Are you abiding by legislative requirements when prescribing drugs of addiction to patients?
It is widely accepted that medical practitioners are entrusted to prescribe drugs of addiction to patients. Many medical practitioners however are often unaware that such an entitlement involves a corresponding duty to abide by legislative requirements.
In certain circumstances, if a medical practitioner intends to prescribe a drug of addiction to a patient, an authority is required to be obtained by a medical practitioner. Medical practitioners must bear in mind that the requirements for obtaining an authority differ in each state and territory.
In New South Wales, pursuant to section 28 of the Poisons and Therapeutic Goods Act 1966, medical practitioners are required to submit an application to the NSW Ministry of Health for an authority to prescribe or supply a drug of addiction to either a drug dependent person, or to a non-drug dependent person who is prescribed with specified drugs of addiction continuously for more than two months (‘Authority’).
The equivalent provisions in Victoria are set out in Schedule 8 of the Drugs, Poisons and Controlled Substances Act 1981. Medical practitioners in Victoria must apply for a permit to administer, supply or prescribe drugs of addiction.
In Queensland, section 120 of the Health (Drugs and Poisons) Regulation 1996 imposes an obligation on a doctor or nurse practitioner who intends to administer, dispense, prescribe or supply a controlled drug (S8) in the treatment of a patient for more than 2 months or reasonably suspects a patient has been treated with a controlled drug (S8) for more than 2 months and that doctor or nurse practitioner intends to administer, dispense, prescribe or supply a controlled drug they must immediately give notice in writing to the Chief Executive.
The traits of a drug dependant patient vary however it is common for a drug dependant patient to request specific medication (often by name) from a medical practitioner, claim that various other techniques have been ineffective for their pain management, suggest that the only possible solution for their treatment is prescription medication and / or claim to have lost prescriptions or misplaced their medication.
An Authority is independent from an authority from Medicare for the purposes of a subsidy under the Pharmaceutical Benefits Scheme (‘PBS’). Further, making an enquiry with Medicare’s Prescription Shopping Information Service, which advises whether the patient has been identified as a ‘Doctor Shopper’ within the past three months, does not substitute the need to obtain an Authority to prescribe.
Between 2012 and 2015, the majority of complaints which were referred to the Director of Proceedings of the Health Care Complaints Commission (‘the Commission’) for investigation concerned the professional conduct of a health practitioner, including prescribing medication without a proper authority or therapeutic basis.
In the financial year 2014/2015, 3.5% of the complaints received by the Commission related to the prescribing of medication. Whilst over half the complaints in relation to the prescribing of medication were discontinued, 17% were referred to a professional council and 8% were ultimately investigated by the Commission.
In recent years, a number of cases have been heard before the NSW Civil and Administrative Tribunal (‘the Tribunal’) in relation to the prescribing practices of health practitioners.
In the Commission v Lo  NSWCATOD 119, Dr Lo’s registration was cancelled by the Tribunal on the basis that his conduct in relation to the prescribing of Schedule 8 and Schedule 4D drugs, and his failure to maintain adequate medical records, constituted unsatisfactory professional conduct and professional misconduct.
It was alleged that Dr Lo prescribed Schedule 8 and Schedule 4D drugs:
- Without performing an appropriate medical assessment prior to issuing such prescriptions;
- Without obtaining an Authority;
- Inappropriately in a quantity for a purpose that does not align with recognised therapeutic standards;
- When the prescription was contraindicated as he ought to have known that the drugs prescribed were being, or were likely to be, abused;
- In an inappropriate combination; and
- Without referring to a specialist for treatment review and / or advice.
The Tribunal found that Dr Lo was unclear as to the identification of a drug dependant patient and believed that obtaining a Medicare authority to prescribe PBS drugs also allowed him to prescribe Schedule 8 and Schedule 4D drugs.
In the Commission v Mobilia  NSWCATOD 52, the Commission alleged that Dr Mobilia did not obtain authorities to prescribe methadone, diazepam, oxycodone, fentanyl, buprenorphine and morphine to patients, including in circumstances where the patients were on the Opioid Treatment Program, prescribed the drugs without a proper assessment or without exercising proper medical judgment and prescribed the drugs without seeking specialist input / advice or for a purpose that did not accord with therapeutic standards.
The Tribunal held that Dr Mobilia’s conduct constituted professional misconduct. However, as Dr Mobilia had taken a number of steps to improve his prescribing practices including completing a course in relation to prescribing and surrendering his rights to prescribe Schedule 8 and Schedule 4D drugs, the Tribunal determined to impose conditions on Dr Mobilia’s registration as opposed to suspending or cancelling his registration.
The Tribunal did express concern that Dr Mobilia was not aware of the legislative requirement to obtain an Authority to prescribe a drug of addiction to a drug dependant person prior to being investigated by NSW Health’s Pharmaceutical Services Unit.
Medical practitioners should exercise caution when patients request prescriptions for specific drugs and doses and consider the most appropriate manner of management of those patients’ pain. Medical practitioners should also ensure their record keeping practices are at an appropriate standard to ensure drug dependant patients are easily identified.
Despite a medical practitioner’s best intentions, there is more often than not no reasonable excuse for failing to adhere to the legislative requirements in relation to prescribing drugs of addiction.
Dominique Egan, Partner
Patricia Marinovic, Solicitor