr Brittain to move closer to Rose Bay so that she could more readily visit him. As a result of that request, he moved to rental accommodation in Double Bay, not only to be closer to all three children but particularly to provide encouragement to CD to attend school. 13. During this period of matrimonial disharmony, both CD and FG suffered migraine headaches in addition to the pain associated with their respective congenital conditions. Dr Brittain sought medical treatment for them from other practitioners in an endeavour to assist them coping with those medical conditions. 14. In August 2013, Dr Brittain took FG for a number of consultations with Professor Cousins at the Northern Pain Centre. However, after completing six sessions, FG told Dr Brittain that the sessions were "detested", with the result the Centre was not revisited. 15. In January 2014, AB was living with her mother in a home to which she had moved in Vaucluse. She informed her mother that she intended to move out of the house whereupon her mother threw AB's belongings outside and locked AB out of the house. Faced with that dilemma, AB telephoned Dr Brittain who immediately came to collect her and subsequently assisted her move to the accommodation that she had selected. Following the separation of Dr Brittain from his wife, he has maintained a close relationship with AB, regularly undertaking weekend kayaking excursions with her. 16. On the weekend of 19 October 2014, CD stayed with Dr Brittain at the request of his former wife. The following day, CD refused to return to his former wife. The response of his former wife was to telephone the Police, who attended Dr Brittain's premises but then left without taking any action. Shortly after that episode, CD was confronted at Dr Brittain's house by his former wife while Dr Brittain was at work. Notwithstanding that confrontation, CD refused to return but also refused to attend school. 17. In the meantime, Dr Brittain was endeavouring to address the constant thoracic pain of which FG complained. He took her to a new pain psychologist but when FG refused to converse with that psychologist, no further sessions could be held. 18. Throughout this time, Dr Brittain continued to work at the Caringbah Medical Centre, commuting each day from Double Bay. However, the stress and responsibility of so doing while being the primary carer for CD, as well as concern for FG, triggered his decision to resign from that practice, notwithstanding a requirement that he pay out the remaining three months of his contract with the operator of the medical centre. It was then that he signed a contract with IPN Medical Centres to work at the Edgecliff Medical Centre, commencing in February 2015. 19. When the school term commenced in February 2015, CD refused to return to the former school of enrolment but indicated a preparedness to attend a local secondary school. However, when Dr Brittain endeavoured to make that enrolment it was declined because his former wife had contacted the school, opposing that enrolment. 20. In an endeavour to secure school enrolment for CD, Dr Brittain made application to the Family Court for orders addressing CD's education. That application was ultimately successful, resulting in CD's enrolment at the local secondary school, effective from the commencement of Term 2 in that year. 21. As a result of the impasse concerning CD's schooling in Term 1 of 2015, Dr Brittain retained a tutor to come to his home for 3-4 days each week so that CD would not fall behind in her secondary education. Such was the concern of Dr Brittain for CD that he also stopped working for a time so that he could offer full time care to CD and be available while the tutor was in the house. He states that, at the time, he held concern for CD's mental health. 22. In May 2015, Dr Brittain was notified by the Commission of a complaint received from his former wife, alleging that he had "interfered with the medical treatment provided to CD and FG." Dr Brittain's response to the Commission was followed by a further request for a response from the Medical Council. The latter response was provided by him on 28 July 2015. Less than one month later, he was informed that no action would be taken in relation to that complaint. 23. For a time, Dr Brittain had been experiencing financial difficulties, a matter to which we will refer shortly. By March 2016, he found that CD, who remained living with him, was far more settled than in the first part of 2015, as a result of which he moved with CD to a rental property in Mascot, paying considerably less in rent than he had done while living in Double Bay. It was shortly after his move that CD informed him of being transgender and that CD not only wished to identify as a member of the opposite sex but to have a change of name appropriate to that sex. Dr Brittain thereafter assisted CD with that change, as well as "educating" himself as a parent of a transgender person, including attending transgender support groups and supporting CD in the changed role. 24. In August 2016, Dr Brittain was informed by the Commission of a further complaint made by his former wife. The complaint again alleged interference by Dr Brittain with the medical treatment of CD and FG. Again, he was subsequently advised that no action was to be taken in respect of that complaint. 25. In October 2016, Dr Brittain states that he experienced great distress at learning that funds left by his late mother for CD and FG had been dissipated, such that they would be left "almost nothing" from his late mother's estate upon reaching adulthood. He states that the funds had been expended by his former wife without any reference to him. 26. In short, Dr Brittain says that the period from 2009 through to about 2016 was "incredibly stressful". He states that he was frequently abused by his former wife, including the accusation that his family genetics were the cause of the ongoing medical conditions of CD and FG. Other stressors were founded in the responsibility he felt in providing care for CD and FG during that period; the changes to his living accommodation; the litigation concerning the family breakup and the complaints both to the Police and to the Commission by his former wife. 27. Added to those stressors were financial difficulties that he was experiencing during that period. Not only was he the sole provider for the household and then for the separate households following separation, he states that he spent over $100,000 on legal fees, including the fees necessary to obtain an order from the Family Court directed to CD's enrolment in secondary school. In addition, he incurred fees for the full time tutoring of CD for a school term. So as to address his liabilities, he states that he borrowed from his brother to cover some of his expenses. In order to make good that borrowing and otherwise meet his commitments, he worked additional shifts at the medical practice to which he was contracted. 28. Consistent with his admission of the three complaints brought against him, Dr Brittain made clear that he accepted "full responsibility" for his errors in patient care reflected in the present complaints. He acknowledged the potential for considerable harm. The personal circumstances that he related in evidence are stated by him to provide a context in which his impugned conduct occurred. He was forthright in stating that those circumstances were not advanced by him in order to justify that conduct. 29. The evidence reveals that in the critical period between 2009 and 2016, Dr Brittain did detect and refuse to treat a number of "imposters" who he discerned were simply shopping for prescriptions for addictive drugs. However, he stated that when he was consulted by a patient who appeared to him to be suffering genuine pain, he recognized, in hindsight, that he was possibly over-sympathetic to their condition, with a strong desire to relieve pain symptoms. He has recognised that the combination of a less than adequate understanding of the true complexities of prescribing Sch 4D and Sch 8 medication, a heavy patient load and the stress under which he was working from family circumstances, all had the effect of causing him to act with less objective care for the seven nominated patients than they were entitled to receive from him as a medical practitioner.

