Goh v Medical Council of New South Wales [2016] NSWCATOD 92 | Case summary

To authorise the Council to forward copies of decisions, reports and any other information relevant to her health and treatment to the Council appointed practitioner and to her treating practitioners. Catchwords: Administrative Law- Civil and Administrative Tribunal Act 2013- application for re-instatement to Medical Register of practitioner-whether applicant fit and proper person to be re-instated-costs Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Practitioner Regulation National Law (NSW) Cases Cited: Bahramy v Medical Council of NSW [2014] NSWCATOD 116 Roberts v Medical Council of NSW [2015] BSWCATOD 35 HCCC v Goh [2014] NSWCATOD 106 Dawson v The Law Society of NSW[1989] NSWCA 58 HCCC v Philipiah [2013] NSWCA 342 Donnelly v HCCC [2014] NSWCATOD 155 Ristevski v Medical Council of NSW [2016] NSW 18 Category: Principal judgment Parties: Wendy Goh (Applicant) Medical Council of NSW (Respondent) Representation: Counsel; S Barnes (Applicant) P Lowson (Respondent)

REASONS FOR DECISION

The Applicant, Wendy Goh, has applied to the Tribunal for an order that she be re-instated to the Register of Medical Practitioners subject to conditions.
That application, filed in December 2015, followed proceedings in which the Tribunal made orders pursuant to s 149C of the Health Practitioner Regulation National Law including an order that she be disqualified from being registered as a medical practitioner for a period of one year commencing from 26 September 2014 (see Health Care Complaints Commission v Goh [2014] NSWCATOD 106).
At the 2014 proceedings in the Tribunal Ms Goh faced five allegations that were particularised in detail. The HCCC alleged conduct that constituted unsatisfactory professional conduct and professional misconduct. Ms Goh admitted four of the allegations concerning her conduct but did not admit that she was not fit to practise medicine because she suffered from an addiction to and abuse of benzodiazepines and zolpidem and major depressive episodes with anxiety and panic attacks. In relation to this particular she left it to the Tribunal to determine her fitness to practise medicine. The Tribunal noted that her counsel indicated that this response was intended to convey that while Ms Goh did not deny the substance of this allegation, it was not admitted and the HCCC was put to proof of it.
The 2014 decision of the Tribunal noted that in her July 2014 statement Ms Goh acknowledged that she was not fit to practise medicine at the present time and admitted that she was suffering from an impairment within the meaning of the National Law. She accepted that her impairment continued to affect her ability to practise medicine. Indeed, after proceedings were initiated in the Tribunal, in late July 2014, upon her own request Ms Goh had her name removed from the register of practitioners.
In the statements she filed for the purposes of those proceedings, Ms Goh expressed her intention not to appear before the Tribunal or to give evidence at the hearing. In the present proceedings Ms Goh stated that she had acted on the advice of her then legal representatives in declining to appear or give evidence in the 2014 case.
Briefly stated, the four admitted particulars alleged: firstly, that the practitioner had engaged in improper or unethical conduct relating to the practice of medicine in that she wrote false prescriptions in order to obtain drugs and gave false information to her then treating psychiatrist and wrote false medical certificates in the name of her general practitioner; secondly, that the practitioner contravened conditions to which her registration was subject, being conditions relating to her possession, injection and prescription of Schedule 4 and Schedule 8 drugs, to urine drug testing and to treatment and supervision; thirdly, that she had engaged in professional misconduct having regard to the particulars of allegations 1 and 2; and fourthly, that she had an impairment within the meaning of s 5 of the National Law that detrimentally affected or was likely to detrimentally affect her capacity to practise medicine in that she suffered from an addiction to and abuse of benzodiazepines and zolpidem, and major depressive episodes with anxiety and panic attacks.
The above summary should not be permitted to gloss over the seriousness and extent of the conduct. There were more than 30 instances particularised under the first complaint and over 60 instances identified under the second complaint. A more complete understanding of the seriousness of Ms Goh's conduct will be reached only upon a careful reading of the entire 2014 decision of the Tribunal. For present purposes , however, it is worthy of note that the Tribunal concluded that Ms Goh had a history of abuse of benzodiazepines that brought her before the Medical Council pursuant to s 150 of the National Law on four occasions between May 2011 and August 2012. In October 2012 her registration was suspended. In the earlier proceedings extensive conditions were imposed on her registration by the Medical Council.
In weighing the evidence the Tribunal concluded that Ms Goh's acceptance of four of the complaints itself led to findings of unsatisfactory professional conduct and professional misconduct. The undisputed details of the complaints demonstrated dishonesty, prolonged and repeated disregard for acceptable personal and professional standards, a lack of understanding of the public interest in ensuring professional standards and an inability to fully confront the seriousness of her actions upon others, rather than only upon herself.
During the 2014 proceedings the Tribunal considered evidence from a small number of medical practitioners. In particular the Tribunal had a series of reports from Dr Susan Messner, a consultant psychiatrist, who had been appointed by the Medical Council in 2009 to examine Ms Goh and report to the Council regarding her self prescription and use of temazepam to help her sleep and her inability to cope with work.
In April 2014 Dr Messner noted a history of appearances before the delegates of the Medical Council pursuant to s 150. Concern was expressed at the contradiction between the history given by Ms Goh in June 2012 and the history given at the most recent interview regarding the same events, namely her recent holiday, her general psychological and physical health and her enjoyment of her work situation. In June 2014 Dr Messner concluded that Ms Goh continued to suffer from an impairment as defined in the National Law. She suffered from an abuse of and an addiction to sedative hypnotics and if there were clear urine testing she could be considered to be in the early stages of remission. However, in a report dated in late July 2014 Dr Messner considered that Ms Goh was not competent to practise medicine because she lacked sufficient physical or medical capacity to do so.
The Tribunal noted that Dr Messner did not believe that Ms Goh had presented in a frank manner when discussing her abuse of sedative hypnotics, her behaviour to obtain these substances and was also concealing her illness. Monitoring conditions had failed to deter her use of these substances. She was reluctant to accept that she had been addicted.
Dr Messner had been asked by Ms Goh's legal representatives to provide an on-going assessment and opinion of her health and her ability to practise medicine. Dr Messner's report, also provided in July 2014, referred to Ms Goh's failed application in April 2014 to secure the lifting of the suspension on her registration. Ms Goh had stated that the application had failed because some of her urine specimens were found to be diluted. She was prohibited from reapplying for registration for six months. In concluding that Ms Goh was currently suffering from an impairment and from abuse of and addiction to sedative hypnotics, Dr Messner expressed the opinion that before she was to be considered fit to resume practice Ms Goh should be required to undertake six months of tests performed in strict compliance with the protocol laid down by the Medical Council for urine drug testing. Dr Messner was aware that Ms Goh had possession of testing kits that she had taken to local pathologists to give her samples and noted that such a practice was contrary to the Council's protocol regarding chain of custody
Having briefly set out the history of Ms Goh's path to de-registration, it is necessary to consider the evidence called in her present application for re-instatement to the Register of Medical Practitioners. In support of the application Ms Goh filed two statements. In her first statement she set out her personal history from graduation in 1996 and GP training for six months in 2000 through to working as an accredited anaesthetics registrar in 2002. From January 2006 until July 2007 she worked as an accredited anaesthetics provisional fellow. From July 2007 until February 2009 she worked as a staff specialist and a VMO anaesthetist in four different hospitals but now regarded this "hard work" as spreading herself too thinly.
