This is an appeal against a refusal by the Medical Board of Australia to grant an application for reregistration as a medical practitioner on the ground of impairment.
[2]
Background
The appellant is CWV, born 1966. He first qualified and practised as a medical practitioner in Iraq in 1990. His experience in the period 1990-98 included medical rotation through various hospital departments at Saddam Teaching Hospital, Baghdad, Iraq (1990-92) and as a general practitioner at a Medical Centre in Libya (1995-96). He undertook compulsory military service in Iraq between 1992 and 1994, and worked as a doctor.
He came to Australia in 1998. His refugee claim was accepted. He now has permanent residence. He completed his English language qualification during 1998 and passed the Australian Medical Council exams in 1999. He obtained registration as a medical practitioner in Victoria in 1999, and in New South Wales in 2001. He held his NSW registration until 2003.
Between 1999 and 2001 he worked at the Wangaratta Base and Werribee Mercy hospitals in Victoria. Between 2001 and 2003 he worked in New South Wales at the Campbelltown Hospital as a resident medical officer. In his CV for these proceedings, he stated that he worked as a volunteer in Iraq during the war there, 2003-05. He returned to Australia in 2005 but did not seek to reregister as a medical practitioner.
Part 5, Division 6 (ss77-85) of the Health Practitioner Regulation National Law (NSW), No 86a (the National Law) regulates applications for registration in the health professions. The appellant applied under s 77 for registration on 23 February 2015. He acknowledged that he had an impairment, which he described as post-traumatic stress disorder (PTSD) connected with his experiences in the Iraq war. He acknowledged a history of homelessness since 2007 and an offence of destroying public property and breaching bail conditions during his period of homelessness.
The appellant's application was supported by Dr Andrew Wilson, Consultant Psychiatrist, St Vincent's Mental Health Service, by a report dated 13 April 2015.
In Dr Wilson's opinion, the appellant suffered from post-traumatic stress disorder (PTSD), connected with his experiences in the Iraq war. By the time of his diagnosis by Dr Wilson, the appellant had taken significant steps in stabilising his life and dealing with his condition. Dr Wilson now considered that the appellant was fit to return to employment in a supervised setting in clinical medicine.
On 2 June 2015 the Board's Registration Committee decided, as permitted by s 80, to defer a final decision, pending an independent health assessment of the appellant. The assessment was undertaken by Dr Anthony Samuels, Consultant Psychiatrist, St Leonards.
In his report dated 3 September 2015 (tab 5 in the material before us) Dr Samuels outlined the appellant's personal and psychiatric history.
Since returning to Australia in 2005 the appellant has had a number of episodes of acute agitation. He has been assessed as having psychosis. He has presented to hospital on several occasions, often in the aftermath of acts of aggression (towards objects not people). In the years immediately preceding his attendance on Dr Samuels he had received hospital treatment on several occasions (2012, 2013, 2014 (three times) and 2015). He has since had treatment again, in May 2016.
Dr Samuels differed from Dr Wilson's conclusion. He said that the appellant 'did not have any clear features of PTSD apart from nightmares and some problems with anger'. Dr Samuels reported the appellant as experiencing disturbances of the mind which Dr Samuels described as 'visual perceptions of presidents and other people and also messages in relation to aeroplanes and political figures'. He reported the appellant as acknowledging 'that these phenomena are quite frequent and they cause him some stress' and 'the feelings of stress are quite similar to what he experienced in the past and are accentuated by his concerns about what is happening in Iraq'.
Dr Samuels concluded that the appellant was 'suffering from a psychotic illness, most likely a paranoid-type schizophrenia'. He added: 'It is also possible there is a component of post traumatic stress in light of experiences he had in Iraq in 2003 to 2005'.
Dr Samuels expressed 'concerns about [the appellant's] current fitness to return to medical practice in light of these ongoing mental state disturbances'. He expressed the view that the appellant suffered from an 'impairment' within the meaning of the National Law. Section 5 provides relevantly:
impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect -
(a) for a registered health practitioner ..., the person's capacity to practise the profession;
Dr Samuels described the appellant's impairment as a 'psychotic illness'. He said he 'had concerns about the potential impact on his functioning as a medical practitioner as well as the fact that he has not practised medicine for many years'.