Steps taken to address his personal circumstances 1. The investigation of the complaints by the Commission, culminating in the interview with investigators in December 2015, resulted in Dr Brittain taking steps to address the pressures under which he was working as well as undertaking a program of medical education, particularly in those areas of practice in which he recognised he was found wanting. Taking those steps coincided with a less fractious relationship with his former wife that, in turn, relieved some of the stress being experienced by CD and FG in particular. 2. He consulted a psychologist with whom he had regular sessions over a period of time. Those consultations have now ceased at the suggestion of the psychologist who expressed the opinion that there was no present need for those consultations to continue. 3. As well, he recognised the need for a mentor. In that context, he sought the assistance of Dr Peter Holloway, an experienced general practitioner in his present practice. He states that he particularly sought the mentoring of Dr Holloway in relation to the prescription of drugs of addiction. Dr Holloway has assumed the role of mentor since early 2016. 4. That position is confirmed in a statement which is before us from Dr Holloway. In his statement, Dr Holloway says that he has regular weekly and sometimes bi-weekly meetings with Dr Brittain to discuss patient management. The topics they have discussed include the handling of difficult patients, prescribing options for pain management, challenging diagnoses and appropriate use of Medicare item numbers for patient consultation. 5. Dr Holloway is aware of the restriction upon Dr Brittain that prevents him prescribing Sch 4D and Sch 8 drugs. If a patient consults Dr Brittain who Dr Brittain considers might benefit from the prescription of medication in those categories, the patient is referred to Dr Holloway. Often, following such a referral, Dr Holloway says that he will discuss with Dr Brittain whether he considered the prescription of Sch 4D and Sch 8 drugs was appropriate for that patient together with the reason for the decision that he had made in that regard. 6. Dr Brittain states that almost all his practising hours are spent at the Randwick practice at which Dr Holloway is located. He describes Dr Holloway as having "an open-door policy" with the result that there are "many occasions and opportunities" to seek his opinion. 7. In late 2016, Dr Brittain attended a "one on one" mentoring and education session with Dr George Zaharias in Melbourne. Dr Zaharias is said to be a senior medical advisor and examiner for the Royal Australian College of General Practitioners as well as holding a position as lecturer in medicine at Monash University. 8. Dr Brittain's mentoring and education session with Dr Zaharias involved two three-hour sessions on 17 November 2016. The topics covered in those sessions are identified by Dr Brittain as being: "(a) the statutory regulations with regard to prescribing S8 and S4 drugs of dependence; (b) the identification and management of drug seeking patients; (c) principles of chronic pain management; and (d) medical record keeping." 1. For the purpose of those sessions, Dr Brittain was required to complete a reading list, including publications directed to addiction to prescription medication and "prescribing drugs of dependence in general practice". 2. A report from Dr Zaharias is attached to the statement by Dr Brittain. That report provides, in detail, the matters discussed during the course of the two sessions held with Dr Brittain. The report concludes: "Dr Brittain attended on time and participated very actively in the discussion. He said that as a result of what he had learnt in the two sessions, his approach to the consultation, with drug seeking patients specifically, would be very different in future. Dr Brittain now recognises: • That because drug seeking behaviour has become much more calculated and much more manipulative, there is no room for complacency on his part. • The importance of: o Corroborating the patient's story by taking a good history, conducting an appropriate physical examination and obtaining details of medical history from previous and other treating health professionals. o Reviewing the patient's condition at each visit and always questioning the need for drugs of addiction. o Using the doctor shopper hotline, even with long standing patients and those who might appear genuine. o Not using 'pressure of time' as an excuse anymore."