In early 2009 Ms Goh was diagnosed with Raynaud's Syndrome. Suffering from this condition and working in the cold environment of surgical theatres caused difficulties for her ability to perform duties requiring manual dexterity and the writing and drawing up of medications. In early 2009 she decided to work 3 days a week at two hospitals plus occasional locum work. At this time she felt "very overwhelmed" and at the same time ended a relationship. She started to become depressed and anxious and was notified to the Medical Board regarding her mental health. Ms Goh was then assessed by Dr Messner who concluded that she was not impaired. The Board took no further action.
In August 2010 Ms Goh ended a "very tumultuous relationship" with a man after she found out that he was married with children. The man's wife applied for an AVO against Ms Goh in relation to telephone calls she had made to the wife. In October 2010 she commenced attending upon a psychiatrist, Dr Howpage. It was about this time that she was diagnosed with Major Depression. Between October 2010 and January 2011 she consulted Dr Howpage on 3 or 4 occasions.
From early 2011 her depression and anxiety increased with symptoms of being unable to sleep and being fixated on sleeping. She began abusing benzodiazepines as a way to sleep and to cope with stress. She obtained medication by forging her father's signature on his prescription pads and by writing prescriptions on her own pad in the name of fictitious patients. After being contacted by Pharmaceutical Services regarding her self prescriptions, Ms Goh self reported to the Council and surrendered her prescribing rights of schedule 4D medication. Without those prescribing rights she could not work as an anaesthetist and so stopped working. She stopped all medication and then suffered seizures at home believing it to be due to benzodiazepine withdrawal.
This condition resulted in Ms Goh being admitted to the Sydney Adventist Hospital and after discharge she admitted herself to the Northside West Clinic to detox from her benzodiazepine addiction and to commence rehabilitation. She spent three and a half weeks at the clinic and returned home in early May 2011. She then began attending upon Dr Rastogi, a psychiatrist who had treated her whilst an inpatient at the clinic.
Between May 2011 and August 2012 Ms Goh was the subject of four inquiries conducted by the Medical Council pursuant to the provisions of s 150 of the National Law. In the first inquiry she was assessed by Dr Messner and it was determined that she suffered from an impairment and conditions were imposed on her registration. In July 2011 Ms Goh "unfortunately" relapsed by completing prescriptions for benzodiazepine naming Dr Rastogi as the prescribing doctor. She was still unemployed. Dr Rastogi then referred her to a new psychiatrist, Dr Theodorou.
In August 2011 Ms Goh attended the second s 150 Inquiry where it was determined that she was impaired. She was referred to an Impaired Registrants Panel and further conditions were imposed on her registration.
In October 2011 Ms Goh attended the third s 150 Inquiry due to positive Urine Drug Testing (UDT). In addition she had travelled interstate without giving the required notice to the Council. At this time she was still unemployed but the conditions on her registration were altered because she had been offered employment in Emergency Medicine at Canterbury Hospital.
In November 2011 Ms Goh commenced at Canterbury Hospital working three days a week as a CMO in the Emergency Department. In January 2012 she was moved to full time employment as a Registrar in Emergency Medicine. In hindsight she recognised that she should not have taken this position because of the increased workload that caused her great stress. She found that she could not cope and experienced panic attacks making it difficult to leave her home. She stopped attending regular support meetings such as Alcoholics Anonymous and Narcotics Anonymous, and also stopped meditating. Although she continued to see Dr Theodorou her condition deteriorated to the point where in June and July she again presented falsified prescriptions to pharmacies for zolpidem. In July 2012 her employment at Canterbury Hospital was terminated.
In August 2012 Ms Goh attended her fourth s 150 Inquiry and her registration was suspended. Earlier in that month she was readmitted to Northside West Clinic under Dr Theodorou and stayed for nearly two weeks. For most of October she was in the Northside West Clinic under Dr Theodorou.
After being discharged from the Clinic at the end of October Ms Goh changed psychiatrist and began treatment with Dr Hook. She had met Dr Hook during her inpatient stays at Northside. She regarded herself as having a good rapport with Dr Hook who knew her "well" and started day group therapy during 2011 but did not attend regularly. From late 2012, however, she had taken group therapy very seriously and now attended every Friday from approximately 9.30 am until 3 pm. She had unsuccessfully applied in April and July 2014 to have her suspension lifted.
In regard to her current situation Ms Goh stated that since late 2012 she had developed a "stronger commitment" to maintaining her support structure and had developed an increased understanding of the importance of keeping that support structure in place. She described her support structure as including: the support of her current partner Greg; her Christian faith; attending Dr Hook every 4 or 5 weeks in accordance with his instructions; attending group therapy every Friday for the whole day; and close friends she had developed through group therapy.
In September 2015 Ms Goh's mother passed away. With her partner Greg, they moved into her father's house in Carlingford. She stated that her father had been very supportive and that she felt ashamed that she had abused his trust by forging signatures with his name. She had not undertaken paid work for some time but between October 2010 and April 2015 had received income protection insurance payments.
Following the move to Carlingford and because her previous GP retired, Ms Goh found a new GP at Westfield North Rocks. She had now been with her partner, Greg, for three and a half years and described them as having "a good solid relationship". He knew the details of the problems she had faced and supported her.
Ms Goh stated that she now had a better understanding of the triggers that exacerbated her condition, including stress, a feeling of being overwhelmed and sleep disturbance. If the Tribunal granted her application she proposed to return to work in a role that had no or very limited night shift or after hours work.
In relation to her past behaviour, Ms Goh said that she recognised that her deceptive conduct in forging scripts was related to her addiction and was completely unacceptable. She was ashamed by it and it had been very difficult to face and work through. She recognised that at the time of the last Tribunal hearing she was suffering from an impairment that affected her ability to comprehend the importance of strictly complying with the conditions placed on her registration and the necessity of obtaining appropriate treatment. She had been abstinent from alcohol since 2011.
Although not currently registered as a medical practitioner Ms Goh had continued to attend for thrice weekly UDT since January 2015. The samples had been provided in strict compliance with the Medical Council's UDT protocol and all had been clear. She felt that she had a better understanding of what was required to keep herself healthy.
It was Ms Goh's intention not to return to the practice of anaesthetics. She intended to obtain a years experience in a hospital setting retraining before applying for general practice training. She felt the stability of general practice would enable her to keep good support structures in place and this was a good long term goal.
In relation to professional development she had continued to engage in continuing medical education. She provided details of four certificates obtained during 2015 and in 2016 had obtained a certificate of attendance at the General Practitioner Conference and Exhibition in relation to six subjects. She was now enrolled in the Master of Clinical Medicine (Leadership and Management) at the University of Newcastle. She had successfully completed a course entitled Foundations of Clinical Leadership and Management that required 140 hours of study. In cross examination Ms Goh said that the course was expensive and after completing one subject she has deferred continuing and had three to four years to take up the course again.
Ms Goh had been informed by the Royal Australian College of General Practitioners that she may apply to commence fellowship training once she had completed one year in general medicine as a Senior Resident Medical Officer ('SRMO"). She had been able to secure a SRMO position at Hornsby Hospital in General Medicine and Emergency Departments. If she was permitted to return to practice she would like to accept this position and had sought guidance in relation to her career as a GP from Dr Funnell, Senior Specialist at Hornsby Ku-Ring-Gai Hospital. Dr Funnell supported her return to practice under conditions.
In concluding her initial statement Ms Goh said she was embarrassed by and ashamed of her conduct. It had taken her some time to get her health back on track. She believed that she had used the time away from medical practice to gain a better understanding of the triggers that resulted in her impairment. The primary trigger for her conduct was the depressive episode she experienced in combination with significant anxiety. Nevertheless she understood the need for constant vigilance to ensure compliance with conditions placed on her registration. She also understood that if she was allowed to return to practice that she would need to participate in the Council's Health Program. She was prepared to do so and to comply strictly with any conditions the Council or the Tribunal would impose.
