HCCC v Iskander - [2015] NSWCATOD 30 - NSWCATOD 2015 case summary — Zoe

NSWNSWCATOD

HCCC v Iskander

[2015] NSWCATOD 30

NCAT Occupational|2015-02-18

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2015-02-18

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

Introduction

Dr Nancy Magdy Fayez Iskander (the practitioner) is a junior medical practitioner whose registration was suspended by the Medical Council of NSW on 4 February 2013 because she was found to be impaired and a risk to the public. Her impairment was caused by untreated major depression, and by substance abuse.
The Health Care Complaints Commission (the HCCC) referred an inquiry into a complaint brought against the practitioner to the Tribunal. By the date of the hearing the practitioner conceded she was guilty of unsatisfactory professional conduct and professional misconduct. She also conceded that she suffers an impairment.
Since her suspension the practitioner has been consulting a psychiatrist, a psychologist and her general practitioner on a regular basis. Her psychiatrist now opines that she is, subject to certain restrictions on her practice, fit now to resume practice. That opinion is substantially replicated in the view of Professor Singh, the expert retained by the HCCC to examine the practitioner and to give evidence at the hearing. It is also Professor Singh's opinion that practitioner will not be able to cope as a qualified specialist emergency doctor. This is the field the practitioner proposes she should follow as a trainee if her registration is re-instated. His view is that the practitioner will need to be under the care of her psychiatrist for at least five years during which period she will need to continue taking anti-depressant medication.
Shortly prior to the commencement of the hearing the practitioner substantially admitted all the particulars in the 4 complaints set out in the complaint lodged with the Tribunal on 6 August 2014. Included in the practitioner's admissions is an admission that she was and is impaired. Consequently, the primary focus of the proceedings was directed to appropriate protective orders.
The HCCC seeks orders that the practitioner's registration be cancelled, and that a period of one year elapses prior to any re-instatement application. In the alternative, but not its primary position, the HCCC seek a continuation of the practitioner's suspension for a period of 12 months, and on expiry of the suspension, that the practitioner's registration be subject to specified practice and health conditions, including critical compliance conditions.

[2]