Further education 1. Dr Brittain states that in an effort to improve his knowledge of safe and proper prescribing of drugs of addiction, he has focused much of his ongoing Continuing Medical Education on courses, seminars and online modules in that area of medicine. 2. Between 17 July and 27 October 2017, he completed the Monash Institute of Health and Clinical Education course entitled "Issues in General Practice Prescribing". For that course, Dr Brittain completed 10-12 hours per week of education as well as submitting four essays for assessment. A certificate of completion of that course issued by Monash University is included in the evidence. 3. Between July and December 2017, Dr Brittain also undertook a post-graduate course at Sydney University entitled "Pain Treatment and Management Principles". That course involved 10 hours per week over 14 weeks. The course also required the completion of a 5000-word essay. A certificate from the University shows that Dr Brittain completed the course with a credit mark. 4. Between September 2016 and January 2018, Dr Brittain states that he completed some 38 units or activities at various venues as part of his Continuing Medical Education. Each unit or activity that he undertook and completed is identified in his Statement of Evidence. The topics identified in these units focus upon the prescribing of opioids, drug seeking behaviour, drug addiction or abuse and treatment of chronic pain. 5. He states that he actively seeks out further education and training with respect to prescription of drugs of addiction. Accepting the present restriction upon his registration that prevents him prescribing Sch 4D and Sch 8 drugs will remain for a time, he expresses the hope to demonstrate in the future that he now has the knowledge in that area of general practice in which he was found wanting so that he is able to treat and manage his patients "in the best way possible". He holds that aspiration as he states that he does "care about his patients" and is focusing upon being "the best possible medical practitioner that I can be". 6. Finally, Dr Brittain stated that he has regulated his practice hours such that he works an average of nine hours on Monday to Friday as well as each alternative Saturday between 8am and 2pm. As well as caring for CD, who continues to reside with him, this regulation of his practice hours enables him to pursue the regime of physical fitness that he has undertaken, including cycling 40 minutes each alternate day as well as attending a gymnasium. He identifies a good support group of family and friends with whom he shares regular social and recreational activities.

The evidence of Dr C Lennings 1. Dr Christopher Lennings is a clinical psychologist to whom Dr Brittain was referred for the purpose of providing an expert report. That report was tendered and Dr Lennings was cross examined before us. 2. For the purpose of providing his assessment, Dr Lennings was provided with a large number of documents that are before us, including the Application for orders, together with the complaints founding that Application, the report of Dr Kertesz that we have earlier discussed and the Statement of Evidence prepared by Dr Brittain. The interview with Dr Brittain for the purpose of providing his report is said to have occupied about 90 minutes. It is apparent from the lengthy report of Dr Lennings that he reviewed the documents with which he was provided before completing the report. Further, Dr Brittain was required by Dr Lennings to complete, in his own time, a self-report personality questionnaire that was used by Dr Lennings for the purpose of his assessment. 3. Dr Lennings described Dr Brittain as being "frank and open", showing "good concentration and attention without any obvious neuropsychological or severe mental illness issues. He was described as "willing and open to consider the issues that had been raised against him". In the course of the interview Dr Britain described the report of Dr Kertesz as reflecting "a fair assessment of the issues" and that he had no quarrel with the critical observations made of him in that report. 4. At the interview, Dr Brittain acknowledged that "he had written scripts that he should not have written". Apart from an apparent belief that he could detect people presenting with "factitious orders", Dr Lennings also discerned that Dr Brittain had been "overly influenced by a belief that because of his own family circumstances, particularly the severe pain of one of his children, and his adherence to a particular pain specialist teachings, that the use of benzodiazepines and opioids for pain control was appropriate. He now recognises that in fact is not the case." 5. The report records an awareness by Dr Brittain that there are "strong protocols about what doctors should do or not have done" and that he now knows "much more where he would go in the future in regards to these kinds of issues." Although acknowledging that he had sought authorisation to prescribe drugs for a patient who he considered to be in significant pain, when the authorisation was refused for that patient, he continued to prescribe the drug because he accepted the level of pain stated and that the patients had "intractable conditions". He was described by Dr Lennings as having an "excessive need to 'help all comers' and this altruism to some extent deflected from his professional practice." 6. Dr Lennings sets out in detail the family history and personal stressors that we have already discussed. He also records the steps, both physical and educative, that Dr Brittain has taken to rehabilitate himself since the present complaints came to light in late 2015. 7. In formulating his psychological assessment of Dr Brittain, Dr Lennings states: "Dr Brittain presents as a man of good psychological function. Nonetheless he has experienced major stress in the last two decades of his life that have impacted upon his mood, his capacity to manage his stress levels and ultimately his professional judgement and decision making. He presents as a person who has some legacy issues in his childhood that have left him with somewhat altruistic in his presentation to others and allowed him at times to be taken advantage of. Nonetheless on the whole he presents as having been an ethical and concerned practitioner. Although there have been concerns about some of his patients, as I understand it he does not appear to have ever been mercenary in his approach to his patients. He presents as a kind and caring man and he is certainly well regarded by his children, although in the context of his failed marriage he has experienced enormous stress both financial, legal and personal. He has had episodes of depression and anxiety over the years, which he has managed through a combination of psychotherapy and ongoing medication." 1. Drawing upon the psychometric assessment, Dr Lennings states that the "most likely current diagnosis for him is an adjustment reaction secondary to the high stress environment he finds himself in." 2. There are three concluding paragraphs of the report that should be noticed: "46. Dr Brittain does not suffer from any serious mental illness nor in my opinion does he suffer from a personality disorder or personality disorder traits other than perhaps a certain desire to do the best he possibly can for others. Dr Brittain does experience moderate depression from time to time and also anxiety but these are containable and he has sought appropriate treatment for. [sic] 47. At a characterlogical [sic] level he appears to be a man of good character. Psychologically he appears to be an intact individual with insight and the capacity for normal expression of behaviour. To that end I believe that he is fit to hold registration as a doctor. His engagement with the complaint, his acceptance of responsibility for it and his engagement with rehabilitation attempts influenced me to believe that he will practice in the future in accordance with appropriate ethical and professional standards. 48. The single greatest safeguard I can foresee for Dr Brittain would be a requirement to engage in reflective practice. The best way to do that would be to organise some kind of mentoring or supervision arrangement every fortnight or perhaps on a monthly basis where he had a formal sit down time with a person where he could discuss cases and thereby improve his reflective practice in regard to his diagnosis and treatment of patients."