Ms Goh had undertaken serious reflection on her conduct and attitudes that resulted in previous proceedings in the Tribunal. She had learnt much from the complaint process, her continuing professional development and her engagement in therapeutic relationships with Dr Hook and group therapy. She also realised that her addiction and psychiatric condition made her personally and professionally isolated. She had since developed a strong support network with her treating practitioners, her support group, and her family.
The second statement filed by Ms Goh in the Tribunal was said to result from inquiries made by the Medical Council concerning the regime of UDT undertaken since January 2015. Ms Goh stated that since that date she had undergone thrice weekly UDT. From January 2015 to March 2015 she attended at PaLMS Pathology at North Shore Private Hospital for thrice weekly UDT where the specimen was taken under the direct supervision of the person in charge on each occasion. The specimen was then sealed and labelled in her presence and she signed the relevant documentation.
From March 2015 to September 2015 she had arranged for two nurses to attend her home for the purpose of taking the thrice weekly UDT. The nurses were on holiday from the United Kingdom but she could not recall their names at the time of making the statement. She had arranged for them to be her UDT supervisors but did not advise the Medical Council that they were her UDT supervisors and was unaware that being deregistered she had to do so. During her evidence in the Tribunal Ms Goh was able to recall the full name of one of the nurses and the first name of the other nurse.
The system with the two nurses was that they would collect UDT kits from the Northside West Clinic and would bring the kits to her house on Mondays, Wednesdays and Fridays. The urine sample would be provided under their direct supervision. Ms Goh would sign all relevant documentation. The sealed and labelled specimen was then placed in a box and was sealed and then posted to PaLMS Toxicology. During this period she occasionally attended for UDT at PaLMS Pathology at North Shore Private Hospital. This would happen if any problems arose with the nurses attending her home for scheduled UDT.
From October 2015 to approximately early November 2015 there were variations to the UDT regime. From October 2015 Ms Clulow was one of her UDT supervisors and Ms Goh attended upon her each Friday for UDT at the Northside West Clinic. Prior to Ms Clulow acting as supervisor Ms. Goh provided her with a copy of the Medical Council UDT protocol. Each specimen was provided under the direct supervision of Ms Clulow and Ms Goh signed all relevant documentation. The sealed and labelled specimen was posted to PaLMS Toxicology.
Over two or three weeks in October to early November, every Monday and Wednesday, Ms Goh attended for UDT at the North Rocks practice of her GP, Dr Tan. The specimens, however, were taken under the direct supervision of the practice nurse, Ms Roberts. Prior to supervising her UDT Dr Tan and nurse Roberts had downloaded a copy of the Medical Council UDT protocol.
During this three week period Ms Goh brought sealed UDT test kits to Dr Tan's practice. These kits had been returned to her by Canterbury Hospital after she ceased working there in 2012. These kits were used by Ms Goh because she had failed to pre-order UDT kits to be delivered to Dr Tan's practice prior to her attendance. Her failure to pre-order the kits arose because she was extremely busy and distracted by her mother's illness during the late September - October period. Ms Goh's mother died in late September and she became responsible for organizing the funeral, packing up her own house and moving to her parent's house in Carlingford. The move to Carlingford was made to keep her elderly father company. Ms Goh was still living at Carlingford when she made this statement in May 2016.
From approximately 4 November 2015 to the present time, on Monday and Wednesday of each week Ms Goh had attended for UDT at PaLMS Pathology at Hornsby Ku-ring-gai Hospital. During the same period she has continued to attend every Friday to provide UDT to and under the supervision of Ms Clulow.
Ms Goh stated that she had been committed to undertaking thrice weekly UDT since January 2015 to the present time and intended to continue with that regime of testing. Updated UDT results for the period February to April 2016 were provided to the Tribunal. If allowed to return to practice she would comply with any condition requiring thrice weekly UDT undertaken in accordance with the Medical Council protocol. She understood that any breach by her of the protocol could result in her again being deregistered and she did not want that to happen.
Ms Goh was closely cross examined in relation to her past conduct and her lack of honesty. Particular attention was directed to periods when the UDT testing she had undertaken did not strictly comply with the Medical Council protocol. Ms Goh accepted that at times she spoke of supervisors being approved by the Council when the protocol had no such requirement. Although the terms of the protocol had been dealt with in s 150 proceedings and in the 2014 proceedings in the Tribunal Ms Goh had not thoroughly read its terms until February this year. She appeared to believe that because she was not registered during this period it was sufficient to have thrice weekly testing even if other protocol requirements were not met or fully met. She agreed that from the documents tendered the Council could not be sure of the level or identity of the supervisor of the testing. There was no evidence of the steps taken by the supervisor as required by the protocol. In relation to some of the posted specimens she was unable to explain why there was up to four days between the taking of the specimen and the time when it arrived for analysis.
The use of old UDT kits from Canterbury Hospital for a time was also conceded not to be in accordance with the protocol as was the failure to send testing kits to supervisors from time to time. Ms Goh accepted that she had provided no evidence from any of the supervisors conducting the tests that the protocol had been adhered to. These failures also raised issues about the chain of custody. Ms Goh accepted that it was inaccurate to say in her statement that the protocol had been "strictly" complied with having regard to the matters raised in cross examination. She should not have used that word but thought that because she was deregistered she was therefore not under a requirement to follow every detail of the protocol. With the benefit of hindsight she accepted that it would have been better evidence of her drug status if the protocol had been strictly followed. Ms Goh, however, pointed out that she was attending PaLMS twice a week and the Northside West Clinic on Fridays. In 2015 she had advised the Medical Council that the Friday specimens were being taken at the Northside West Clinic and this advice was acknowledged by the Council.
In relation to her dismissal from Canterbury Hospital, Ms Goh said that although she was not asked to respond to the reasons for dismissal she could not challenge the decision because she was guilty and knew that her conduct was disgraceful and terrible. She had informed Hornsby Hospital of the circumstances of her deregistration and had provided them with a copy of the Tribunal's decision. The position was still available at Hornsby Hospital and she wished to take up that offer. Although the position called for night and overtime work that had been discussed with the Hospital and suitable arrangements could be made for her. Supervision would also be available. When questioned about how she would now cope with full time work in Emergency considering her history at Canterbury when the stress of the work compounded her addiction and its consequences, Ms Goh responded by pointing out that the position at Canterbury Hospital was more senior and stressful. The position at Hornsby was quite junior without the same stress and there would be supervision. Further, she had worked as a SRMO previously.
In relation to the use of the names of other doctors to obtain drugs, Ms.Goh said that she had admitted this to her father in April/May 2014 and had spoken to Dr Rastogi about using his name in July 2011. She had not contacted other doctors to apologise for using their name in this way and none of the doctors had contacted her. She was aware that her parents and close friends had read the 2014 decision of the Tribunal but she had no reaction from those friends.
Following legal advice, Ms Goh had removed her name from the register of practitioners before the Tribunal commenced its hearings in 2014. She denied the suggestion that the only reason for doing so was to show a degree of insight although that was part of the reason. The initial reason was to help lower the level of stress she was feeling: she was also advised not to attend the Tribunal or give evidence for the same reason.
When asked why she had reduced her work load in 2009, Ms Goh cited personal stress, the ending of a de facto relationship, and a very heavy work load involving long hours and being on call. She had shifts at various hospitals because she was newly qualified as a specialist and most available positions were part time. She took on too many hours at that time. Ms Goh did not see this stressful work load applying at Hornsby at her lower level of practice. She was now more conscious of maintaining a work/life balance and there would be no financial stress.