Background

The following factual matters, unless noted by us to be an assertion, are established to the requisite civil standard.
The practitioner, who is currently aged 32 years, was born in Egypt and migrated as a child with her parents to New Zealand. She is a New Zealand citizen. She is single but was briefly engaged to a teacher who lives in France. Since her registration was suspended she has been unemployed. She has no entitlement to Centrelink benefits because she is a New Zealand citizen.
The practitioner graduated in 2006 with a MBBS from the University of Otago, New Zealand. She was first registered in Australia on 5 January 2007. Her registration was suspended by the Medical Council of NSW (the Council) on 4 February 2013 and remained suspended at the date of the hearing.
The practitioner was educated in Saudi Arabia in an English speaking school. She is fluent in three languages (English, French and Arabic).
The practitioner's parents are both medical practitioners. Her father, in recent years, has practised both in Australia and Egypt. The practitioner is currently living with her parents in Victoria. The practitioner's sister is a dentist and lives in close proximity to the practitioner.
The practitioner is a member of the Coptic Orthodox Church and is actively involved in the practice of her faith.
In 2005 the practitioner completed, as a trainee intern, an elective in Obstetrics and Gynaecology at the El Khalifa General Teaching Hospital, Egypt.
In 2007 the practitioner completed her internship at Goulburn Valley Base Hospital. During her internship she experienced clinical placements in orthopaedic surgery, general medicine, general surgery, as well as two placements in emergency medicine.
In 2008 the practitioner completed her second year residency at Barwon Health. She again undertook at number of placements at Hamilton Base Hospital.
The practitioner completed her third year residency in 2009 at Royal Melbourne Hospital. Again, she undertook a number of clinical placements during this year including emergency, and trauma. In the latter placement she combined the roles of resident and "un accredited registrar jobs".
In 2010 and 2011 the practitioner was engaged in a number of locum positions at various hospitals including three rural NSW Hospitals and one Victorian hospital. In the NSW hospitals she asserts she was the sole doctor working in emergency.
The practitioner commenced working as a GP registrar at Corowa Medical Centre (the centre) in February 2012 as part of the GP training program with Bogong GP Regional training.
The practitioner asserts a history of back pain which she attributes to "many hours of standing …while undertaking a surgical term". She asserts she used Panadol or Nurofen for her back pain. She took Phenergan if unable to sleep after a shift.
In about March 2012 the practitioner was assigned additional duties. She was put on the call roster for Corowa Hospital (the hospital). The practitioner says she had two nursing home patients under her care. She also records that "[t]here were no resident doctors at the hospital. There was one orthopaedic surgeon and one general surgeon who were visiting medical officers".
The practitioner asserts "I found it very difficult to work at the hospital and found the work far more demanding than it had been on the previous occasions I worked in country hospitals". She relates difficulties with working with the nurses who she asserts had "an expectation …that I would come into the hospital even if it was something that could be dealt with over the phone".
The practitioner asserts she started to have problems sleeping even when she was not on call. On 2 March 2012 the practitioner consulted a doctor at the Centre to obtain prescriptions for anti-depressants, having self-diagnosed that she was depressed. She lied to the doctor telling her "that I had been prescribed Lexapro by a doctor in Melbourne and that I have left the prescription in Melbourne". She also, untruthfully, told the doctor she had been taking Lexapro for 2 months without improvement and wanted to try a different anti-depressant. She obtained prescriptions for Lexapro and Fluoxetine.
The practitioner asserts she took Lexapro for approximately one month but discontinued the medication when she experienced side effects. She asserts she did not take Fluoxetine.
On 3 April 2012 the practitioner created a medical record in the name of a close family member (Patient A). She asserts that initially the file was created as an example to ensure she could create a patient file for a patient at the hospital, but she says "when I started using [Patient A's] record to write prescriptions and realized how easy it was, I kept the record". It is not in dispute that Patient A has never attended the Centre as a patient.
In April 2012 the practitioner commenced taking Stilnox. She wrote prescriptions for this drug in Patient A's name. When she did not sleep, she increased her dosage of Stilnox from 1 tablet to 2 tablets per night. Eventually she took 5 to 6 tablets a night. Throughout April 2014 she regularly prescribed Stilnox and Panadeine Forte in Patient A's name, but with two exceptions, she used the drugs.
The practitioner continued to write Stilnox and Panadeine Forte prescriptions regularly through May 2012.
In late May 2012 and into June 2012 the practitioner commenced writing prescriptions in Patient A's name, but for her own use for Endone as well as Stilnox and Panadeine Forte. In late June 2012 the practitioner additionally wrote prescriptions for Temazepam for her own use. She commenced re-prescribing in Patient A's name, but for her own use in August 2012 and continued to regularly prescribe for herself predominantly Stilnox and Panadeine Forte until December 2012.
The practitioner relates taking Stilnox one night when she was on call. She asserts the next day that she has no recollection of what was discussed while she was on call. She asserts she did not take Stilnox again when she was on call.
The practitioner asserts by May 2012 she was having real difficulties coping with work. She relates that she was feeling very tired, lost interest in cooking, put on weight, stopped going out or seeing friends and ceased going to Melbourne to visit her family on a regular basis.
The practitioner asserts that she also missed the comfort and support she obtained from attending church services there being no Coptic church in Corowa.
In mid 2012 the practitioner asserts she was requested, by a charity worker from a Foundation with which she has been associated, to assist an overseas patient, who had been diagnosed with Amyotrophic Lateral Sclerosis (ALS) to obtain medications for this patient as he could not afford them. The practitioner received some medical records for the patient. She thereafter wrote prescriptions in Patient A's name for Rilutek on 24 October 2012, 22 November 2012, and 26 November 2012 together with two further prescriptions. She presented the prescriptions at pharmacies in Albury and Corowa, obtained and paid in full for the medication. The practitioner asserts she gave the Rilutek to her sister who took it to Egypt when she travelled there on holiday in December 2012.
In June 2012, prior to holidaying in Paris, the practitioner obtained a prescription for Stilnox from another doctor at the centre on the basis she needed sleeping tablets for the trip. The practitioner asserts "I asked [the doctor] to give me the prescriptions as I wanted to try and normalize my medication regime by having another doctor prescribe Stilnox for me".
In Paris the practitioner spent time with a man she had met in 2011. He is a Syrian Catholic. The man proposed to the practitioner. The practitioner says she was in love with this man and wanted to marry him. She asserts, because of their cultural backgrounds, the man knew he would have to speak to her father about the proposed marriage. When she returned to Australia and told her parents about her relationship she asserts her father was angry, was not accepting of the religious differences between herself and the man, and explained the man, a teacher, was not good enough for her because he was not a health professional. She also records: My father was also suspicious that the man did not really love me but only wanted to marry me so he could come to Australia to escape the Syrian crisis.
The practitioner asserts that she has always been dominated by her father, and notwithstanding it was difficult for her to oppose him, that she remained in contact with the man by telephone. She asserts her mother has been subject, over many years, of verbal and physical violence perpetrated by her father.
On her return from Paris the practitioner says for approximately two weeks she felt she was coping well with work. But after that period she describes her belief that her supervisor at the centre, Dr H Deiter, (Dr Deiter) was "interfering more and more in my work".
The practitioner relates a history of loneliness and feelings of isolation in Corowa at this time. The practitioner ceased attending practice meetings held each Friday on the basis the environment at the meetings was not helpful to her.
In August 2012 the practitioner consulted her direct supervisor, Dr M Love (Dr Love). She asserts she told Dr Love she was not sleeping, that she was eating at night without realising what she was doing and sleep walking. She did not disclose to Dr Love her Stilnox abuse at this time. Dr Love referred her to a neurologist, but the practitioner failed to attend an appointment with the specialist.
In about August/September 2012 the practitioner consulted one of her fellow registrars. She told the registrar she was depressed and obtained a prescription for Fluoxetine 20mg which she commenced taking.
The practitioner, in her statement dated 14 January 2015, asserts that Patient A visited Corowa in September 2015. She asserts Patient A had injured her shoulder on the bus and that she examined her and prescribed Oxycontin, Valium and Fentanyl patches for her. The practitioner asserts Patient A did not tolerate Oxycontin, that she took it away from her and commenced using it herself for back pain. The practitioner concedes she has never discussed prescribing for Patient A with Patient A's general practitioner.
In October 2012 the practitioner attended a meeting with the centre's practice manager and Dr Deiter. Concern was expressed about the practitioner's behaviour. The practitioner's on call requirements at the hospital were reduced to conclude at 10pm at night.
The practitioner's father commenced visiting her at Corowa on a monthly basis. The practitioner asserts he father wished to make sure she was not in contact with her fiancé. She asserts he was also critical of her weight gain, and devised diets for her. She further asserts her father's visits were "very stressful".
On 1 November 2012 the practitioner took 10 days annual leave, which she spent at her parent's home.
On 12 November 2012 when she returned to Corowa the practitioner took 5 to 6 Stilnox tablets about 2am. She attended work in the morning, but went home at lunchtime to "have a nap". When she did not return to work the practice manager, with the assistance of police, attended and entered the practitioner's home where she was found semi-conscious on the bed. The practitioner was conveyed to the hospital where she was assessed by Dr Deiter. She was discharged from the hospital and placed on sick leave. Up until 19 November 2012 she was intermittently visited by a nurse.
On 29 November 2012 the practitioner consulted a psychiatrist, Dr Ramjee. She was referred to Dr Ramjee by Dr Deiter. Dr Ramjee ordered urine drug screens which revealed opiates.
On 2 December 2012 a meeting was held between the practitioner, Dr Deiter and the practice manager. The practitioner asserts she was informed that a number of doctors considered she was impaired, and that a notification would be made to the Australian Health Practitioner Regulation Agency (AHPRA).
On 6 December 2012 the practitioner wrote a prescription for 120 Panadeine Forte tablets in Patient A's name on a prescription pad of one of the other practitioners from the centre. She intended to use the Panadeine Forte herself.
On 11 December 2012 the practitioner attended a pharmacy in Melbourne to obtain the Panadeine Forte. The pharmacist queried the prescription and contacted the centre. After the pharmacist's conversation with the centre, she did not dispense the prescription.
The practitioner asserts she commenced using Panadeine Forte prescribed in Patient A's name for her back pain initially taking 2 tablets at lunch time. She asserts "by the end of my time in Corowa I needed to take around six a day to manage the pain".
After the practitioner's conversation with the pharmacist she telephoned the practice manager and told her she had created a patient file in Patient A's name. In her statement the practitioner says "I thought it would be better if I had told her what I had done". In her oral evidence before us the practitioner conceded she had asked the practice manager not to reveal she had created a file in Patient A's name and that she asked her to destroy it.
On 14 December 2012 the practitioner attended a meeting at the centre. She was stood down indefinitely from the centre on leave without pay.
On 20 December 2012 the practitioner consulted Dr Abraham at the Gardens Medical Centre.
On 4 January 2013 the practitioner made a notification to AHPRA that she had an illness.
On 24 January 2013 the practitioner again consulted Dr Abraham and he prepared a Mental Health Plan for the practitioner. The practitioner commenced seeing a psychologist, Ms Linda Hansen on that day and continued to consult her until April 2013. Treatment included Cognitive Behavioural Therapy. The practitioner asserts she did not find Ms Hansen's assistance helpful and she commenced seeing a new psychologist in 2014, Ms Gloria Wong. At the date of the hearing the practitioner was seeing Ms Wong on a monthly basis, having earlier attended sessions with her each fortnight.
On 4 February 2013 a s150 inquiry was held. The Council delegates ordered that the practitioner's registration be suspended.
Following the s150 proceedings the practitioner commenced living with her parents. She ended her engagement. She unsuccessfully sought employment in the pharmaceutical industry and other occupations.
In May 2013 the practitioner commenced consulting Dr Colin McIver (Dr McIver), a psychiatrist. The practitioner was originally seen by Dr McIver on a fortnightly basis and, by the date of the hearing, he was seeing the practitioner on a monthly basis.
Commencing in January 2014 the practitioner commenced consulting Dr Tony Atkins (Dr Atkins) at Berwick Healthcare. She remains a patient of Dr Atkins and sees other practitioners in the practice if he is not, for any reason, available. The practitioner asserts she agreed to have urine drug testing as she understood this would be a pre-requisite if she wished to return to work.
The practitioner was referred by Dr Atkins to undergo an MRI as part of the investigation of her back pain. The practitioner asserts the MRI disclosed degenerative changes. She was subsequently referred to a pain specialist who prescribed Lyrica. The practitioner asserts she now takes Lyrica morning and evening and Nurofen or Panadol during the day for back pain management. The practitioner records she was advised to undergo a pain management program at St John of God Hospital but could not afford to do the program recommended.
In May 2014 the practitioner commenced undergoing random drug screens ordered by Dr Atkins with results sent directly to him. The practitioner acknowledges that her urine drug screens were positive on 3 occasions (3 March 2014, and 18 and 19 September 2014). The practitioner asserts in early September 2014 she developed an exacerbation of back pain, that she took some of her father's medication from Egypt (Myolgin) which she believed was an anti-inflammatory. She asserts she was unaware the drug is an opiate.
In July 2014 Dr Atkins referred the practitioner to a sleep clinic for a sleep study. She attended the Monash Lung and Sleep Clinic on 14 July 2014 for assessment. She asserts results of the testing suggest she may have "significant sleep disordered breathing". Although further studies were recommended, the practitioner says she is unable to afford further investigation.
On 30 October 2014 a urine drug sample of the practitioner was positive for opiates. The practitioner is unable to explain the positive result. She did not become aware of the positive result until shortly before the hearing.
In late 2014 the practitioner, on the advice of her solicitor, contacted the Victorian Doctor's Health Program (the program). She signed a case management agreement with the program in February 2015. She has agreed to maintain her treatment regime and to continue urine drug testing. The practitioner asserts she first discussed the agreement and program with her Case Manager on 6 January 2014.
Two weeks prior to the hearing the practitioner commenced hypnotherapy on the recommendation of Dr McIver. As the practitioner could not afford to pay for the treatment, Dr McIver arranged for his colleague to bulk bill the practitioner's consultations.
At the time of the hearing the practitioner was taking Avanza prescribed by Dr McIver. She was studying for her exams in Emergency Medicine with plans to sit for the exam scheduled for August 2015. She may only sit the examination if she is registered.