Referees 1. Dr Brittain has tendered, without objection, statements from 11 referees. None were required for cross examination. Each referee stated an awareness of the content of the complaints that are the subject of these proceedings and the fact that Dr Brittain was before the Tribunal for disciplinary orders. 2. Referees fall within four broad categories: medical practitioners, healthcare professionals, patients and personal referees. In the first category, we have already referred to the statement of Dr Peter Holloway that is before us. Apart from confirming his role as mentor to Dr Brittain, he says that patients that he sees when Dr Brittain is not available "are very happy and comfortable with [Dr Brittain's] manner, his care and his professional approach." Those traits have resulted in Dr Brittain building a "very busy practice" over a relatively brief time. He describes Dr Brittain as now having a detailed knowledge of the legislation governing the prescribing of Sch 4D and Sch 8 medications as well as displaying "insight into the appropriateness of such medication for a particular medical/surgical problem and at the same time the inappropriateness of this medication for certain people." Dr Holloway concludes by stating that it has been "a pleasure working closely with Dr Brittain" as a result of which he believes that Dr Brittain "has the knowledge, the professionalism and the personable manner to be an excellent medical practitioner." 3. Dr Patrick Choueifiti worked with Dr Brittain at the Caringbah Medical Centre. He states that he worked with Dr Brittain on numerous medical cases, as a result of which he described Dr Brittain as a very knowledgeable man who was "caring and sensitive" and "extremely generous with his time for patients". He described Dr Brittain as having a "broad knowledge in general medicine", reflective of the way in which he carried out his practice. He instances the gratitude recently expressed to him by an elderly patient in a nursing home for the care and treatment that he (the patient) had received from Dr Brittain over a number of years. Dr Choueifiti said similar sentiments were expressed to him by a number of patients who consulted Dr Brittain prior to his departure from the Caringbah practice. 4. Dr Raji Kooner is a specialist urological surgeon while Dr Eric Coudounaris is a consultant paediatrician. Each of them has known Dr Brittain professionally and personally for a period in excess of 20 years. Dr Brittain has referred patients to them according to their respective specialties. Each of them has written in commendatory terms of the medical assessment made by Dr Brittain of a referred patient and the thoughtfulness expressed in patient referrals. They have each expressed confidence in the follow-up of recommendations made in respect of referred patients, with Dr Kooner commenting upon his ability to discuss patient management with Dr Brittain by telephone. Further, they have each expressed the opinion that Dr Brittain is a highly regarded general practitioner. 5. Dr Kara Petersen has known Dr Brittain since 1988 when they worked together as junior medical colleagues at Sutherland Hospital. They have remained friends since that time. She has been working in general practice at Oyster Bay in the Sutherland Shire since 1996. Since then she has seen patients who had previously consulted Dr Brittain. Some were referred to her by Dr Brittain if they had moved closer to her practice or had done so as a result of his move in 2015 from Caringbah to Edgecliff or Randwick. She states that former patients of Dr Brittain held him in high regard "and have been saddened by the loss of their general practitioner". On no occasion when she has seen patients formerly treated by Dr Brittain has she had reason to "question his management decisions regarding the treatment of any patients." Dr Petersen also states that she has had many conversations with Dr Brittain either concerning shared patients, at educational functions or social functions, as a result of which she describes him as having "a very sharp intellect, a broad and current knowledge base and a pragmatic, common sense approach." 6. Maria-Elena Lukeides is the principal clinical psychologist with the Wellness Foundation. She has worked closely with Dr Brittain for the past 12 years, being a psychologist to whom Dr Brittain has referred a number of patients. She states that the patients referred to her by Dr Brittain hold him in high esteem because of the "astute understanding and high quality of care that he has shown his patients." She records that Dr Brittain is, in her experience, among "the few doctors who take the time to liaise meaningfully with me in coordinating patient care, managing patient risk and discussing patient management options." As someone who is also a friend of Dr Brittain, Ms Lukeides states that he is extremely remorseful and ashamed of the events that caused the present complaints to be made against him. In her opinion, the conduct that is the subject of complaint is entirely out of character, given that the "feedback" she receives from his patients is of a caring, sensitive and supportive doctor, his concern for their psychological welfare being a hallmark of his reputation. 7. Ms Leanne Davies is also a clinical psychologist. She has known Dr Brittain since 2005 when he commenced consulting with her in a professional capacity. Initially, consultations involved both Dr Brittain and his former wife due to the stress being placed upon their marriage by the life-threatening condition of CD which she described as "traumatising for both of them over some two years." Dr Brittain resumed consultations with Ms Davies at or about the time of his marriage breakdown. 