On the basis of Dr Samuels' report, the Board resolved on 20 October 2015 to make a preliminary decision to refuse the application on the ground of impairment. It gave the appellant notice of its proposed decision, and allowed him 30 days to respond with any submissions. The appellant responded on 16 November 2015. He referred to a number of matters including: that he had been studying medicine again since January 2015 via online services and books; that he had joined the JobSearch network and was looking for work; that he is recovering well from PTSD; he was doing interesting work in the community and engaging in sport; that he is now settled in his accommodation and living in a 'nice unit' in Redfern; that he is attending and receiving treatment from Redfern Mental Health Service.
He supplied a reference from the 'Milk Crate Theatre', which is based at the Alexandria Town Hall. The writer, Sarah Emery, associate director, stated that this is 'Australia's leading theatre company working with an ensemble of artists with the lived experience of homelessness'. She referred very positively to the work that the appellant had done with the company since 2007, and his wide participation in the various activities of the company.
She described him as a 'conscious, considerate and kind person' who is 'extremely reliable and is always making others in the group feel safe and welcome'. She referred to his 'great leadership style' and his 'creative, confident and empathetic' manner.
He also supplied a reference from Michael Tang, Wesley Mission Chaplain, Edward Eagar Lodge, Surry Hills. He advised that since 2014 the appellant has regularly attended church services at the Mission, and engaged in other activities such as Bible study. He described him as 'a delight to have around'. He said that he brought insight to discussions and 'speaks honestly and reflectively'. He said that there was 'never any malice or aggression in his conversation'.
Daniel Sansom, Support Facilitator, Eastern Sydney Partners in Recovery, also provided a reference. Mr Sansom advised that his organisation had been assisting the appellant for some time. He referred to his history of homelessness, mental difficulties and medications. He referred to his path to recovery, and described him as 'an extremely highly functioning person within society, requiring no professional or community supports'.
On 15 December 2015, the Board made its final decision. Section 52 deals with eligibility for registration. A person is only eligible for registration if he or she is 'a suitable person to hold general registration in the [relevant] health profession': s 52(1)(c).
Section 55(1)(a) of the National Law provides that a National Board may decide that:
an individual is not a suitable person to hold a general registration in a health profession if - (a) in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk.
The Board decided that the appellant was not eligible for registration as he had an impairment in the degree to which s 55(1)(a) refers.
[3]
Appeal
The appellant now appeals to the Tribunal, as permitted by s 175 of the National Law. He lodged his appeal on 22 December 2015. The Tribunal heard the appeal on 25 August 2015. Ms Bennett of counsel appeared for the Board. The appellant appeared in person.
In support of his appeal the appellant relied essentially on the three references presented to the Board in reply to its preliminary decision (from Ms Emery, Chaplain Tang, and Mr Sansom), and his personal testimony.
The Tribunal had before it a three volume bundle of relevant documents, filed by the Board. The material included a further report from Dr Samuels (24 June 2016, tab 17). The appellant gave evidence, and was questioned. The appellant asked questions of the other witnesses called, as did the members of the Tribunal. The other witnesses were: Dr Samuels (by telephone link); Mr Sansom, previously mentioned (by telephone link); and Dr Wilson.
The Tribunal in an appeal of this kind hears the appellant's case afresh. It is not bound in any way by the decision of the Board: for a recent discussion, see D'Rozario v Dental Board of Australia [2015] NSWCATOD 19 at [4]-[5]. Section 175C provides that after hearing the matter the Tribunal may confirm or amend the decision under appeal, or substitute another decision for that decision. The Tribunal also has power to make any order about the costs of the proceedings it considers appropriate (s 175B).
Dr Samuels: The appellant attended on Dr Samuels for further assessment on 24 June 2016. Dr Samuels had in addition the material placed before the Board by the appellant. Importantly, he had the clinical records of the treatment provided to the appellant at St Vincent's Hospital commencing in 2008. He also had the medical records of treatment provided by Royal Prince Alfred Hospital, particularly in the period October 2015 to May 2016. He had a copy of the Redfern Community Mental Health Centre records covering the period 30 October 2015 to 18 February 2016.