[3]

The Complaint and protective orders sought by the HCCC

An application annexing a complaint dated 14 August 2014 was lodged with the Tribunal on 6 August 2014.
At the commencement of the hearing leave was granted, without objection, to formally amend the complaint. Particular 7 of complaint one was abandoned. Complaint one particular B was amended to delete where appearing "June" and substituting in lieu "August".
There are four complaints agitated by the HCCC. Complaint one asserts unsatisfactory professional conduct within the meaning of s 138B of the National Law. Given the framing of the particulars we discern s 138B(1) (a) (b) and (l) are the relevant paragraphs of s 138B (1) on which reliance is placed. We will shortly set out these provisions.
The particulars in respect of complaint one first assert that the practitioner created a false medical record in the name of Patient A. The practitioner concedes this complaint.
Secondly, it is asserted that the practitioner, on a number of specified dates, without exercising appropriate clinical judgment, wrote prescriptions for Panadeine Forte for Patient A. It is also asserted the practitioner issued the prescriptions without an appropriate consultation with Patient A, and without communicating with, or making enquires of, Patient A's treating doctors.
In her supplementary statement the practitioner conceded that each prescription was written in Patient A's name on the relevant dates set out in the complaint, but the medication was used by her.
Thirdly, it is asserted that the practitioner prescribed Valium for Patient A on specified dates contrary to the Poisons and Therapeutic Goods Act 1966 (NSW) and cl 61 and Appendix D of the Poisons and Therapeutic Goods Regulation. The practitioner concedes this complaint, again recording in the schedule to her supplementary statement that the drug was for her own use.
Fourthly, it is asserted that the practitioner prescribed Endone to Patient A on dates set out in the schedule to the complaint without exercising responsible medical judgment, without an appropriate consultation with the patient and without any examination of the patient. The practitioner does not concede she prescribed for Patient A without any examination. She gives evidence of examining Patient A's shoulder at the patient's home. However, she admits, other than on the occasions when she examined Patient A, she did not conduct an appropriate consultation, exercise appropriate clinical judgment or consult Patient A's treating doctors before prescribing. A further admission is made by the practitioner in the schedule to her supplementary report. She acknowledges that she only prescribed Endone for Patient A on two occasions (15 May 2012 and 11 September 2012) and that all other prescriptions of the drug written in Patient A's name were used by her.
Fifthly, it is asserted that the practitioner prescribed Oxycontin for Patient A on the same basis as her prescribing of Valium (detailed above). This particular of complaint 1 is admitted by the practitioner.
Sixthly, it is asserted the practitioner concurrently prescribed, on dates set out in the schedule to the complaint, for Patient A, Endone and Panadeine Forte, Panadeine Forte and Oxycontin and Panadeine Forte, Endone, Valium and Oxycontin, and Panadeine Forte, Endone, Valium and Oxycontin. Again, the practitioner does not dispute she prescribed on these dates ostensibly for Patient A, but she candidly reveals, except for a prescription written on 15 May 2012, all other prescriptions were for drugs she obtained and used herself.
Seventhly, (in particular 8) the HCCC assert the practitioner, in breach of the Poisons and Therapeutic Goods Act 1966 (NSW) inappropriately prescribed Rilutek for a man who lives in Egypt. The practitioner concedes that she wrote the prescription in Patient A's name, obtained and personally paid for the drugs. She does not concede that she did so without any of the patient's records. In her statement she annexed some medical records in Arabic in support of her assertion.
Eighthly, the complaint asserts that the practitioner endeavoured to have a prescription for Panadeine Forte dispensed in breach regulation 24 of the National Health (Pharmaceutical Benefits) Regulations 1960. In her statement the practitioner did not formally concede this particular, but she gave evidence that she was unsuccessful in having a pharmacist dispense the prescription. The practitioner's non admission of this particular was not subject of any extensive cross-examination or submissions during the hearing.
Ninthly, it is asserted the practitioner inappropriately self-prescribed contrary of the Council's guidelines "Guideline for self-treatment and treatment of relatives". The practitioner concedes this particular.
Tenthly, it is asserted in a number of respects, including in breach of the guidelines, and in circumstances where the prescribing could have interfered with Patient A's treating doctors' treatment plans, the practitioner inappropriately prescribed for Patient A, a close relative. This particular is, most appropriately, conceded by the practitioner.
Complaint Two is directed to the manner in which, to the extent Patient A's file created by the practitioner was not false, the records were not properly maintained. Essentially the sub-particulars of this complaint paraphrase the regulations relevant to the content and maintaining of medical records as found in the Health Practitioner Regulations (NSW) Regulation 2010. Complaint 2 is conceded by the practitioner.
Complaint Three asserts, using the language of s 139E of the National Law, (set out later in these reasons) that the practitioner is guilty of professional misconduct. The practitioner concedes this complaint.
Complaint Four, the impairment complaint, asserts the practitioner is impaired by reason of depression and or drug dependence. In the practitioner's supplementary statement, the complaint is conceded in relation to depression but not drug dependence
Ms Sant, counsel for the practitioner, in her opening, after referring to the language in s 5 of the National Law, and the language as pleaded in Complaint Four, maintained the claim of drug dependence could not be maintained.
In his opening, counsel for the HCCC, Mr Britt, explained that, although the HCCC relied on this particular, in light of the evidence, there is no current evidence that the practitioner is accessing drugs (transcript 16 February 2015 p 9). In his final submissions Mr Britt conceded the particular in so far as it relates to drug dependence was not established. He made similar concessions about a number of other particulars in complaint one.

[4]

The relevant law

The first complaint agitated by the HCCC asserts that practitioner is guilty of unsatisfactory professional conduct under s 139 B of the National Law. That section so far as is relevant to this complaint provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following-- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
The third complaint, which alleges the practitioner is guilty of professional misconduct, is brought under s139E of the National Law. That section provides as follows: For the purposes of this Law, "professional misconduct" of a registered health practitioner means-- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The fourth complaint asserts the practitioner is impaired. Impairment is defined in s5 of the National Law in the following terms: "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 or an applicant for registration in a health profession, the person's capacity to practise the profession; ...

[7]