8. In the latter periods of consultation with Ms Davies she observed him to be highly stressed and anxious, "trying to move on with his life and extricate himself" from what he considered to be "a mostly dysfunctional and overcontrolling marriage." He envisaged either having the children live with him or share their care. He is reported as cooperating with therapeutic strategies to address his stress including "maintaining a focus on diet, exercise and sleep and challenging negative self-talk through the use of cognitive behaviour therapy." 9. Ms Davies concluded by stating that Dr Brittain "impressed as a responsible and socially aware adult" who in spite of his stress and anxiety sought to meet his responsibility to his children and the running of the household. She described the skills possessed by Dr Brittain as including "self-discipline, reasoning, diligence, vision, tenacity and collaboration." 10. Glenn Colaco is a sports physiotherapist. He has known Dr Brittain in a professional capacity, as his own general practitioner and as a friend for many years. They first met in 1990 when working together at a multi-disciplinary sports and rehabilitation centre in Sutherland. Mr Colaco says that he suffers from a chronic immunological disorder. He states that he has received extensive help from Dr Brittain in managing that disorder not only by his treatment as a general practitioner but in referral to and liaising with numerous treating professionals. He says that he has found Dr Brittain to be a "hard-working, down-to-earth and empathetic doctor." He also described him as being a devoted father and stepfather who prioritises the welfare of his children. 11. Mr Colaco observed that Dr Brittain had made significant efforts to amend his work practice so as to comply with the requirements of his professional registration. He states that to be evident from mutual patients who have reported Dr Brittain's inability to prescribe strong pain relief medication but who have stated a preference to see Dr Brittain as their general practitioner because they find him to be "thorough, caring and competent." 12. Anthony Unicomb is retired Chief Inspector of the NSW Police. Robert Woodhouse is the chairman of a well-known company. Both are long term patients of Dr Brittain who consulted him while he practised in the Sutherland area and have continued to do so since his move to practice at Edgecliff and then Randwick. 13. Mr Unicomb provides detail of various experiences he has had with Dr Brittain, describing the thoroughness of his medical attention and referring to the fact that Dr Brittain discovered a life-threatening heart condition in circumstances where Mr Unicomb consulted him in the belief that he was suffering influenza. He recites treatment received from Dr Brittain for other ailments or conditions in commendatory terms. He states that his experience of Dr Brittain related to prescription of restricted medications following major surgical procedures or psychological ailments was "one of wise counsel and great restraint, ensuring I was prescribed medications only to effectively manage and assist my conditions." He recalled that on several occasions he was denied repeat prescriptions by Dr Brittain for sleeping tablets and anti-psychotic medication. In summary he stated that Dr Brittain was "nothing other than a highly experienced, exceptionally competent and highly respected medical practitioner." 14. The comments made by Mr Woodhouse are to similar effect. Both Mr Woodhouse and his wife are current patients of Dr Brittain although they remain resident in the Sutherland Shire. He said that while there was usually a long wait to see Dr Brittain at the various premises at which Dr Brittain has practised, that inconvenience was justified because of the integrity of Dr Brittain, the quality of his service to patients, his professional ability, high ethics and personal attention to his medical requirements that has caused him to maintain his relationship as a patient. He described Dr Brittain's diagnostic ability and understanding as going "way beyond my expectations of the medical profession." 15. Finally, there is a reference from AB, Dr Brittain's 23 year old stepdaughter. She describes Dr Brittain as having been a father figure to her from the age of 5. He is identified as being not only the sole source of income for the household while she was growing up but that he treated her "with love as his own child." 16. AB describes Dr Brittain during the time they lived together as a family as being "incredibly hardworking, infallibly putting in the necessarily long hours" as a general practitioner in order to support the family. She was conscious of the great strain placed upon the family by reason of the significant health issues suffered by her siblings. She also described the growing tension in the household because of the breakdown of the relationship between her mother and Dr Brittain. Notwithstanding the difficulty created by what she described as her mother's "verbal attacks", Dr Brittain continued to work in his practice, work around the house as well as cooking dinners, preparing breakfasts and school lunches for her and her siblings. She described the occasion on which Dr Brittain came to her assistance when her mother had locked her out of the house in which she was then living and thrown her belongings onto the lawn. She said that that was an example of why she could always rely upon him. 17. AB expresses admiration for the way in which Dr Brittain has accepted the transgender change in CD. She is commendatory of the support that Dr Brittain has given and the steps he has taken both to assist CD with that change, including attending transgender support groups, encouraging CD to be happy and comfortable with the transgender decision. She describes Dr Brittain as "an honest and reliable person" who works hard and cares about those around him. She observed that since moving to Mascot, Dr Brittain seems happier "and to have more time for himself and my siblings."