In response to questions from members of the Tribunal Ms Goh said that she was looking forward to working at Hornsby and GP training. She was not able to find any part time or job share positions but only full time work. She had discussed a GP career with Dr Funnell and had obtained information from a handbook. She had also spoken to her GP about the nature of GP work and understood that it might take two years to obtain a fellowship. In addition she had observed her father in GP practice.
In further evidence Ms Goh said that because her name appeared in the Health Services Checklist, Hornsby Hospital were obliged to undertake a risk assessment before offering her the SRMO position. When interviewed at Hornsby she was asked about her history at Canterbury Hospital and she spoke of her addictions. She gave Dr Funnell a copy of the 2014 decision of the Tribunal and understood that Dr Hook supported her appointment at Hornsby. The Director of the Emergency Department would be her supervisor and had been advised of Ms Goh's background. She understood that the Hospital was aware that a return to the register was likely to be subject to comprehensive conditions similar to those described during the hearing of this matter.
The evidence for Ms Goh was completed with specialists' reports from Dr Stephen Hook, her treating psychiatrist, and Dr Susan Messner, consultant psychiatrist. Dr Hook described his areas of expertise to include the diagnosis and management of mood and anxiety disorders, alcohol and substance use disorders, and personality disorders.
Dr Hook had been Ms Goh's treating psychiatrist since 2013. She had been treated for a combination of sedative hypnotic abuse and depressive/anxiety symptoms. She had mainly participated in a drug and alcohol day program being a facilitated group of generally 5-10 members. Dr Hook was the co-facilitator of the group and had observed her interacting with other participants for an hour each week. She had attended the group most weeks. He had seen her individually in the course of her attendance at the D&A program on a total of 24 occasions since June 2013. There had also been 12 individual interviews since September 2014 of between 15 and 30 minutes duration.
Ms Goh had been fully compliant with program requirements and treatment recommendations since mid 2014. The last incident of significant concern regarding substance abuse occurred in mid 2014 when Dr Hook became aware that she had been using Seroquel in excess of prescribed dosages. Since September 2014 there has been no evidence of any inappropriate use of substances: she had never appeared to be drug affected at any group or individual sessions. There had been no unexplained absences, late attendances or other behavioural anomalies suggestive of ongoing substance use.
Until mid 2015 there were persistent anxiety and depressive symptoms such that Dr Hook considered that she would not be fit to return to work at that stage. The major stressor in this period was her mother's deteriorating health and more recently she had also dealt with the death of her grandmother. Dr Hook stated that Ms Goh had coped adequately with these difficult personal circumstances, without relapse into substance use or depression severe enough to require hospitalization.
Dr Hook had observed in both group and individual settings, clear progress over the past year in terms of her insight and awareness regarding substance abuse. There had been repeated examples of increased distress tolerance where Ms Goh had identified negative emotions (some lasting for days) but where she had not acted out on them in a destructive manner. Now she was much more able to communicate her feelings and problems to others, and to make constructive use of the feedback she received in the group. There was consistent and effective use of consequential thinking in her decision making, rather than reactivity and impulsiveness.
Dr Hook noted more spontaneous expressions of guilt and remorse regarding her previous conduct as she had increasingly recognised the impact on her family and peers and the risk to the community at large. He believed that this reflected an increasing maturity in Ms Goh's approach with a preparedness to acknowledge vulnerability and seek assistance without experiencing crippling shame.
The issue of returning to work in medicine had been the subject of ongoing discussion in their consultations. Dr Hook observed that whilst the stress of work might act as a trigger for relapse, ongoing unemployment was also likely to have a negative impact on her mental state. In a letter he had sent to AHPRA in July 2015, Dr Hook had noted the following matters: Ms Goh readily acknowledged the risk of relapse and the need for monitoring; that there was an effective framework in place to detect inappropriate substance use, namely thrice weekly UDT; that she had maintained her commitment to group therapy and had improved in her capacity over time to share difficulties and seek feedback/assistance; she was utilising cognitive-behavioural strategies, meditation and exercise to effectively manage her stress levels; and, her relationship was stable and her partner was supportive.
In concluding his report, Dr Hook stated that as a result of her engagement in recovery over an extended period, Ms Goh now demonstrated greater emotional maturity and appreciation of the responsibilities of the role of a medical practitioner. He was, therefore, supportive of Ms Goh returning to the practice of medicine, subject to registration conditions incorporating appropriate safeguards and supervision.
In oral evidence Dr Hook stated that he had read Ms Goh's two statements filed in the Tribunal. He was unaware of the arrangement whereby Ms Goh undertook UDT at PaLMS on Mondays and Wednesdays but on Fridays had UDT supervised by Ms Clulow at the Northside West Clinic. He knew Ms Clulow. If Ms Goh used drugs between a Wednesday and the following Monday it might not show up in the testing but if it was a regular practice he thought it would be likely to show in the Monday specimen.
Dr Hook was shown a list of conditions that had been imposed upon Ms Goh's registration over time and stated that he regarded them as appropriate for the future if she was allowed to practise again. In relation to her intention to take up a position of SRMO at Hornsby Hospital, Dr Hook observed that as she had not practised for some time that it would be appropriate for her to be supervised and monitored to ensure that she reached the required standard for the work. The level of supervision appropriate would be Category B as laid down in the Medical Council's protocol and that appeared to be feasible for the proposed position. In his experience, if the nominated supervisor was not present at all times, another doctor would be available to supervise.
Dr Hook was cross examined about Ms Goh's use of Seroquel in 2014 and described it as occurring when she was anxiety ridden. In two years since then there was no known recurrence of that use. Her recovery was ongoing but in the last one to two years she was more stable and the chances of relapse were much lower. He had seen emotional shifts in Ms Goh over this time: before she was in denial and prone to rationalization but now she was using her support mechanism. That said, he would hope to see further improvement. The Friday group sessions were an important part of her recovery and his preference was that she continue with the Friday group rather than go to another day group. If necessary she could join another group and it would be useful.
Drug testing protocols had not been discussed much with Ms Goh but she recently raised difficulties with strict compliance. He did not require strict compliance with the protocol as he was keeping close tabs on her. The majority of testing was through PaLMS and on Fridays she was with the group. He recently became aware that nurses were doing some of the testing and admitted to some level of concern, however he needed to know the circumstances. Dr Hook agreed that if since November 2015 Ms Goh had been tested once per week by Ms Clulow he would have no concerns about that testing as he had a high level of confidence in Ms Clulow and the clinic.
In response to questions from the Tribunal Dr Hook agreed that there were a complex of issues that led to the drug issue arising for Ms Goh, although it did not start in childhood. He had reviewed her file and concluded that in many ways she was a different person. There was a lot of chaos around her in 2014 but she was very different in the last two years. That is why he supported her application.
Dr Susan Messner provided an expert report dated December 2015. She had assessed Ms Goh initially in 2009 in the capacity of a Board appointed psychiatrist and then on a number of occasions from 2011 whilst Ms Goh was in the Council's Health Program until the Tribunal decision in 2014. Dr Messner gave evidence at the 2014 hearing in the Tribunal and several of her reports were in evidence. By July 2014 Dr Messner was able to state that Ms Goh was not competent to practise medicine because she lacked sufficient physical or medical capacity to do so.
In November 2015 Ms Goh attended Dr Messner's rooms for interview. Ms Goh said she was feeling "pretty good" although was sad because of her mother's death. She acknowledged that her mother had chronic health problems and had been supporting her parents throughout the year. With her partner, Ms Goh had moved into the family home to provide company to her father and to assist with the running of the home: this was seen as a long term arrangement.