The practitioner's statements and oral evidence

It is unnecessary we refer to much of the material set out in the practitioner's statement as the relevant details are summarised earlier in these reasons under the heading "Background".
In her supplementary statement, the practitioner explained the difficulties she experienced in providing supervised urine samples, and how Dr Atkins had assisted her, in conjunction with the collection nurse, to overcome her embarrassment and inability to produce a urine sample on demand. Her evidence is that she is now able and willing to undergo either thrice weekly or random urine screens.
The practitioner explained she has suffered increased appetite and weight gain on Avanza, and that she has discussed this with Dr McIver. She records, at [15] that Dr McIver has indicated that he may consider reducing her dose of Avanza once these proceedings are finalised.
The practitioner acknowledges in her supplementary statement "there may be restrictions on me prescribing and/or otherwise accessing narcotics and psychoactive medications because I have abused them in the past.". She goes on to state that she will abide by any restrictions place on her registration in terms of prescription and administration of, or access to, medications.
The practitioner states that she learnt about the program from her solicitors. She has signed an agreement with the program under which she has agreed to comply with her treatment plan, and to adhere to the entire program monitoring requirements. The practitioner also records that, as part of the program, she will attend the Caduceus group, a group run exclusively for doctors and medical students with abuse problems. She attended this group for the first time on 9 February 2015.
At [34] of her supplementary statement the practitioner explains I acknowledge that while working at Corowa Medical Centre, I had an impairment, which affected my capacity to practice medicine. I did not realize that I had an impairment at the time and it took me a while to come to terms completely with it. It is only with the benefit of hindsight and with the help from my treating practitioners, that I have come to realize that I had and continue to have an impairment and requirement treatment on an ongoing basis.
The practitioner noted, at [35] of her supplementary statement, her realisation that, if she is allowed to return to practice, her registration will be subject to conditions and she will be required to comply with health provisions.
In her oral evidence in chief, the practitioner explained that, prior to her work at Corowa, she had generally not experienced difficulties in sleeping because of the physically demanding nature of her work. However, she went on to say she had tried Temazepam which she did not find helpful, but had used Phenergan in late 2013 and 2014 both to assist her sleep and for hay fever. It is not controversial that Phenergan is an antihistamine medication available "over the counter". She went on to explain she had not taken Phenergan for the two to three months prior to the hearing. In answers given in cross-examination the practitioner referred to taking Phenergan for a different purpose, namely nausea, (transcript 17 February 2015) but confirmed she had not taken the medication for three months a fact she attributed to the assistance she was receiving from Ms Wong.
In answer to questions posed in cross-examination by Mr Britt the practitioner conceded that she had not been truthful in her explanation to AHPRA, and she had done so knowingly.
The practitioner also agreed she had not been truthful in December 2012 with Dr Deiter about the prescriptions she had written and in her denial that there was a problem with her behaviour. She explained she had been frightened of Dr Deiter at the time.
Significantly, the practitioner gave evidence that 80 per cent of her reasoning in creating the false file for Patient A was so that she could prescribe for herself. She agreed her self-prescribing was inappropriate.
In respect of obtaining the prescription of Rilutek for the patient in Egypt, the practitioner, translating from Arabic, said the medical records disclosed the patient could have ALS, but she said in a phone call from the charity she was told he did have ALS and that the patient was already on Rilutek. Later, she conceded she had not seen any medical records which indicated a positive diagnosis of ALS.
The practitioner acknowledged that Dr Deiter and Dr Love had tried to address her apparent depression in about May 2012.
The practitioner later acknowledged that she had been untruthful in answers given to the delegates in the s 150 proceedings saying that she was fearful and scared when she realised "the magnitude of what happened.." (transcript 17 February 2015 p 100).
When challenged by Mr Britt as to why she had not enrolled earlier in the program the practitioner explained she did not know the program existed until her solicitor told her about it.
The practitioner was challenged about her positive urine sample from October 2014. She said she was unable to offer any explanation other than she ate a lot of crackers and cheese and may have consumed poppy seeds accidently.
The practitioner gave evidence that, since her registration was suspended, in addition to her emergency medicine studies (which she has undertaken in the last 12 months) she had maintained a subscription to the New England Journal of Medicine, but had undertaken no other formal continuing professional development. This, she explained, was predominantly because during 2013 she did not think she would want to return to the practice of medicine.
In an answer given in cross-examination, (in rebuttal of Professor Singh's opinion that the practitioner would not cope once she finished her emergency department training and had to assume the mantle of the supervisor with ultimate responsibility), the practitioner said Q. Once you graduate as an ED specialist, would you not then be in a situation where you are where the buck stops? A. Yes. Q. You would still have that stress of being there's no one else to talk to ‑ I'm the boss, they're talking to me? A. But I'll have my experience at that point, I'm counting on that. And in all the places that I've worked in in the metropolitan setting at least, because of the ten hour shift, so you end up working four out of five days and you actually don't work for the full four days clinically, you do possibly two days of clinical and two days administrative work where you could follow up on blood culture results, if there's a teaching session that you need to do with a more junior person you'll do that so actually it's not full time. Q. It's a limited clinical role? A. Yes. That's what I've discussed with people and that's what they usually have done, because if they do fulltime clinical then that's really stressful. (transcript 17 February 2014 p 126)
The practitioner expanded her evidence about her ability to cope as an emergency department specialist in response to a question posed by the principal member as follows: PRINCIPAL MEMBER Q. You were in the hearing room when Professor Singh gave his evidence, and he expressed considerable doubt about you being able to cope long term once you graduated if you stayed in ED. You've explained some of things, I think, to us now in your answers to Dr Howle, but in fairness, are there other things you might like to say about that, or why you would ‑ if you disagree with that view, why you disagree with it? A. I think the forethought that comes to my mind is that it is at least four to five years. If this was me in 2012 and I'm talking to you, I would be crying all the time, where this is an extremely stressful situation, I would have been able to cope with it, but I'm talking and I'm able to formulate my thoughts. So in four to five years, a lot can change, and my confidence comes down to knowing that I can cope with the work load in terms of, have I seen this before, yes, I have, I know the management and what's the pathways of dealing with this. So I'm banking on my clinical expertise mostly.
The practitioner went on to say that, if she was unable to obtain an emergency training position, she would accept placement in any other sub-speciality such as cardiology, as all would be relevant to emergency medicine.

[8]

Dr Jennifer Orman

Dr Jennifer Orman (Dr Orman) provided an expert report on behalf of the HCCC. She was not required for cross-examination. Given the practitioner's concessions, it is unnecessary we discuss her report in depth, although we rely on her evidence in support of our independent conclusions in respect of our findings of unsatisfactory professional conduct and professional misconduct.
At the commencement of her report Dr Orman sets out her qualifications and experience. She is a general practitioner with post graduate qualifications in mental health. At the time of her report, the practitioner had not conceded the majority of the prescriptions written in the name of Patient A, were in fact for herself.
Dr Orman opines that the practitioner's prescribing for Patient A, a close relative, "on a regular basis" was inappropriate and attracts her strong criticism. She is also critical of the medical records in respect of Patient A, of the filling of prescriptions by the practitioner and taking them to Patient A, prescribing medications for Patient A when she visited Corowa, and failure to consult with Patient A's treating doctor.
Dr Orman, unsurprisingly, is strongly critical of the practitioner's conduct in creating a false medical record in the name of Patient A and using the file to prescribe for herself.
In dealing with the question of the prescription of Rilutek for the man in Egypt who the practitioner had never seen, Dr Orman opined: Appropriate prescribing behaviour involves seeing a patient, taking a history, performing an examination, investigating the cause of the problem and making a diagnosis - to ensure that the drugs prescribed are for the right condition and the right person. Prescribing is also appropriate when a diagnosis has already been made and documentary evidence of that diagnosis is available. It is however never appropriate to write a prescription for a person unknown to you at the request of a third party. [The practitioner's] behaviour in prescribing for a person unknown to her at the request of a third party is completely unacceptable by the usual standards of medical practice. The nature of the drug, its cost and the fact that she arranged herself for it to be sent out of the country are additional issues which compound the problem but the major behavioural issue is writing the prescription in the first place.
We had no hesitation in accepting Dr Orman's evidence which we note was not subject of any challenge.

[9]