Assessment 1. Our consideration of the evidence in its totality, including that addressed by or on behalf of Dr Brittain, and directed to appropriate protective orders, must be informed by the principles earlier discussed. As was submitted on behalf of the Commission, the principle of paramount consideration to the protection of the health and safety of the public when considering the nature of protective orders to be made in a given case, particularly in a serious case, is helpfully addressed by Meagher JA (Basten and Emmett JJA agreeing) in Health Care Complaints Commission v Do where at [35] his Honour said: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar conduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 1. Our finding that the conduct of Dr Brittain constitutes professional misconduct and the reasons we have expressed for that finding demonstrate the seriousness of his conduct towards the seven patients who are the subject of the complaints. That conduct extended over a six-year period between 2009 and 2015. 2. The Commission submits that by his admissions and evidence, Dr Brittain concedes, among other matters: 1. an awareness that Sch 8 drugs were drugs of dependence; 2. an awareness of possible interactions between Sch 8 drugs and Sch 4 drugs; 3. a minimal awareness of the appropriate codes of conduct and statutory provisions relating to the prescription of Sch 4D and Sch 8 drugs; 4. grossly deficient record keeping; 5. an awareness or suspicion that some patients were exhibiting drug seeking behaviour; 6. he continued to provide a prescription for a Sch 8 drug for Patient G when authority to do so was denied; 7. prescribing medications without a plan in most cases and at frequent intervals; and 8. he ignored software computer warnings on his prescribing in respect of some patients. 1. The Commission further submits that Dr Brittain's prescribing for a number of the seven patients was not only inappropriate but potentially dangerous. He apparently failed to read his own notes or notes of other practitioners within his practice who were also prescribing medication for those same patients. 2. As objective facts and observations before us, we accept that the matters identified by the Commission are supportive of the contention that the misconduct of Dr Brittain was of sufficient gravity to justify cancellation of his registration. Accepting that submission, as we do, that is the foundation for our finding that Dr Brittain is guilty of professional misconduct. 3. Acknowledging that protection of the health and safety of the public is paramount, it was submitted on behalf of Dr Brittain that relevant to our consideration of the appropriate protective order are: 1. the gravity of the misconduct; 2. when the misconduct occurred; 3. Dr Brittain's level of remorse and degree of insight, if any, into his misconduct; 4. what (if any) steps have been taken by him directed to rehabilitation; 5. the fact that the jurisdiction is protective and not punitive. As decided cases make clear, the paramount principle together with considerations of the kind identified in that submission necessitate an evaluative judgment when determining an appropriate protective order (see, for example, Chen v Health Care Complaints Commission at [20]; Health Care Complaints Commission v Karalasingham at [67]). 1. Without diminishing the gravity of his misconduct, there can be no doubt that the six years during which misconduct occurred was a period during which Dr Brittain was beset by very stressful personal circumstances. Those circumstances, coupled with his deficient clinical knowledge, undoubtedly led to poor clinical decisions, having the impacts or potential impacts upon the seven nominated patients to which we have referred. 2. Dr Lennings identifies an interrelationship between two cognitive processes that he opines were present during the relevant six-year period. They involve what he described as being "parallel processing", a form of automatic thinking resulting in superficial or shallow judgment, coupled with professional burnout. He identifies the causative mechanism for each as being extreme levels of stress, founded in the acrimonious breakup of his marriage, coupled with the concern for each of his children whose medical and psychological conditions contributed to that stress. As explained in his oral evidence, Dr Lennings stated that excess stress of the kind being experienced by Dr Brittain at the time results in cognitive impairment, manifesting a lack of attention or withdrawal of attention and effort to tasks at hand. 3. Counsel for Dr Brittain submitted that the evidence of Dr Lennings provides the most cogent explanation for the respondent's prescribing practices during the period of complaint. We accept that submission. In the absence of any contrary evidence before us, we proceed upon the basis that for 24 years prior to the period over which complaint is made, Dr Brittain conducted his practice in a manner that did not attract any complaint. Indeed, the evidence from referees to which we have referred establishes the high repute with which Dr Brittain was and continues to be held. The understandable epithets attributed to Dr Brittain by Dr Kertesz, when addressing the circumstances of each of the seven patients, are understandable and not challenged as to their appropriateness to the circumstances being discussed. However, they are epithets that are inconsistent with the observations made by others in respect of Dr Brittain's conduct under prior and present circumstances. 4. We do not repeat the detail of the evidence given by referees. It is sufficient for present circumstances to identify the observations of medical practitioners who have both worked with or with whom Dr Brittain has contact on a professional basis, commending the quality of his medical work and knowledge, as well as the care he ordinarily gives to his patients. That evidence is supported by the health care professionals with whom he has contact, the patients who have been treated by him over many years, as well as the personal references that he has received. 5. Dr Brittain's actions in relation to the complaints brought against him, from the time of his initial interview by investigators in December 2015 through to the conduct of these proceedings, have all manifested remorse at what has occurred and insight into his shortcomings. Both in his report and oral evidence, Dr Lennings expressed the opinion that Dr Brittain had a "high level" of insight into his misconduct, his acceptance of full responsibility for his behaviour as well as his enthusiastic and thoughtful engagement with all rehabilitative efforts. In his oral evidence, Dr Lennings acknowledged that while a recurrence of burnout was possible, the risk of that occurring was reduced in an individual who has learnt from and identified markers for its occurrence and strategies to avoid its recurrence of the kind that Dr Brittain has adopted. Dr Lennings considered that the risk of stress related cognitive impairment can be reduced if a practitioner engages in conscious reflective thinking that formalised mentoring can achieve. He also considered that the "excessive" characteristics of Dr Brittain, primarily that of an overwhelming desire to help others, are characteristics that Dr Brittain has the capacity to temper and utilise in a balanced manner. 