Ms Goh described her psychological health as being good. Her mood was good with no depression or significant anxiety. She was meditating every day for about twenty minutes and considered it to be important for her ongoing wellbeing. It was three years since she had ingested a sedative hypnotic and since January 2015 she had undertaken voluntary thrice weekly UDT to provide ongoing proof of her abstinence from drugs. She continued to attend gym about four times per week. She denied use of other recreational drugs and did not drink alcohol.
At interview Ms Goh did not appear particularly anxious and was open and frank and expressed shame in discussion of her prior behaviour. She spoke with insight regarding her risk of relapsing when returning to full time work but saw differences between the Hornsby position and her work at Canterbury Hospital. She had strong support now from family and friends who were aware of her previous addiction. She acknowledged the importance of ongoing self-care and spoke with appropriate anxiety regarding a return to medical practice.
Dr Messner then addressed a number of questions posed by Ms Goh's legal representatives. In her opinion Ms Goh was currently suffering from an impairment as defined by the National Law, in that she suffered from abuse of and addiction to sedative hypnotics, currently in remission. That addiction occurred against a background of a mixed anxiety and depressive disorder that was currently well managed. She had not used any substances since October 2012 and had ongoing attendance with a psychiatrist as well as attendance at a day program focused on the treatment of drug and alcohol dependence. She had undertaken thrice weekly UDT since January 2015 with the results being clear of prohibited substances. Those results supported the conclusion that she was in remission from addiction to sedative hypnotics.
Based on the recent assessment of Ms Goh and the fact that she was undergoing thrice weekly UDT, Dr Messner concluded that she had addressed her mental health conditions sufficiently to return to work as a medical practitioner. She needed to be in an appropriately supported position and receiving ongoing support from her treating practitioners.
Ms Goh was now demonstrating sufficient insight in relation to her mental health issues to be allowed to return to work as a medical practitioner. She acknowledged her prior addiction and expressed remorse for the previous behaviour: she was very ashamed about that conduct and was no longer denying it. She acknowledged the ongoing risk of addiction but stated that she would no longer expose herself to a benzodiazepine nor would she take zolpidem. In her position at Canterbury Hospital she was placed in a position of responsibility and was very stressed but unable to tell any of her supervisors. The position would be different at Hornsby and she would be able to recognise if she was feeling too stressed at work. Having regard to all these matters Dr Messner was supportive of Ms Goh returning to medical practice subject to appropriate conditions being imposed on her registration that would satisfy the Medical Council of her ongoing abstinence from sedative hypnotics and other addictive substances.
In oral evidence Dr Messner said that between 2009 and 2011 while Ms Goh kept appointments she did not feel that she was giving the whole story. Other matters would be revealed in Medical Council documents. In 2015, however, Ms Goh was much more forthcoming and felt ashamed about her previous behaviour. This was a significant shift. Therapy had also assisted significantly.
In relation to Dr Goh's compliance with the Medical Council protocol for UDT since 2015, the PaLMS testing was compliant and Dr Messner was not concerned about the Northside West Clinic testing. The testing carried out by the nurses was not so transparent. In recent times the two days a week testing at PaLMS was fine and there was no problem with the Friday testing at Northside West as it was a facility for important testing and was therefore appropriate. Asked if Ms Goh had only twice weekly testing by PaLMS and had taken substances any time in the rest of the week whether she would be clean at the start of the next week, Dr Messner said that it would be highly unlikely or a very small chance that she would test clear the following Monday. If this course had been followed it was likely that drug use would escalate on non testing days and would show up eventually.
In relation to appropriate conditions to be placed upon Ms Goh's registration, Dr Messner said that she should not work more than 12 hours in any 24 hour period and should not perform night work. Category B supervision appeared to be appropriate as Category A supervision was usual for interns. A mentor could be useful.
In cross examination Dr Messner agreed with Dr Fisher that a supervisor was important to monitor Ms Goh as she would be out of practice. Such a supervisor would need to be close at hand rather than remote. There would need to be daily access to monitor her coping skills. There would be a twofold benefit from such supervision, not only providing support for Dr Goh but also protection for the public. Asked whether her initial work in Emergency at Canterbury Hospital might suggest work in the same area at Hornsby could be a problem, Dr Messner noted that the position at Canterbury was not well supported and too much responsibility was placed on her. If the Hornsby position was well supported it would be appropriate.
Dr Messner was directed to one of her 2014 reports regarding Ms Goh where it was stated that she needed to undertake UDT in strict compliance with the protocol for six months before returning to practice. In relation to the recent testing there was only Ms Goh's word that they were compliant but Dr Messner was not particularly concerned that Ms Goh said these tests were strictly compliant. In hindsight the use of the nurses for testing was not as transparent as the other testing and she had no concern about the Northside West testing as it complied with the protocol.
Attention was then directed to a number of Dr Messner's reports leading up to the 2014 hearing in the Tribunal. A series of Ms Goh's shortcomings were revisited as possibly arising again should she be allowed to return to medical practice. Dr Messner said that in 2015 the difference was that Ms Goh was more forthcoming and that supported the conclusions appearing in the latest report. She had noted in the last report that Ms Goh's affect was reactive and her mood euthymic. Ms Goh had told her that she was no longer addicted and this was regarded as progress. There was no concern that Ms Goh had not mentioned taking Seroquel in 2014 as it was not a drug of addiction. Ms Goh's dishonesty and deception was directly associated with her addiction but Dr Messner did not expect people to be fully frank.
Dr Messner accepted that Ms Goh's recovery was ongoing. She was very remorseful and ashamed of her previous conduct but was on a long journey to recovery. Most important was the imposition of conditions and the disclosure of those conditions to all new employers.
Counsel for the Medical Council tendered one expert report obtained from Dr Robert Fisher, a senior consultant psychiatrist and head of the Department of Psychiatry and Psychological Services of St Vincents clinic and private hospital. Dr Fisher had been a Council Appointed Psychiatrist to the Medical Board and subsequently the Medical Council of NSW for over 30 years.
Ms Goh attended Dr Fisher's rooms in late April 2016 for the purpose of Dr Fisher performing an assessment and to provide a report for the present proceedings before the Tribunal. She gave a detailed personal and professional history and dealt at length with the issues that led to her being disqualified from being registered as a medical practitioner in 2014.
Measures taken by Ms Goh to manage her problems with benzodiazepines and alcohol included: not consuming alcohol since August 2015; not consuming benzodiazepines since September 2012; attending a relapse prevention group weekly at Northside West private hospital since October 2013; continuing to see her treating psychiatrist every four to six weeks (previously every two to three weeks) since June/July 2013; being fully committed to abstaining from alcohol, benzodiazepines and any other prohibited drug; undertaking voluntary thrice weekly supervised UDT for all drugs including Stilnox with all results showing she was free of prohibited substances; meditating every morning and attending the gym five to six times per week; and finding that she was better at asking for help and confiding in friends if she was stressed by events in her life. She told Dr Fisher that she had crossed the line with benzodiazepine use too many times to even consider going back there again. She had to learn how to "sit down with herself" when anxious, depressed or in a negative emotional state and had found that after 6 or 8 hours the negative emotional state passed. This was something she had never done before.
A number of other matters were dealt with in Dr Fisher's report. Ms Goh told him that she felt much more grounded than she did three to four years ago. She had no pathological anxiety or panic attacks now. She said she carried a lot of shame and guilt for having abused alcohol and drugs. She reported her mood to be euthymic and stable and denied any other psychiatric symptoms. She stated emphatically that she was committed to long term abstinence from prohibited substances.
