No costs for appeal of S8, S4D ban

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A Sydney GP will not receive payment of costs by Medical Council of NSW following Impaired Registrants Panel, but he will be allowed to continue prescribing S8 and S4D drugs

A medical practitioner has retained his authority to prescribed Schedule 8 and Schedule 4D drugs following an Impaired Registrant’s Panel, although he still has several conditions on his registration.

The Pharmaceutical Regulatory Unit (PRU) made a complaint about the Sydney GP in October 2018 after a pharmacist noticed the GP was displaying “slurred speech, glassy eyes and a staggering gait” when he collected prescriptions on one occasion.

The PRU also alleged the practitioner prescribed drugs for a close family member including 10 prescriptions for oxycodone, and presented prescriptions for oxycodone and alprazolam “For doctor’s use only”.

After the Medical Council instigated proceedings in November 2018, the practitioner underwent positive drug tests showing use of cocaine.

He subsequently conceded he had used a “small amount of cocaine” at music festivals in 2018 and ecstasy at a festival while overseas in July 2018.

On 10 December 2018, following the hearing under s 150 of the National Law, four conditions were recorded on the register maintained by the Australian Health Practitioner Regulation Agency (AHPRA).

In broad terms the conditions required the practitioner to practise in accordance with guidelines for self-treatment and treatment of relatives, to advise the Council of any change in the nature or place of the practitioner’s practice and to provide authority for exchange of information between the Council and Medicare. A mentoring condition was also imposed.

In August 2019, the doctor attended the offices of the PRU and consented to an order made under the Poisons and Therapeutic Goods Regulation 2008 (NSW) prohibiting him to possess, supply, administer or prescribe Schedule 8 and Schedule 4D drugs.

The reason why the Medical Council of NSW had imposed these further conditions included the evidence of the GP’s “serious issues with prescribing” referring to his prescribing of oxycodone.

Following this, the GP filed an appeal of these conditions, but a tribunal refused a separate application for a stay on the conditions.

In October 2019 an Impaired Registrants Panel (IRP) was convened, which determined to impose several conditions upon his registration, including that he practise in accordance with the current Medical Council of NSW’s Guideline for self-treatment and treating relatives.

However these conditions did not include the “further conditions” which prohibited him from possessing or supplying any S8 or S4D drugs.

The GP argued before the NSW Civil and Administrative Tribunal that he had been wholly successful in that the Council did not ultimately require the “further conditions” banning him from prescribing S8 and S4D drugs following the hearing before the IRP.

He argued that due to his success, his costs for the appeal should be paid by the Medical Council.

Further he submitted that it had been open to the Council not to impose the further conditions until after the IRP hearing—had it done so there would have been no need for the GP to lodge the appeal in the first place.

He sought an order that the Medical Council of NSW pay his costs of the appeal which was ultimately dismissed, by consent.

Acting NSW District Court Judge Mark Le Poer Trenchdid not find that either party had acted unreasonably in the circumstances.

He added that the IRP had the advantage of being able to hear from the GP and therefore had the capacity to consider matters which may not have been available to those officers Medical Council of NSW who had initially imposed the “further conditions”.

“I conclude therefore that the Tribunal should make no order as to costs, as regrettable as that may be to the applicant,” found the Hon. Le Poer Trench, a Principal Member of the Tribunal.

“Both parties have clearly incurred legal cost in preparing for the hearing before the Tribunal … and thereafter complying with the directions made on that day which required substantial legal work to be undertaken to be ready for the expedited hearing of the applicants’ appeal. That work needed to be completed before the hearing by the IRP took place.”

He ruled the application for costs of these proceedings to be dismissed.

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