Professor Bruce Singh

Professor Singh is a consultant psychiatrist who carries on practice in Richmond, Victoria. He is a fellow of the Royal Australian and New Zealand College of Psychiatrists, and a fellow of the Royal Australian and New Zealand College of Physicians. He has a doctorate (Ph.D) from the University of Newcastle, and is a Professor at the University of Melbourne.
Professor Singh provided two reports (27 February 2014 and 3 February 2015). Professor Singh gave evidence by telephone.
In his first report Professor Singh, after summarising the practitioner's history in Corowa, noted that he had spoken to the practitioner's treating psychiatrist (Dr C McIver). He noted Dr McIver had described the practitioner when first seen by him as "very disorganized, anxious and depressed".
In his first report Professor Singh opined: Her current mental state is good, her mood is euthymic. She shows considerable regret for her actions, her insight has returned and my conversation with her psychiatrist suggests that he feels that she is now fully recovered in terms of anxiety and depression with a combination of medication and CBT.
However Professor Singh went on to record: I would note that the amount of antidepressant medication she is taking is substantial, which would suggest to me that her depression during 2012 was profound, albeit the fact that she didn't recognise it or seek any treatment at the time. She is tolerating high doses of medication without any side effects and obviously needs to continue on this. Her current mental state is stable. I cannot offer any opinion as to whether she continues to self-medicate. If she is not, then provided she has support from her mother, friends and her church, then she should be able to make a return to medical practice with significant supervision, so long as if [sic] she continues to accept and comply with psychiatric treatment.
In his second report, prepared very shortly before the hearing, Professor Singh referred to a "one off report" by Dr Peter McArdle which he described as consistent with his first report. We pause to note that Dr McArdle is the psychiatrist retained by the practitioner's lawyers to provide an expert report for the hearing. His report was in evidence before us, but he was not called to give evidence. Dr McArdle, who saw the practitioner in December 2014, diagnosed her as suffering Major Depressive Disorder and Substance Dependence Disorder.
Professor Singh also noted that Dr McArdle opined that the practitioner's illness had significantly improved from the preceding two years with treatment and that he, Dr McArdle, believed the practitioner could return to practice with "appropriate assistance and remedial education, particularly around prescribing".
Professor Singh referred to correspondence from Dr Atkins, and that of Ms Wong (each of whose evidence we will refer to shortly). Professor Singh agreed with a number of comments made by Ms Wong notably that, "because of [the practitioner's] 'combinations of mood symptoms and lack of social support'", these conditions may influence her ability to cope with additional stress later in her career.
Professor Singh went on to note that Dr McIver had reported the practitioner's regular attendance, acceptance of medication without substance abuse relapse, and that her medication had been reduced to Fluoxetine 60mg per day and Avanza 30mg per day as well as Lyrica for chronic pain. Professor Singh added a cautionary note about the practitioner's medications explaining: I should comment, however, again that even at the current doses these are substantial combined doses of antidepressants, ….and given the patient is taking them with no side effects does suggest that her depression was/is severe even in remission.
In response to the question "Given that [the practitioner] has been off work from November 2012 is she competent to return to work?", Professor Singh opined: All the evidence that is available to me, including my own assessment of her, is that she would be competent to return to work, a view confirmed by her treating psychiatrist and an independent psychiatrist. Given that she has been away from practice for 2 years, I think this return should be gradual. I think this would require a period of remediation and an assessment of her current knowledge of medicine to determine whether she has kept up to date would be necessary and depending on her results a period of remediation and/or refamiliarisation with medical practice may be needed.
Professor Singh went on to support recommendations made by Dr McIver and Dr McArdle of "appropriate supervision, restricted hours and limited responsibility for patients initially and a supportive work environment to allow her to ease back into medical practice".
When asked to comment on the practitioner's plans to specialise in emergency medicine, Professor Singh was pessimistic saying "I am somewhat sceptical that she would be able to do this". He not only highlighted the stress of such a role, but also commented on the easy access to the potent drugs, particularly opioids and sedatives, which the practitioner has abused. Professor Singh again repeated this opinion in his oral evidence.
Professor Singh, most appropriately we would say, referred to "Ms Wong's concerns in her report about ongoing vulnerability of this young woman because of her personality and background as she attempts to reignite her medical career".
Professor Singh's recommendations if the practitioner is permitted to return to practice, are set out in the second section of his second report at [3]. He opines: I think if she were to return to practice it should be gradual. It should be conditional on her regular visits to her psychiatrist and 3 monthly reports from him about her progress. I think it would be appropriate for her to be case managed by [the program] and if possible for there to be random urine tests which she would have to submit to, in order to assess if there was any backsliding in terms of drug abuse. I think it would probably also be appropriate to minimise or perhaps prevent her from prescribing narcotics and/or even sedative hypnotics again although this might not be really realistic if she were to be in any kind of face to face medicine. If so, then any such prescribing should be closely supervised.
In his oral evidence Professor Singh referred to the cultural factors which had made it difficult for the practitioner to disclose her problems explaining that the practitioner is now able and willing "to disclose and seek help when required". (transcript 16 February 2015 p 18).
Professor Singh carefully differentiated his comments about the practitioner's ability to cope in training as an emergency department specialist and when she qualified as a specialist. He said he was confident she could train in this speciality but emphasised again the comments in his report about the risks such a speciality would pose to this young woman once a qualified specialist.
Professor Singh agreed that, should the practitioner return to work in an emergency department as a trainee over the next two to three years, provided she underwent random urine drug screens, his concerns about her handling and administering drugs would be ameliorated. He conceded the type of safeguards that are in place in an emergency department; although he had earlier in his oral evidence expressed some concerns about the practitioner having prescribing rights even if limited to a hospital setting.
Overall, we were satisfied that Professor Singh, subject to the caveats he expressed about suitable conditions being placed on the practitioner's registration, supported her immediate return to practice.

[10]

Dr Peter McArdle

As noted above, Dr McArdle provided an expert report at the request of the practitioner's solicitors. He is a consultant psychiatrist who carries on practice in Melbourne.
The practitioner's reporting of her history is set out in detail in Dr McArdle's comprehensive report, including her report of lack of insight in 2012, and the fact that for about nine months after her suspension, the practitioner did not contemplate a return to the medical profession.
In commenting on the practitioner's presentation at interview, Dr McArdle stated: At interview [the practitioner] was well groomed, conducted the interview in a frank and open manner. Her affect was reactive and free of obvious depression. There were no obvious quirks or personality disturbances that were apparent during the interview. There were no signs of any sedation or slurred speech suggestive of drug effect. In regards to her insight into her situation she spoke about her problems with substance abuse frankly and openly and I got no sense of her trying to defend the position or avoid talking about it in contrast to the transcript from the hearing in November 2012.
Dr McArdle went on to opine: …she now has a good understanding of her mental illness in particular substance abuse. She has sought out appropriate psychiatric and psychological assistance and now talks in a frank and open manner about her behaviour, about its impact on her medical practice at the time, and her regret about that
Dr McArdle referred to the unusual factors which made it difficult for the practitioner to disclose her problems in 2012 and opined that she "is in a much different and improved state" noting that she had been free of substance abuse for two years. He commended the practitioner for seeking out appropriate treatment and opined that she now has good insight. He concluded his report saying: I don't believe [the practitioner] is a danger to the community. I believe she is fit to return to work as a medical practitioner, likely with conditions on her practice

[12]

Dr Colin McIver

Dr McIver is a general Psychiatrist. He holds the degrees of MB.BS, MBA, MISM and is a fellow of the Royal Australian and New Zealand College of Psychiatrists. He has been the practitioner's treating psychiatrist since April 2013.
Dr McIver provided a report dated 13 January 2015 in which he responded to a series of questions posed by the practitioner's solicitors. His diagnosis is referred to by Professor Singh in his report and detailed by us above. Dr McIver supports the practitioner's return to work with a period of re-introduction, limited hours and responsibilities with initial close supervision. He opined the practitioner "demonstrates good insight and reasonable judgment with regard to self-management".
In his oral evidence Dr McIver, like Professor Singh, supported random drug testing as an appropriate safeguard to be put in place as a condition of the practitioner's registration. He also supported a condition that the practitioner's prescribing rights, if her suspension is lifted, should, in respect of Schedule 8 and Schedule 4D drugs, be limited to hospital patients.
Dr McIver also supported the practitioner's plan to seek a position as an emergency department trainee. He opined: Q. You were asked some questions by Mr Britt about whether emergency department work was generally stressful, and you responded that what one found stressful was a very individual thing. Are there particular factors about emergency medicine work that would make it suitable for [the practitioner], or less stressful for her than it might be for some people? A. On the whole, emergency department work, especially larger emergency departments, is a very protected environment, so there are lots of colleagues around to bounce things off. There are lots of very senior nursing staff to bounce things off. There's more opportunity for peer support, and there's more opportunity to share bad things, rather than hold it to yourself, whereas general practice in itself can be quite isolated. I see it as almost the opposite. Also, emergency department work is practically walk in, walk out, and to leave it behind, whereas a lot of other fields it's not as clear cut when you start and when you finish work. So, those sorts of things, there's much more peer support, much more opportunity to talk to other and get other ideas. They would be very beneficial for [the practitioner].

[14]

Discussion and conclusions unsatisfactory professional conduct and professional misconduct.