Dr Fisher stated his diagnostic conclusions by identifying her current problems. She had developed a dependence on benzodiazepine drugs subsequently using zolpidem but appeared to be insightful into the inappropriateness of the use of the drugs and alcohol. She had in place a number of measures to minimize her risk of lapsing back into the use of those drugs. She experienced an episode of Major Depressive Disorder that ultimately responded well to treatment. She reported suffering from Generalised Anxiety and insomnia. Therefore, there was a history of genetic loading that may further support the diagnosis of Major Depressive Disorder. She had a range of personality strengths and had been confident, determined and able to relate well to others and to apply herself diligently to work and study until she developed the dependence on benzodiazepines. She had been industrious in getting on with further qualifications since she elected to remove her name from the medical register.
In relation to his opinion and recommendations, Dr Fisher concluded that Ms Goh did suffer from a severe impairment due to the abuse and dependence upon benzodiazepine drugs and others. He believed she would carry a vulnerability to alcohol and poly drug/dependence now and going forward. In that context he believed she suffers from an impairment with that vulnerability but was not currently impaired. Specifically, he believed she was now fit to practise medicine although she should enter the Medical Council's Impaired Registrants Program and be compliant with a set of conditions aimed at minimising the risk that she will lapse into the use of benzodiazepines, the abuse of alcohol or the misuse of other prohibited drugs.
In the report Dr Fisher also dealt with a number of questions raised by the Medical Council. Firstly, he believed that Ms Goh had undergone sufficient treatment to address the issues that led to the Tribunal's decision of 2014. She had developed genuine insight and genuine remorse and at the present time was committed to not re-offend. Ms Goh, however, would never be free of the risk of lapsing but her commitment to a process of risk minimization mitigated that risk. The risk could never be mitigated totally so measures were required that would identify any lapse quickly, specifically to protect the public. Apart from participating in the Impaired Registrants Program she would need to continue the thrice weekly UDT, attend a psychiatrist, have a supervisor at her place of work, to commit to abstinence and not to work in excessively stressful situations where she had unfettered access to benzodiazepines. She was currently free from psychiatric symptoms and was fit to practise medicine.
In oral evidence Dr Fisher had his attention directed to Ms Goh's second statement where she spoke of engaging two nurses to supervise her UDT. He has asked if he had any concerns that there was no statutory declaration as to what the nurses did and whose urine had been tested. Dr Fisher said that while the use of nurses raised questions about the reliability of the results these matters did not necessarily alter his opinion and noted that the best evidence of the test findings was supervised drug screening.
In cross examination Dr Fisher said that the UDT protocol could be used for other purposes and other procedures could be adopted. A person could be nominated for taking specimens and the Council could approve of that process. He agreed that if such an alternative approach had been complied with the results would be acceptable and considered valid.
Members of the Tribunal asked Dr Fisher to elaborate on the type of conditions that would be appropriate for Ms Goh. He said that the supervisor must be able to observe her whilst working and have regular meetings with her. She may encounter problems and have to reskill and there would be a need to check her progress with other members of the team. She should not do night work and the work should not exacerbate her stress. He thought that the standard of supervision should be at Category A: that level was more appropriate than Category B because of the nature of the offence and the possibility of using easily accessible substances. Safety was the issue.
Counsel for both parties provided the Tribunal with helpful written submissions. For Ms Goh the submission focused on the reports of the three expert psychiatrists and the fact that they all had concluded that she was fit to return to medical practice under a scheme of conditions, notwithstanding her previous conduct of drug abuse and addiction and her dishonesty. In particular it was submitted that the conclusions of her treating psychiatrist, Dr Hook, should be afforded considerable weight. He had been in the position of personally observing her participation over three years in group therapy and had also seen her individually on a significant number of occasions.
Whilst not a treating psychiatrist, Dr Messner had seen Ms Goh on a number of occasions since 2009 and was well placed to observe the changes in her over a lengthy period. She concluded that Ms Goh suffered from an impairment that was currently in remission but had strong support now from family and friends. She expressed shame for her prior conduct.
Dr Fisher supported her re-registration with conditions, particularly in relation to supervision. He noted her voluntary submission to thrice weekly UDT since January 2015 although he was concerned about the reliability of results obtained during the period March to September 2015 that were taken by two registered nurses at Ms Goh's home. It was submitted that looking past that period the results should be accepted as reliable: between October and November 2015 the tests were taken on two days per week at a general practice by a registered nurse whilst Friday tests were taken by a registered nurse working at the Northside West Clinic. From early November 2015 to date specimens had been taken twice per week at PaLMS Pathology and the Friday specimen continued to be taken by the registered nurse working at the Northside West Clinic.
All the tests conducted at PaLMS Pathology were compliant with the protocol by reference to its own terms. Ms Goh gave unchallenged evidence that the remaining tests were provided by her under the supervision of the Northside West Clinic nurse in circumstances where the specimens were sealed and labelled in her presence and all documentation signed, sealed and placed in a box, also in her presence. The Tribunal could be comfortably satisfied that the substance of the protocol was followed and that the results were reliable.
Submissions for the Medical Council closely reviewed the 2014 decision of the Tribunal and the elements of Ms Goh's misconduct. In short the Council opposed the making of an order for the reinstatement of Ms Goh as a medical practitioner. She had not discharged the heavy onus on her to support the order sought. It was submitted that she had failed to demonstrate: that she had not abused prescription drugs in the last three years; that she had sufficient insight into her substance use issues to the extent that the Tribunal could be satisfied that she will avoid, acknowledge and/or rectify any future non-compliance; and, that the arrangements for her return to work sufficiently address the risks associated with employment as a medical practitioner.
It was pointed out that over a period of 13 months between 2011 and 2012 Ms Goh was involved in systematic and fraudulent behaviour that exploited the trust of fellow practitioners and patients. Ms Goh's placed this conduct in the context of an underlying mixed anxiety/depressive condition, personal circumstances including a difficult relationship and the stress of full time work. These matters raised the following issues: are her substance abuse issues sufficiently resolved?; and, does she have sufficient insight into her substance use issues, the underlying mental health issues, and the triggers for any possible relapse? If she was allowed to return to full time work, even with conditions, are her circumstances such that she is unlikely to relapse?
Ms Goh's previous dishonesty was said to raise concerns about her frankness and candour regarding the extent of and her recovery from substance abuse. Previously she had submitted diluted specimens for testing and was clearly aware of the strict requirements of the protocol. She had admitted to misleading her treating team including her psychiatrist during that time.
The submission, as with the cross examination, challenged the adequacy of Ms Goh's voluntary UDT dating from January 2015. None of the tests complied with the protocol because the supervisor could not be identified, the chain of custody requirements could not be established and there was a lack of evidence from supervisors that they had properly undertaken their role in collection of the specimens and in identifying Ms Goh as the provider.
Although it was accepted that Ms Goh made clear statements of contrition and regret regarding her past behaviour it was submitted that her evidence in these proceedings as to her past conduct continued to minimise her actions. This defect was said to be demonstrated in a number of ways: she had not contacted the practitioners or patients (apart from her father and Dr Rasogi) about fraudulently using their identity to obtain drugs; she asserted that her voluntary UDT since January 2015 was in strict compliance with the protocol although she must have known that this was not the case; she gave evidence inconsistent with Dr Hook regarding her use of Seroquel in September 2014 and did not disclose her use of Seroquel to Dr Messner; took the view that she could cease the Friday group sessions although Dr Hook and Dr Fisher rejected that view; and failed to address a number of matters in her evidence in these proceedings concerning events that took place between 2012 and 2014.