6. In the context of his insight, there are two examples beyond the admissions made in the Reply to the present Application and his statement of evidence that should be noticed. First, the report from the investigator who first spoke by telephone to Dr Brittain in August 2015 described Dr Brittain as being "cooperative and helpful with respect to all inquiries made of him." That conduct is made apparent from the transcript of the interview that took place between Dr Brittain and the investigators on 9 December 2015. Second, his voluntary surrender of the right to prescribe Sch 4D and Sch 8 drugs is to be both noticed and applauded. 7. Dr Brittain also gave evidence that was not challenged, establishing that his personal life is now better settled. His children are now older and while CD and FG are not cured of the medical conditions that occasioned anxiety during their younger years, those conditions are now better managed. For his part, Dr Brittain has stabilised his practising circumstances by limiting his place of practise to the Randwick Medical Centre and controlling his working hours to a nine-day fortnight. 8. He has benefitted and continues to benefit from the mentoring relationship he enjoys with Dr Holloway. 9. We have earlier detailed the steps taken by Dr Brittain to improve his medical education, particularly that directed to prescribing practices for Sch 4D and Sch 8 drugs, pain management in patients and medical record keeping. The extent to which he has participated in programs or courses to improve his medical knowledge and practice over the past two years, coupled with his expressed desire to continue to do so, gives substance to his statement that he seeks to be "the best possible medical practitioner that I can be." 10. The Commission fairly recognises in its submission to us that Dr Brittain deserves some credit for the steps he has taken in this regard. That acknowledgement given, the Commission refers to the observations of Mahoney JA in Dawson v Law Society of New South Wales [1989] NSWCA 58 where his Honour said: "In judging whether an applicant will, in the future, act differently from the past, the Court is not required to act on psychological theories or analyses… As I have said, it is difficult to decide what a man will do and the decision in a particular case is "to a greater or lesser extent", dependent on the Court's assessment of the applicant. And in making that assessment it may draw inferences from what he has done in the past and, in particular, what led to his being removed from the role. An understanding of that may assist the Court to determine what are his standards and his understanding [of his] responsibility and, from this, what he is apt to do in the future. And it is perhaps, on this basis that, where what has been done in the past has been sufficient to indicate his 'probably permanent unfitness'…the Court will require solid and substantial grounds for the conclusion that his standards have changed or that he will act differently." 1. The Commission submits, in effect, that "solid and substantial grounds" have not been established, such that the Tribunal could have confidence that Dr Brittain will not revert to the conduct he displayed during the period the subject of the complaints when exposed to stress. We do not accept that submission. 2. The evidence that we have discussed as to the circumstances in which the impugned conduct of Dr Brittain occurred, his insight and remorse coupled with the steps he has taken to address the likely recurrence of his former conduct does, in the making of our evaluative judgment, provide "solid and substantial grounds" for concluding that, in probability, the misconduct of the kind that we have found will not recur. 3. We accept the submission made on behalf of Dr Brittain that, on the evidence before us, Dr Brittain does not currently pose a risk to the health and safety of the public. Further, the circumstances that gave rise to his misconduct can, in our opinion, be appropriately addressed by continuing the restriction upon his ability to prescribe Sch 4D and Sch 8 drugs for a further period and also by imposing a condition upon his registration that he continue to have a mentor to monitor stress that may be seen to impact upon his clinical performance. As well, a mentor is able to offer support and assistance in any clinical area where such assistance is identified as being required. We also consider that the observations of a mentor are likely to detect any deterioration in the well-being of Dr Brittain, avoiding the necessity to include in any condition upon his registration requiring a period of consultation with a psychologist. In that same context, the observations of Dr Lennings give support to our conclusion that mandating such consultations is unnecessary, given his opinion that the "single greatest safeguard" he could foresee for Dr Brittain is to engage in "reflective practice", achieved by a mentoring program. 4. In summary, for the reasons we have discussed, we do not consider it to be necessary to cancel Dr Brittain's registration in order to address protection of the health and safety of the public (Health Care Complaints Commission v Ly at [20]. The health and safety of the public is, in the circumstances, further secured by imposing conditions of the kind that we have discussed. While the Commission has made reference to the decision of the Court of Appeal in Health Care Complaints Commission v Litchfield, in the context of conditions we note the observations of Basten JA (McColl JA and Harrison J agreeing) in Health Care Complaints Commission v Wingate [2007] NSWCA 326 where his Honour said: "It might be argued from Litchfield that a condition should only be imposed to provide necessary protection to the patients of a practitioner, but that if such a condition is reasonably necessary, the practitioner must lack a precondition to entitlement to continued practice and accordingly the need to impose the condition demonstrates unfitness to practice. Clearly that reasoning is, when stated at that level of generality, fallacious. Conditions can be imposed in varying circumstances and for various purposes. The circumstances and purposes will always be important, in part because of the need for the Tribunal to be satisfied that the condition will be effective." For the reasons we have given, we consider the imposition of conditions of the kind discussed will be effective in the circumstances of this case.