Mr Britt submits, and we agree, that in considering the particulars pleaded in reliance on s 139B (1) (a) the test (paraphrased) involves "an objective assessment of the practitioner's conduct against the standard of conduct reasonably expected of an equivalent practitioner". It is against that criteria we have judged the practitioner's conduct where relevant. He further submits that although the words "improper" and "unethical" as found in s 139B (1) (l) are not defined, assistance can be gained from the what the High Court said of impropriety in R v Byrne (1995) 193 CLR 501 at 514-515. In relation to "unethical conduct" he refers to the Macquarie Dictionary definition of "unethical" which is as follows: Contrary to moral precept; immoral, in contravention of some code of professional conduct
Given the practitioner's concessions, as we have already noted, the central focus of this hearing was on whether or not the practitioner's registration should be cancelled for one year, or suspended for that period and then conditions apply, or an immediate return to practice, albeit with conditions. Therefore, our discussion of the particulars in the complaint is not extensive.
The evidence before us is unequivocal. We are satisfied, that each of the prescribing complaints is established by Dr Deiter's statement, the medical records, the patient's own evidence and the evidence of Dr Orman except in what were described by counsel as matters "at the margins". We refer to these exemptions briefly below.
We accept as truthful the practitioner's evidence that she did examine Patient A's shoulder. We accept, save for this sub-particular, Particular 2 is established. We note, given the practitioner's concessions that the drugs on specified dates were for her own use and not that of Patient A that Particular 3 as pleaded is not established. We also accept as proper, given the evidence, Mr Britt's submission that Particular 5 (b) is not established. We likewise accept his submission in respect of Particular 6 (b) and (c).
The practitioner maintained up until giving her oral evidence that she did not prescribe Rilutek without first viewing medical records which established a diagnosis of ALS. We note that on translating the medical records in her possession from Arabic to English at the hearing the practitioner conceded there was no confirmed diagnosis of ALS, rather she had relied on information from a third party. We accept the opinion expressed by Dr Orman in respect of this aspect of the complaint. No matter how well intended the practitioner may have been at the time of prescribing, her intentions were misplaced, and improper. We are satisfied this particular is established to the requisite civil standard.
As we noted earlier in these reasons, there was scant evidence and cross-examination in relation to the facts underpinning Particular 9. The HCCC rely on the fact the medical records maintained for Patient A disclose no assessment of the patient, Dr Deiter's complaint to AHPRA, the practitioner's admission that Patient A could obtain Panadeine Forte from her own general practitioner, Patient A's statement that she was seeing her general practitioner, and the practitioner's admission she wrote the relevant prescription. However, in his final submissions, Mr Britt candidly acknowledged given the drafting of the particular the HCCC had not established this particular to the requisite standard. We agree. We are satisfied Particular 9 is not proven.
We find Particular 10 is established. While the guideline is not mandatory, the practitioner's prescribing in this case was not a "one off" or emergency prescription when no other practitioner was available. We are satisfied the manner she used to self-prescribe constitutes unsatisfactory professional conduct.
We agree with and accept Dr Orman's evidence about Particular 11.
Ms Sant opened by submitting the impairment complaint as framed in respect of drug dependence, being a current condition, could not be maintained. She pointed out that the practitioner's experts refer to her drug dependence being in remission, and that she has been "clean" for two years.
Putting aside the drug screens, which were positive of opiates in September 2014, and our discussion about the practitioner's use of Phenergan, we find merit in Ms Sant's submission. We note Mr Britt, as distinct from the position adopted in opening, agrees with her submissions in his written submissions. We found Dr Atkins' evidence, and that of the practitioner, about the medication used by the practitioner in September was an innocent mistake caused by lack of knowledge of the pharmacological properties of the medication.
We were concerned about the practitioner's use of the over the counter pharmaceutical, Phenergan. In some instances the use of this drug by the practitioner was said to be for hay fever, at other times for nausea, or to assist with sleeping. Dr Atkins candidly admitted that Phenergan use was disclosed regularly in the practitioner's urine drug screens. The practitioner's evidence is that, as a result of assistance received from Ms Wong, she had not used Phenergan for approximately two to three months prior to the hearing.
Balancing the relevant evidence, and accepting as we do the evidence of Professor Singh, Dr McArdle and Dr McIver on this topic, we are not satisfied the impairment particular as it relates to current drug dependence is established.
We do, however, accept the evidence of each of the medical experts that the practitioner has a depressive illness, a fact acknowledged by the practitioner and that she will continue to need regular and ongoing treatment and medication for up to five years. The impairment complaint in relation to depression is established.
Having regard to the practitioner's conduct in creating a file for Patient A, who was not at any time a patient of the Corowa practice, prescribing inappropriately for Patient A, and self-medicating we are satisfied that the practitioner is guilty of multiple instances of unsatisfactory professional conduct.
It is also noteworthy that the practitioner's concessions, although made before the commencement of the hearing, were not made until late in the day, and that her supplementary statement was only received shortly prior to the commencement of the hearing. We find it has taken the practitioner some time to come to grips with the reality of her unprofessional conduct, but accept she now demonstrates insight.
The practitioner's lack of insight in 2013 is cogently demonstrated by her conduct before the delegates at the s150 hearing where she was deliberately untruthful. The purpose of such a hearing is to ensure the public are not exposed to the harm which may be caused by a practitioner who may present a risk to their safety. Against this background it is essential that a practitioner exercise the utmost candour and honesty with the delegates at such a hearing.
While the practitioner's conduct at the s150 hearing is not subject of a particular in the complaint, we refer to it as it is relevant to our consideration of appropriate protective orders.
Dr Diamond, during the course of the hearing, raised with Ms Wong some of the duties of a doctor. His discussion resonates with and reflects our finding that professional misconduct is established. He said of the duties of a doctor: The first of these is to be fit enough to continue to practice, so that when you are practising that you're well enough to do that; that you have to carry responsibilities for other people; that you must be honest, and that you have to put the needs of your patients' safety beyond your own needs.
We have not overlooked the many difficulties which this relatively inexperienced practitioner suffered in 2012, her troubled family dynamics with the underlying insidious background of domestic violence perpetrated on her mother that impacted on her, and the constraints she experienced in disclosing her vulnerabilities by reason of cultural sensitivities. But her depression, and past drug dependence do not necessarily abrogate a finding of professional misconduct but may explain such conduct in whole or part. (see Reimers v HCCC [2012] NSWCA 317 per Basten JA at [12].)
Here the practitioner did not, in 2012, obtain appropriate professional help for her depression, but self-medicated placing herself and her patients at risk. We note she candidly explained that she could not remember what she had done on 12 November 2012 when she took 5-6 Stilnox tablets at about 2am that morning. The practitioner lied to other professionals she consulted in 2012 including her own peer, Dr Shiao. Her conduct in creating, but particularly maintaining the ongoing use of Patient A's file to self-prescribe was dishonest and deceitful. She abused the trust of her fellow practitioners and sought to compromise the practice manager by requesting her not to disclose to Dr Deiter what she had done in creating the file. We are satisfied these matters considered cumulatively are serious instances of unsatisfactory professional conduct and though partially explicable by her depressive illness, satisfy the meaning of professional misconduct as set out in s139E of the National Law.

[15]

Protective orders relevant principles

There is no dispute about the principles applicable to the making of protective orders. Such orders are informed by the objective and guiding principle in s 3A set out earlier in these reasons. It is a matter of degree and judgment to assess if the conduct is sufficiently serious for it to be appropriate to order the cancellation of a practitioner's registration. (see Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [42]).
In HCCC v Karalasingham [2007] NSWCA 267 Basten JA explained, by reference to the definition of professional misconduct then in force, at [67] The first aspect of this challenge is based on an assumption that the Tribunal should start with the possibility of deregistration, once a finding is made of professional misconduct, because, by definition, such conduct is of its nature sufficiently serious to justify suspension or removal of the practitioner's name from the register: the Act, s 37. However, it is clear that the definition is focused on the nature of the conduct, which must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss 60-64, which provide that the full range of disciplinary powers is available on a finding of professional misconduct. The statutory constraints operate differently. Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1). Further, the power to impose a fine depends upon a finding that the person is guilty of unsatisfactory professional conduct or professional misconduct: s 62(2). Otherwise, the discretion of the Tribunal is at large and will depend upon the circumstances of the individual case: see, in relation to legal practitioners, Walsh v Law Society of New South Wales (1999) 198 CLR 73 at [76] (McHugh, Kirby and Callinan JJ).
Generally, it is a pre-requisite for the making of an order cancelling a practitioner's registration that there is a finding that the practitioner is probably currently unfit to practice and is likely to remain so for a significant or indefinite period (see HCCC v Della Bruna [2014] NSWCATOD31; HCCC v Jamieson [2014] NSWCATOD 56)
In some cases of serious professional misconduct cancellation of registration may be required to minimise the risk of recurrence of the offending conduct, and as deterrence to other practitioners thus maintaining the confidence of the public in the profession. These principles were recently highlighted by Meagher JA with whom Basten and Emmett JJA agreed in HCCC v Do [2014] NSWCA 307 at [35] as follows: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
Ms Sant did not take issue the principles referred to in the submissions made on behalf of the HCCC. Where she differed was in how she submitted we should apply those principles to the facts in this case.