In evidence Ms Goh had accepted that work related stress was a significant trigger for both her depression/anxiety conditions as well as her prescription drug abuse issues. In mid 2014 she had taken doses of Seroquel in excess of Dr Hook's prescribed dosage during a period significant stress while awaiting the decision of the Tribunal. Now she was planning to return to work in an emergency department even though that type of work had previously caused her great stress and led to drug abuse. She had not produced real plans for her transition from being unemployed for nearly four years to full time work while needing to continue the support supplied by group therapy, daily meditation, regular gym attendance and attendance on her treating team.
In concluding the submission it was accepted that Ms Goh had made "some progress" towards stabilisation in remission from substance abuse, however, considering the seriousness of her previous conduct and the matters earlier referred to, she had not yet discharged the significant onus to demonstrate that she was a fit and proper person to be returned to the register. It was then put, "strictly in the alternative", that if the Tribunal was satisfied that Ms Goh could return then there should be conditions such as those put forward during the hearing including category A supervision as supported by Dr Fisher.
As to the legal principles applying to this kind of application, there was agreement between the parties that they were readily found in two recent decisions of the Tribunal, namely, Bahramy v Medical Council of NSW [2014] NSWCATOD 116 and Roberts v Medical Council of NSW [2015] NSWCATOD 35. Both decisions canvassed a number of authorities of relevance to this particular jurisdiction. For present purposes it is sufficient to say that the applicant must establish, on the balance of probabilities, that she is now a fit and proper person to be registered as a medical practitioner. Having regard to the seriousness of Ms Goh's previous professional conduct the Tribunal needs to be satisfied to a high level of probability that the applicant is a fit and proper person to be held out to the rest of the profession, to patients and the whole of the community as a person worthy of their confidence. In exercising the jurisdiction under the National Law to reinstate a practitioner, the Tribunal will have regard to the previous findings concerning the applicant's conduct to decide whether or not the deficiencies found have been remedied. This approach is to be tempered by considerations identified by Kirby P (then in dissent) in Dawson v The Law Society of New South Wales [1989] NSWCA 58 where His Honour said: "There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance." In exercising this function the objects of the National Law are at the centre of the Tribunal's considerations: the protection of the public must be the paramount consideration.
A major focus during the proceedings was the voluntary UDT undertaken by Ms Goh from January 2015 to the present time. Ms Goh relied upon this history to demonstrate her commitment to remaining drug free and to prove that she had in fact done so. It was also an indication of her insight, remorse and contrition. Counsel for the Medical Council did not claim that the tests were falsified but argued that they were not taken in strict compliance with the Council protocol and therefore left many questions unanswered. Thus, it was submitted, Ms Goh could not satisfy the high onus she bore in these proceedings as discussed in the decisions referred to by both parties.
In summary, for the first three months or so of 2015 the tests were performed at PaLMS. Between March and September 2015 the specimens were taken by two nurses at her home with occasional tests taken at PaLMs. Between October and November 2015 the Friday tests were taken at the Northside West Clinic under the supervision of nurse Clulow and forwarded to PaLMS for analysis. For a short time for two days per week the tests were taken by the nurse at her GP's practice. Lastly from early November to the present time the Monday and Wednesday tests have been taken at PaLMS and the Friday tests have been taken at the Northside West Clinic. From this summary it appears that a significant number of tests were taken at and supervised at PaLMS.
All three psychiatrists who gave evidence regarded the period of testing at home by two nurses as undesirable and lacking in transparency. None changed their view that Ms Goh had taken sufficient steps to address her previous drug use to allow her to return to practice because of this problem. Dr Fisher was not sufficiently concerned to alter his view of her present fitness to practise. He accepted that under the protocol other test procedures could be adopted and still be accepted as valid. Dr Hook did not require strict compliance with the protocol but the testing was a means of keeping an eye on Ms Goh. He noted that the majority of testing was performed through PaLMS and he had confidence in the testing by Northside West Clinic, and no concerns about tests supervised by nurse Clulow. Dr Messner was not concerned about testing by Northside West Clinic and thought it appropriate. She thought that if drugs had been taken between the Wednesday testing by PaLMS and the following Monday testing by PaLMS that it would be likely to show up. It was also likely that if this conduct continued there would be an increase in drug taking that would clearly show in subsequent weekly testing.
While it can be accepted that the very best evidence of being free from drugs would be testing carried out thrice weekly in strict accordance with the Council protocol that does not mean that the testing Ms Goh subjected herself to has no evidentiary value in proceedings of this nature. The uncontradicted evidence of Dr Messner was that drug testing under a twice weekly PaLMS regime would be likely to show any drug taking in the intervening period before the next PaLM testing was taken. Dr Hook, as her treating doctor, was not concerned by the testing undertaking by Ms Goh especially since November 2015. Broadly, Dr Fisher was of the same view. It is inconceivable that any of these three senior psychiatrists could conclude that Ms Goh was fit to resume practice if they held any reasonable doubt that she was not drug free or that the testing was in any way compromised. The long running testing regime was a central plank in her case that she was a changed person who had real insight into the dangers and inappropriateness of her previous drug taking and drug addiction.
Ms Goh was under no obligation to strictly comply with the protocol but took steps to adopt the substance of the protocol including the notification sent to the Council that nurse Clulow was supervising her Friday testing. In any event, the Tribunal does not have to accept the entire regime of testing from January 2015: in s150 proceedings prior to the 2014 decision of the Tribunal Dr Messner thought that six months strict compliance with the protocol was necessary before Ms Goh could return to practice. The evidence before this Tribunal is that since November 2015 there has been substantial compliance with the protocol. Bearing in mind the significance of this issue, the Tribunal is satisfied that for a considerable period and at least since November 2015, Ms Goh has maintained a regime of thrice weekly UDT that has shown that she has been clear of drugs.
In relation to the suggestion that Ms Goh may be placing herself in a stressful work situation similar to that which led her into drug addiction, the proposed position at Hornsby Hospital seems to be materially different to her Canterbury Hospital engagement. The evidence suggests that she was not adequately supported in that senior role and she succumbed under a combination of personal and work pressures. The Hornsby position is quite junior having regard to the specialist status she had achieved as an anaesthetist. It is a position in which she will be supervised in circumstances where her prior history has been frankly disclosed. That is not to doubt that she will be on a steep learning curve in her desire to ultimately become a GP, especially after nearly four years absence from medical practice. Ms Goh appears to be well aware of the challenges she faces and has taken steps to provide the essential support she needs to overcome stress and anxiety. She has also continued to add to her medical knowledge. The three psychiatrists who gave evidence in the proceedings were all aware of this placement at Hornsby Hospital but none saw it as a factor that would render her unfit to return to practice while acknowledging the challenges it would provide.
As previously summarized the evidence of the three psychiatrists was that there was real progress in Ms Goh's recovery albeit that there was a way to go. She was more mature and more ready to admit the extent of her drug taking. She demonstrated insight, remorse and contrition and now spoke of the shame she felt for her conduct. She had taken steps to arrange support mechanisms that addressed her problems with stress and anxiety. In short the Tribunal accepts that Ms Goh appears to be a much changed person to the one that was dealt with by the Tribunal in 2014. The Tribunal is aware that she is likely to be, nevertheless, in the early stages of recovery but the signs are encouraging. Whilst she suffers from an impairment it is considered to be in remission.
After closely considering all the evidence and the submissions of the parties, the Tribunal is satisfied that Ms Goh has discharged the onus necessary for the success of her application for reinstatement to the medical register. The evidence, however, clearly shows that comprehensive conditions are required to be imposed on her registration in the public interest and the protection of the public. The Tribunal was ultimately presented with two proposals containing a raft of suggestion and the parties also had some discussions about these matters. With some minor amendments, the Tribunal accepts the suggestions proposed by the Medical Council.