CONCLUSION 1. The seriousness and complexity of the decision we are required to make cannot be understated. However, applying the statutory provisions to which we have referred, including those reflecting the discretion reposed in us by those provisions as to the content of protective orders, we are satisfied that the health and safety of the public will appropriately be protected if Dr Brittain maintains his registration, subject to appropriate conditions. 2. Apart from our primary focus upon the health and safety of the public, the references tendered to us make clear that Dr Brittain is considered both by fellow professionals and patients to be a highly competent, thorough and caring general practitioner. Subject to the safeguards that we have identified in the form of conditions, we do not see the necessity to deprive the community of the beneficial medical service that he has clearly provided and continues to provide to a large number of patients. 3. We intend that Dr Brittain be reprimanded. The ordering of a reprimand that follows a finding of professional misconduct in a decision published by the Tribunal imparts a clear deterrent message to other professionals that conduct of the kind found against Dr Brittain will not be tolerated. The reprimand together with our published finding of professional misconduct confirms the seriousness and unacceptability of that conduct. Maintenance of the highest standards of the medical profession and the public confidence in the profession are not diminished in the circumstances in which we make the orders proposed in these proceedings.

COSTS 1. The Commission seeks an order that Dr Brittain pay its costs of these proceedings. The power of the Tribunal to make such an order is found in cl 13 of the Sch 5D of the National Law. Subclause (1) of that clause vests discretion in the Tribunal to order a party to pay costs to another party "as decided by the Tribunal". The clause is expressed to apply instead of s 60 of the Civil and Administrative Tribunal Act 2013 that would otherwise apply. 2. We do not understand Dr Brittain to oppose the making of an order for costs. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court determined at [42] that, as a general rule in proceedings of the present kind, "costs of proceedings before the Tribunal should follow the event". That is the position we propose to take in the present case.

ORDERS 1. For the reasons we have stated, the Tribunal makes the following orders: 1. The Respondent Dr Nicholas Brittain be and is hereby reprimanded under s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW). 2. The conditions set out in the Schedule headed "Health Care Complaints Commission v Dr Nicholas Brittain – Conditions" (the Conditions) be imposed on the Respondent's registration and be operative 28 days after the making of these Orders. 3. The Conditions may be altered, varied or removed at the discretion of the Medical Council of New South Wales and the Council is the appropriate review body for the purposes of Div 8 of Pt 8 of the Health Practitioner Regulation National Law (NSW). 4. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply while Dr Nicholas Brittain's principal place of practice is anywhere in Australia, other than in New South Wales, so that a review of the Conditions can be conducted in that circumstance by the Medical Board of Australia. 5. Order that the Respondent pay the Applicant's costs of these proceedings as agreed or assessed.

SCHEDULE

Health Care Complaints Commission v Dr Nicholas Brittain – Conditions 1. The Respondent must: (a) within 21 days from the date of the decision of the Tribunal pursuant to which this condition is imposed, nominate an experienced general practitioner to act as his professional mentor for approval by the Medical Council of New South Wales (the Council) in accordance with the Medical Council's Compliance Policy – Mentoring (as varied from time to time); (b) authorise the Medical Council to provide to a proposed and approved mentor a copy of the decision of the Tribunal pursuant to which this condition was imposed; (c) meet with the mentor for a minimum of 1 hour every fortnight for an initial period of 12 months from the date of the first mentoring session and thereafter for such a period as the Council may determine; (d) at each mentoring session include discussion on prescribing to drug dependent patients; assessment and management of drug dependence, chronic pain and anxiety, identification of drug-seeking patients as well as any personal or other clinical issues that may arise; (e) authorise the mentor to report, in an approved format, to the Council every three months, for an initial period of 12 months as to the fact of contact and to inform the Council if there is any concern about Dr Brittain's professional conduct, health or personal wellbeing; (f) authorise the mentor to notify the Council of any failure by Dr Brittain to attend a mentoring session or the termination of the mentoring relationship against the advice of the mentor or of any other matter the mentor considers to be appropriate; (g) in the event that the approved mentor is no longer willing or able to continue as mentor, nominate another mentor for approval by the Council within 28 days of the cessation of the original mentor relationship; and (h) to be responsible for any costs associated with the mentoring relationship. 2. The Respondent must not possess, supply, administer or prescribe any 'drug of addiction' (Sch 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW). 3. The Respondent must not possess, supply, administer or prescribe any substance listed in Sch 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008. 4. The Respondent must authorise and consent to any exchange of information between the Medical Council and Medicare Australia for the purpose of monitoring compliance with these conditions. 5. The Respondent must work no more than 90 hours per fortnight, with no single shift to exceed more than 9 hours. 6. The Respondent must: (a) submit, at his expense. to an audit of his medical practice by a random selection of his medical records to be undertaken by a person or persons nominated by the Medical Council, such audit to be undertaken within 9 months from the date of the decision pursuant to which this condition is imposed and subsequently as required by the Council on the understanding that the auditor is to assess the Respondent's compliance with good medical record keeping standards as well as the relevant legislative requirements; and (b) authorise the auditor to provide the Medical Council with a report on his/her findings.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 16 October 2019