[16]

The HCCC's submissions in support of cancellation or in the alternative suspension of the practitioner's registration

The thrust of the submissions made on behalf of the HCCC to support the protective orders it seeks is the submission that the practitioner lacks candour and that we should take into account her misleading conduct in the "formal and informal investigation of the complaints" (submissions at [82]). In support of this submission the HCCC set out a number of instances where the practitioner was initially untruthful about prescriptions written in the name of Patient A when in reality the drugs prescribed were for her own use, her conduct in asking the practice manager to destroy Patient A's file and not report her conduct to Dr Deiter, and her inaccurate statements to AHPRA. Reliance is also placed on the initial statements of the practitioner of the circumstances of the creation of Patient A's file, and the untruthful evidence given to the delegates of the Council.
Further submissions are made in respect of the practitioner's purportedly conflicting statements about hating being on call at the hospital, as distinct from not enjoying general practice, when her back pain commenced, and why she asked Dr Shiao to prescribe Stilnox when she was simultaneously self-prescribing.
It is submitted on behalf of the HCCC: The above evidence clearly demonstrates that up until [the practitioner] prepared her Supplementary Statement she has attempted to "hide" her true record of self-prescription and the extent of her deception merely in order to protect herself. Such conduct should not be sanctioned and should attract strong criticism and be reflected in the primary order sought by [the HCCC] The making of such an order is warranted in order to maintain standards of the relevant profession, and to deter others from like conduct.
In the submissions in the alternative, it is submitted that her registration remain suspended and on the expiration of the suspension conditions should be placed on the practitioner's registration because of the practitioner's need to continue to see her psychiatrist, psychologist, general practitioner and a chronic pain specialist, her need to continue on medication, and to participate in the program. The submissions also note that the practitioner should not, on the evidence before us, be isolated from her family and friends, and that she should receive supervision and support at work.
The balance of the submissions refer to other appropriate practice and health conditions including urine drug screens, restrictions on prescribing S8 and S4D drugs, a graduated return to work, and the assistance of a mentor.
The HCCC sought that the practice conditions to be imposed should be critical compliance conditions.

[17]

Discussion and Conclusions

The practitioner's conduct occurred in 2012 and led very quickly to proceedings under s 150 of the National Law in February 2013 and to her subsequent suspension.
The evidence of all of the experts supports the lifting of the practitioner's suspension, subject to appropriate supervision and health and practice conditions being imposed on her registration. The practitioner does not oppose the imposition of quite onerous health and practice conditions on her registration.
The submissions made on behalf of the HCCC are predicated on us concluding that the practitioner's lack of candour about her self-prescribing, and other conduct which we have found established, is of recent origin calling into question her true insight and candour. We do not accept those submissions. We are satisfied, while initially the practitioner lacked candour, and we would say insight into her depressive illness and its sequela, that situation gradually changed after she promptly voluntarily sought and obtained professional help. The practitioner's self-reporting to Dr McIver, who she commenced seeing in May 2013 disclosed she was open and frank with him. We make similar findings about her candour when first seen by Professor Singh in February 2014 approximately one year before the hearing.
We do not accept that the practitioner's acknowledgment of her dishonest conduct was only made in her supplementary statement. The genesis of that statement was a direction made at the case conference to identify with precision which prescriptions were for the practitioner's use and which were for Patient A with the aim of reducing hearing time. We do accept that the practitioner's primary statement was not made until 14 January 2015, a date approximately one month before the hearing, but the statement is consistent with her earlier reporting to her treating specialist and to the HCCC's own expert Dr Singh.
While we do not disregard the importance of protective orders having a deterrent effect we do not find that this practitioner's conduct, during a confined period when she suffered a culmination of difficult personal circumstances, justifies cancellation of her registration.
Our concern is predominantly focused on whether cancellation of the practitioner's registration in order to protect the public is necessary and appropriate. The factors relevant to that consideration overlap to a substantial degree with our consideration of continuing the practitioner's suspension.
We accept a further period of suspension could be considered appropriate given the relatively recent enrolment of the practitioner in the program, her personality vulnerabilities, and our concern about her use of Phenergan. On balance, weighing all the relevant evidence, particularly that of the experts, who were united in their support of an immediate return to work with conditions, and taking into account their assessment of risk, we reject the proposals of the HCCC that cancellation or suspension are the proper protective orders to be made.
In reaching our conclusion that the practitioner's suspension should be lifted, we are satisfied the risk to public safety can be safeguarded by conditions. In reaching this decision we rely on, and accept, the evidence of all the expert witnesses that we have summarised earlier in these reasons. We note, in particular, that that HCCC's expert, Professor Singh, is supportive of the practitioner resuming practice notwithstanding his concerns about her long term future capacity as an emergency specialist. We do not discount his opinion in that regard. Rather, we note that such a circumstance is many years off and is predicated on the practitioner obtaining specialist emergency training. We consider we should be focused on the reasonable foreseeable future. In that regard, we note the practitioner has strong support from Dr McArdle for her proposals. We accept his opinion.
Subject to our following comments, we are satisfied that the type of conditions sought by the HCCC, and in the main, not opposed by the practitioner (except for the critical compliance provision) are appropriate to protect the public. The proposed conditions include courses in prescribing and medical ethics, provision of the conditions imposed to any employer, an authority to exchange information between Medicare Australia and the Medical Board of Australia (on the basis the practitioner continues to reside in Victoria), her ongoing participation in the program, and the appointment of a Board approved supervisor.
We further note that the practitioner did not oppose conditions which would require her to confer with a supervisor, to commence working by only working reduced hours, undergo random urine drug screens, restrictions on her prescribing rights of S8 and S4D drugs, restrictions on self-prescribing. She also agreed she should continue to regularly see her treating psychiatrist, psychologist and general practitioner.
We do not consider, given the practitioner's voluntary submissions to regular urine drug screens, and the conditions of her agreement with the program, that the circumstances of this case warrant the making of urine drug screening with a positive result a critical compliance condition. We do not consider, given the practitioner's evidence about her future proposed practice, it necessary that the she undergo the "John Murtagh Update Course for General Practitioners".
The conditions proposed by both the HCCC and Ms Sant had a number of common provisions in respect of suitable conditions.
Conditions imposed on a practitioner's registration must be clear and unambiguous. They must be capable of ready understanding by the practitioner so that the practitioner is in no doubt of his or her obligations. As conditions in NSW are monitored by the relevant health professional councils, or in other jurisdictions by the relevant board, any condition imposed must be capable of objective assessment of compliance for monitoring purposes.
In order to ensure proper compliance with and monitoring of conditions, matters such as periods within which obligations must be meet should be clearly enunciated. This is important because non-compliance with a condition, if proven, constitutes unsatisfactory professional conduct (see s138B (1) (c).
While s 149 (1) (d) does not mandate a Tribunal to make "an order" imposing a condition on a practitioner's registration, it does empower the Tribunal to "impose" a condition. We think the principles applicable to the drafting of orders, which must be capable of enforcement by a court, provide a sound basis for drafting conditions. Such condition or conditions should be drafted to require specified action by the relevant practitioner, and so that they are capable of being recorded on the register maintained by AHPRA, which is publicly available.
We note that a number of the proposed conditions purport to place obligations on third parties (supervisors, and treating practitioners) or mandate that the practitioner require the third parties to do specified acts. It is our view conditions of this type are not enforceable, or properly capable of monitoring. Such conditions may, in the ultimate if an asserted breach is pursued, lead to wasted Tribunal proceedings (see HCCC v Perceval [2014] NSWCADTOD 38).
We find the conditions as set out at the commencement of these reasons, and in the orders at the conclusion of the reasons, are appropriate ones to ensure the safety of the public on the practitioner's return to practice.

[19]

Relevant principles and the National Law

The relevant principles to be applied in respect of costs applications in disciplinary proceedings are subject of well-known appellate authority (see Ohn v Walton (1995) 36 NSWLR 77).
These proceedings under s 139B and s 139E require the hearing of an inquiry into the complaint or complaints made. Schedule 5D cl 13 (a NSW provision of the of the National Law) provides: The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or other any of person entitled to appeal (whether as of right or because leave to appear has been granted) at any inquiry or an appeal before the Tribunal to pay the costs to another person as decided by the Tribunal.
Clause 13 (2) and (3) provide a regime for obtaining a costs certificate from the Tribunal, and for the costs order to be enforced and judgment obtained in the District Court.
The question of the power to award costs is subject of discussion by Meagher JA, with whom Basten and Emmett JJA agreed, in Health Care Complaints Commission v Do albeit in the context of an appeal under s 162 A of the National Law. After referring to the power in s 175B of the National Law, which has national application by reason of s 201, his Honour noted, in respect to the power to award costs: That is a provision having national operation pursuant to s 201 it should not be subject to local rules. It should be treated as conferring an unfettered discretion on the Tribunal.
His Honour then referred to the decision of the Court of Appeal in Health Care Complaints v Philipiah [2013] NSWCA 342 as follows: In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event": at [42]. Noting that the mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule", the Court also accepted "that there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings" including the possibility that the Commission was only partly successful, referring to Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]. Lucire dealt with a provision in the Medical Practice Act 1992 (NSW), Sch 2, cl 13, which also conferred an open power. Whatever the true extent of the power conferred on this Court in respect of costs of this appeal, it is appropriate to adopt the same approach as would have been adopted in the Tribunal, namely that there was an unfettered discretion, although the compensatory principle militated in favour of a successful party obtaining an order for costs.