Dr Samuels referred positively in his report to the appellant's manner during the consultation. He noted the appellant's advice that he was sleeping well, eating well and his weight being stable. Dr Samuels, however, stated that had 'serious reservations about [CWV's] current fitness and capacity to practise medicine'. He stated that: 'He continues to manifest a markedly unstable mental state.' He referred to recent events where he had thrown objects out of a 13th floor window, his experience of surges of anger that relate 'to various external factors impacting upon his psychology and psychodynamics'. Dr Samuels concluded that the appellant suffers from 'a serious mental illness', regardless of whether the diagnosis is schizophrenia or PTSD. He gave a number of bases for this opinion:
The very serious decline in his psychosocial functioning leading to homelessness
The number of admissions he has had to psychiatric facilities with psychotic symptoms
The fact that he has acted on psychotic perceptions and phenomena in an aggressive way, and damaged property, and placed other people at risk.
At the hearing Dr Samuels reiterated this opinion. He had traced the appellant's difficulties with delusional perceptions back as far as his time as an intern at Wangaratta Hospital (1999). The appellant had also referred to receiving mental health assistance in Iraq in 2003. He tended to the view that 'chronic psychotic illness' might be the best diagnosis of the appellant's condition. He noted that while the appellant might indeed suffer from PTSD, it did not account for the full range of symptoms, which include 'very unusual phenomena' that exceed those of PTSD alone.
He noted the history of 'disturbed' and 'bizarre' behaviour, at times resulting in property damage, which were often related to delusions about being manipulated or controlled by technology. He noted that when the appellant becomes preoccupied and overwhelmed he loses judgement about his behaviour. He was concerned that in a hospital environment surrounded by equipment of various kinds, he might be affected by such delusions, could lose judgement, act out in an aggressive way and engage in damaging action to himself or others with the equipment.
He stated that the appellant had been quite frank in sharing his experiences with him, and clear about having thoughts involving 'cyber-inventions, manipulation' and so on. He saw him as affected by 'grandiosity' and 'thought disorder'. As to his insight, he noted that the appellant does not accept that he has schizophrenia, or has a serious condition that needs treatment. He had, in Dr Samuels' opinion, no sense of his current mental illness or that it could affect his ability to practise safely.
In his questioning of Dr Samuels, the appellant challenged some of Dr Samuels' conclusions, and referred to his community activities and plans for the future. In reply, Dr Samuels referred to the recent frequency of the appellant's hospital admissions. In answer to questions from the Tribunal, Dr Samuels also raised, as he had in his reports, the issue of his capacity now to return to the practice of medicine even if his mental illness could be satisfactorily managed. He noted that the appellant remained unwell even on current treatment with antipsychotic medication.
In Dr Samuels' view he had had no verifiable practice history since about 2002. Further the psychoses from which he had suffered in the meantime will themselves have likely had an impact on his cognitive function and his capacity to resume the practice of medicine. He emphasised that his capacity to practise safely could not be ascertained until he had been adequately treated. He also noted that he was currently too unwell to be able to be managed via the Medical Council's health program.
Dr Wilson: Dr Wilson advised the Tribunal that he had reconsidered the opinion he had expressed in his report of April 2015 in support of the appellant's application to the Board. In a letter to the Tribunal dated 23 August 2016, and handed up at hearing, he retracted his previous opinion that the appellant might be suitable for return to practice on a limited basis. He had had regard to the detailed assessments provided by Dr Samuels, and the other material appearing in the volumes filed by the Board for our hearing. He had seen the appellant since making his report of April 2015, most importantly on the occasion of his discharge from RPA on 12 October 2015. He had spent three days in RPA as a voluntary admission after destroying property at home, and experiencing strange dreams and delusions. Dr Wilson advised that he had no ongoing clinical relationship with the appellant.
[4]
Whether the appellant has an Impairment
At hearing, the appellant spoke relatively dispassionately about his circumstances and health difficulties. He acknowledged that he had a significant mental issue to address and manage. He felt he had made considerable progress, and his references provided support in that regard. He dealt with the questions asked by the Tribunal in an affable way. He spoke very good English, but there was evidence of thought disorder, consistent with psychotic illness and a degree of cognitive dysfunction.
While the appellant has undertaken commendable steps to get his life back in order and obtain treatment, there remain, regrettably, a number of troubling events within the last three years. They include his four voluntary admissions to the RPA (27 May to 29 May 2014, 29 September to 28 October 2014, 9-12 October 2015, 28 April to 4 May 2016), two of which were after incidents of violence involving damage to property in response to feeling influenced by external forces.
The expert evidence is in this case overwhelming. Dr Samuels and Dr Wilson agree that the appellant has a serious psychotic disorder that is chronic. We support that view for the reasons given by Dr Samuels and supported by Dr Wilson.