On balance, the Tribunal considers that Category B supervision is the most practical way to provide support and public protection whilst Ms Goh is engaged as a SRMO at Hornsby Hospital. It appears to be reasonable that Ms Goh should obtain the prior approval of the Council before changing the nature or place of her practice. The evidence is that she will remain in the SRMO position and will seek admission to the GP program. Her supervisor may well require her to consult the Council before departing from this intended path. The thrice weekly UDT should be directed to testing for benzodiazepines, zolpidem and hypnotics. Lastly, on the basis of all the evidence the Tribunal does not accept the necessity for testing for alcohol consumption.
At the conclusion of the hearing the parties agreed to file written submissions regarding the issue of costs. Briefly stated, Ms Goh submitted that should she be reinstated there should be no order for costs with each party to bear their own costs. It was accepted that should she fail in her application she would not resist an order for costs in favour of the Medical Council. For the Medical Council it was argued that should Ms Goh succeed in her application, nevertheless, she should pay the costs of the Council.
The written submissions for the Council relied upon the following matters: the case concerned prior professional misconduct; the jurisdiction was protective in nature and the public safety was paramount; there was a need for a contradictor in the proceedings to scrutinise the application and the Council had been given leave to be joined in the proceedings; and the fact that the members of the Medical Council would have to bear the burden of the costs of their participation in the proceedings in the public interest. Indeed, it was submitted that the failure to grant such a costs order would penalise members of the Council.
A number of the submissions made on the primary question of reinstatement were repeated as justifying a costs order in favour of the Council. Those submissions, of course, were made prior to the publication of this decision. It may be said that the Tribunal has not formed the same adverse view of the applicant as urged by counsel regarding matters such as the regime of UDT followed by Ms Goh, her insight, remorse and contrition: these were all issues of substantial significance in determining the application.
While it was accepted that the power of the Tribunal was broadly expressed in Schedule 50 cl 13 of the National Law by providing that the Tribunal may decide if any party to proceedings should pay the costs of the other party, it was submitted that reinstatement cases were not like other contested hearings and flowed directly from prior professional misconduct. Further, it was accepted that while the Court of Appeal in HCCC v Philipiah [2013] NSWCA 342 held, that as a general rule, the costs of proceedings before the Tribunal should follow the event, the nature of reinstatement proceedings brought other public interest issues into play.
Reference was then made to the decisions of the Tribunal in Donnelly v HCCC [2014]NSWCATOD 155 and Roberts v Medical Council of NSW [2015] NSWCATOD 35 where in successful reinstatement proceedings no order was made as to costs. Those cases were then compared to the Tribunal's approach in Ristevski v Medical Council of NSW [2016] NSWCATOD 18, where the Tribunal ordered a successful applicant for reinstatement to pay the costs of the Medical Council. The Tribunal emphasised the importance of the role of the Council in such proceedings in assisting the deliberations and raising matters that may otherwise have been overlooked. It distinguished cases where no orders for costs were made where the applicant was reinstated, noting what were described as different considerations applying in those cases.
Submissions for Ms Goh pointed to other statements of the Tribunal in the Ristevski decision dealing with the discretionary nature of the costs power and the identification of some circumstances where a successful applicant for reinstatement may obtain a costs order. It was pointed out that in the present case the Medical Council had opposed the reinstatement of Ms Goh throughout the proceedings and had held her to a standard not applicable to registered practitioners undertaking UDT. The Council's submission had largely ignored the evidence of Dr Hook and Dr Messner.
In this discussion it is useful to briefly return to the judgment of the Court of Appeal in Philippiah. In that case the Tribunal made no order as to costs where the applicant doctor was unsuccessful in contested proceedings. A significant reason for this costs decision was the impecuniosity of the applicant. The Court noted that costs were compensation for the successful litigant and were not a penalty upon the unsuccessful litigant. In that case there may have been circumstances, such as the doctor not being at fault and accepting conditions, that could be relevant to the exercise of the discretion whether to make a costs order. There were some failures of the HCCC case identified that might justify a result whereby there was no recovery of costs by the Commission.
The Court of Appeal also dealt generally with circumstances that might warrant a costs order against the Commission, for example where there was oppressive conduct that added to the costs of the proceedings. Overall, the costs jurisdiction was discretionary and was to be exercised according to principle and rules of reason and justice, not according to private opinion. It was, however, not easy to state precise principles. It was important to remember that costs were intended to compensate a successful party and were not to penalise an unsuccessful party.
It is significant that the legislature adopted a general discretionary power to award costs rather than laying down a prescriptive regime requiring the disciplinary regulator to be entitled to costs other than in exceptional circumstances. This type of approach had previously applied, for example, in the case of disciplinary proceedings involving legal practitioners. The legislature could hardly have been unaware of the reinstatement power under the National Law yet apparently chose not to distinguish between those proceedings and essentially disciplinary proceedings. The costs power was broadly drafted such that the principle applied that costs would normally follow the event in all proceedings in the Tribunal.
The recent decision of the Tribunal in Ristevski seemed to accept that there could be cases where no cost order or an order for costs could be made in favour of a successful applicant practitioner. This follows from the fact that it identified what was described as particular circumstances demonstrated in Donnelly and Roberts. This is not to suggest that special circumstances are required in order for such orders to be made regarding costs.
The submissions for the Council in this case emphasised the role of contradictor it plays in reinstatement cases. It cannot be the case, therefore, that because it is most desirable that the Medical Council appear in such cases to provide assistance to the Tribunal that it must invariably be awarded its costs even if unsuccessful. That approach removes almost entirely the broad costs discretion identified by the Court of Appeal. As contradictor the Council has no special status granted to it by the legislature to secure its costs no matter what the result of the case. Like all those who appear in these types of proceedings in the Tribunal, a case has to be made for the other party to pay costs.
For the reasons identified by the Court of Appeal it is erroneous to argue, as has occurred in this case, that the failure to award costs to the Council is to penalise the Council or the members of the Council. Cost are not awarded to penalise those who are unsuccessful.
Applying these principles and approaches it is clear that the Council has been unsuccessful in the primary case it raised in the Tribunal. That primary case was that Ms Goh should not be reinstated at all for a number of reasons that have not persuaded the Tribunal. The final paragraph of the written submission occupied three lines and stated that "strictly in the alternative", should the Tribunal find that Ms Goh is a fit and proper person, conditions suggested by the Council in a document handed to the Tribunal, should be imposed. It was on the Tribunal's initiative that encouragement was given to the parties to discuss possible conditions in light of Ms Goh's evidence that she would expect conditions to apply if she was reinstated and declaring her willingness to abide by any condition thought by the Tribunal to be appropriate.
What remains as something of a mystery is the continued and resolute opposition to Ms Goh's reinstatement although the Council called in its own case evidence from Dr Fisher, who supported her application subject to conditions. The Tribunal was left with the evidence of three senior psychiatrists who all concluded that Ms Goh had addressed her addiction, was insightful in that regard, and had demonstrated remorse and contrition. They all agreed that her return must be subject to conditions. None altered their view to the extent that they were asked to do so in light of matters that arose in the evidence or cross examination of Ms Goh. In particular, the lack of strict compliance with the Council protocol for UDT was not sufficient to cause a reconsideration of the conclusions stated in their reports. No explanation was ever offered for the Council's primary position in light of this very persuasive evidence. It was never explained to the Tribunal how this evidence could be rejected or accorded little weight.
Having regard to the failure of the primary case pursued by the Council, the submission for Ms Goh that there be no order made for costs seems modest. In all the circumstances, it is a decision that the Tribunal is prepared to make. There will be no order for costs in this case

Goh v Medical Council of New South Wales

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Judgment (51 paragraphs)

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Cases Cited (7)

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