We agree with the Board that the appellant has an impairment with the meaning of s 5 of the National Law. He has a disorder which, we are satisfied, is likely to detrimentally affect his capacity to practise as a medical practitioner.
[5]
Whether the impairment renders the appellant not suitable to practise medicine
The key issue before us is whether the impairment is of such a degree that it is necessary to refuse the appellant's application for reregistration. Many impairments can be managed satisfactorily by imposing conditions on registration and prescribing a program of supervision and reporting.
Section 55(1)(a) provides, as previously noted, that an individual may be found not to be a suitable person to hold a general registration if he or she 'has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk.'
We are satisfied that the appellant has a chronic psychiatric disorder with documented episodes of psychosis. He has a long history of erratic and disturbed behaviour, dating from 2008 (according to local medical records) and from at least 2003 (according to the history given by the appellant to Dr Samuels).
His episodes of psychosis are associated with unpredictable acts of aggression that have posed a risk to the public and at times have resulted in criminal charges (sometimes dismissed due to his psychiatric history)
He is not presently engaged in adequate, stable or effective treatment structure.
He has also now has a long history of non-compliance with treatment dating from 2003 (according to the history given by the appellant to Dr Samuels).
There have been three episodes of psychosis in the past year alone (November 2015, February 2016 and May 2016), associated with aggression resulting in emergency psychiatric admissions as an involuntary patient. Dr Samuels describes his mental state as 'markedly unstable'.
When unwell the appellant exhibits extremely poor judgement.
His many years of psychosis and deteriorated function (eg homeless for seven years) are, we consider, likely to have had an impact on his cognitive function. He has ongoing thought disorder (evident at the hearing as well as documented in the psychiatric evidence) indicative of degree of cognitive dysfunction.
He continues to have a lack of insight into his condition, for example, he believes that he has PTSD alone and does not acknowledge any of the concerns above. Even if he does have PTSD (as he probably does), this alone cannot account for the history of disturbed, aggressive, bizarre and at times dangerous behaviour.
In our view, this is an extreme case. We agree with the Board's conclusion that the appellant is not a suitable person to hold registration. We are satisfied that his impairment is one that would detrimentally affect his capacity to practise medicine to the extent that it would or may place the safety of the public at risk. We do not consider this to be a case where a set of protective conditions would be sufficient to eliminate or minimise to an acceptable level the risk to the safety of the public.
The Board did not seek costs.
[6]
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: 23 December 2016
He now agreed entirely with Dr Samuels' opinion that the appellant suffers from a 'chronic psychotic illness'. He noted that PTSD and psychosis are not mutually exclusive. He said he would have reached the same conclusion as Dr Samuels on the same body of material.
In conclusion he acknowledged that a chronic illness can have periods of relative stability, and there are treatments that would enable the appellant to achieve amelioration, leading possibly to a reconsideration in the future of his fitness to practise. At present, however, he would be concerned about his history of impulsivity, random aggression, thought disorder and ongoing psychotic phenomena, all of which are 'indicative of impairment of higher order executive function'.
Mr Sansom: Mr Sansom's evidence was along similar lines to his reference. He did not claim to have any special expertise in the diagnosis of mental illness, but had worked to assist people with mental health issues for many years. As we understand it, his work was along similar lines to that of a social or community worker. He referred to his association with the appellant's case and needs. He spoke positively of the steps he has taken to get his life back in order.
The appellant: The appellant acknowledged that he had a condition which he would describe as stress which is trauma related. He stated that he did not have schizophrenia and had not been psychotic. He spoke of 'seven years on the street, battling with medicines'. He referred to his current treatment plan and activities. He was receiving ongoing treatment from Dr Hance, at Redfern Community Mental Health Centre. He saw him every month. He described his past aggressive outbursts as 'appropriate' and as 'a defensive reaction'.
He is involved with Wesley Mission, as explained by Chaplain Tang in his reference, and the theatre company, as well as sport. He has done work at the Matthew Talbot Hostel and the Wayside Chapel. To maintain his medical knowledge, he uses special apps on his iPhone to keep in touch online. In answer to questions from the Tribunal, he referred to his current medications, and his view that his condition was one of PTSD. He conceded that he did not have many friends or associates today that belonged to the medical profession. He concluded, 'Time is time. Time is power. Time is time.'