[22]

Practice conditions 1. Prior to returning to practice, the practitioner must complete at her own expense the courses Issues in general practice prescribing course (Monash University) and Medical Ethics (Monash University) and: 1. on or before 30 June 2015, or in the event the courses or any one of them are not offered for enrolment within that period, within 2 months of enrolment being available, the practitioner must provide evidence to the Medical Board of Australia (the Board) of her enrolment in the said courses; 2. within two months of completing each of the abovementioned courses, the practitioner shall provide documentary evidence to the Board that she has satisfactorily completed the courses; and 3. in the event that either of the courses are unavailable, the practitioner must propose to the Board for approval a similar course to be undertaken and satisfactorily completed by her within such period as may be specified by the Board. 1. The practitioner must provide a copy of the conditions on her registration to all current and future employers and use her best endeavours to ensure that those employers provide the Board with written acknowledgement of the receipt of that notice. 2. The practitioner shall continue to participate in the Victorian Doctors Health Program (the Program) for such time as the Board considers necessary. 3. The practitioner shall on or before 30 June 2015 authorise the Program, Medicare Australia and the Board to exchange any relevant information between them where such exchange is necessary to facilitate the monitoring of compliance with these conditions. 4. Prior to returning to practice, the practitioner must nominate a supervisor, and the Board must approved the supervisor to monitor and review her clinical practice and compliance with these conditions in accordance with Level 2 Supervision as contained in the Board's Guidelines for supervised practice. 5. The practitioner shall within seven (7) days of the appointment of the supervisor referred to in Condition 5 or any substitute supervisor referred to in Condition 10 (the substitute supervisor) provide to the supervisor a copy of these conditions and the Decision of the Tribunal delivered on 16 April 2015. 6. Subject to the practitioner having a reasonable excuse, she shall ensure that she and the supervisor meet on a monthly basis in person for at least one hour (or at a frequency and length of time to be determined by the Board), and that they comply with the following requirements: 1. at each meeting the practitioner and the supervisor are to review the practitioner's work progress and address any relevant work-related or professional matters; 2. at each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed by the Board. The meeting should include discussion of the issues highlighted in the Tribunal's decision. 1. The practitioner must within seven (7) days of the supervisor being approved by the Board provide written authorisation to her supervisor to communicate to the Board any concern in relation to the practitioner's compliance with the supervision requirements, compliance with her conditions of registration, clinical performance, health or if the supervision relationship ceases. 2. The practitioner shall within fourteen (14) days of her supervisor's approval by the Board, or the approval of any substitute supervisor, request the supervisor in writing to provides supervisor reports to the Board on quarterly basis. The reports are not limited to, but must include the following information: 1. the date and duration of each meeting; 2. how the practitioner manages workplace conflict and stress; 3. appropriate prescribing practices; 4. the practitioner's communication with work colleagues; and 5. her ability to comply with the conditions on her practice. 1. In the event that the approved supervisor is no longer willing or able to provide the supervision required, the practitioner must within 21 days of the cessation of the original supervisory relationship provide in writing to the Board details of a replacement supervisor to be approved by the Board. The requirements of the practitioner's supervision by the substitute supervisor shall be identical to those set out in conditions 7, 8 and 9. 2. The practitioner is required to participate in the supervisory arrangement for a period of no less than 12 (twelve) months from the commencement of supervision with the supervision period being extended if upon consideration of the supervision reports received, the Board deems such extension necessary. 3. On her return to practice, and for a period of twelve months, or such other period or on such other provisions as may be determined by the Board, the practitioner must: 1. only practice in a hospital position where there are at least 2 or more medical practitioners in addition to the subject practitioner employed and where there is always one other registered medical practitioner on site or available by telephone; 2. only work up to 30 hours per week; 3. not work night shifts or on-call; 4. work in a location within 100km from Melbourne GPO; 5. obtain Board approval and approval from her treating psychiatrist prior to changing the nature, hours or place of her practice; and 6. within seven 7 days of the end of each calendar month provide written evidence to the Board of her work hours and days for the previous calendar month. 1. The practitioner must: 1. not prescribe any substance registered in Schedule 4D or 8 of the NSW Poisons List or Schedule 1 of the Drug Misuse and Trafficking Act (NSW) other than to hospital patients at her place of employment; and 2. not have access to any substance registered in Schedule 4D or 8 of the NSW Poisons List or Schedule 1 of the Drug Misuse and Trafficking Act (NSW). 1. Whether or not the practitioner is in employment as a medical practitioner, she shall for a period of two years or such other period as may be prescribed by the Board: 1. undergo random Urine Drug Screening (UDS) in accordance with the Board's protocol, at a frequency to be determined by the Board; and it is noted that the UDS is to test for, amongst other substances, Zolpidem (Stilnox) and Phenergan; 2. forward the results of the UDS to her treating general practitioner and psychiatrist and AHPRA within 7 days of receipt of the results; and 3. provide a medical certificate issued by her nominated treating general practitioner or one alternative general practitioner previously approved by the Board if she misses a test due to illness and seeks to provide an explanation pursuant the Board's protocol. 1. The practitioner must not unless authorised by the Board prescribe and/or supply any medications to her immediate or extended family:

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Health conditions 1. The practitioner shall for a period of two years or such other period as the Board may prescribe within seven days of the end of each three calendar month period provide written evidence to the Board that she has consulted each of her treating general practitioner, psychologist and psychiatrist in person at the frequency recommended by those practitioners. 2. The practitioner shall: 1. provide a copy of all conditions on her registration to her general practitioner, psychologist, and psychiatrist; 2. authorise her general practitioner, psychologist, and psychiatrist to provide any report to the Board. 1. The practitioner shall use her best endeavours to ensure that her psychologist and psychiatrist forward to the Board, initially on a three-monthly basis, a report that includes information about the practitioner's mental health status and its impact, if any, on her fitness to work as a medical practitioner. 2. The practitioner must not self-prescribe or self-administer (unless on the prescription of her general practitioner or psychiatrist): 1. any substance registered as a Schedule 4D or 8 of the NSW Poisons List or Schedule 1 of the Drug Misuse and Trafficking Act (NSW); and 2. any 'over the counter' codeine derivative; 1. In the event that the practitioner is prescribed or directed to take: 1. any substance detailed in Schedule 4D or 8 of the NSW Poisons List or Schedule 1 of the Drug Misuse and Trafficking Act; and/or 2. any 'over the counter' codeine derivative, she must within seven (7) days of such prescription or direction notify the Board in writing of the prescription or direction together with the name of her treating practitioner. 1. In the event that the practitioner seeks to review these orders and/or conditions under s 163A of the National Law and her principal place of residence is in NSW such application shall be heard by the Medical Council of NSW Council as the appropriate review body. 2. If the practitioner's principal place of residence or place of practice is other than in NSW, sections 125 to 127 of the National Law shall apply and the review body shall be the Medical Board of Australia. 3. The practitioner shall pay the Health Care Complaints Commission's costs of and incidental to the proceedings as agreed. Failing agreement application may be made to the Tribunal. 4. Publication of the name of the Patient set out in the schedule to the complaint (Patient A) is prohibited under s65 of the Civil and Administrative Tribunal Act 2013 (NSW) except to the parties to these proceedings and Schedule 5D cl 7 of the Health Practitioner Regulation National Law except to the parties to these proceedings. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2015

Parties

Applicant/Plaintiff:

HCCC

Respondent/Defendant:

Iskander

Legislation Cited (4)

Health Practitioner Regulation National Law Poisons and Therapeutic Goods Act 1996(NSW)

Medical Practice Act 1992(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Poisons and Therapeutic Goods Act 1966(NSW)

Cases Cited (14)

Publication of the name of the patient set out in the schedule to the complaint (Patient A) is prohibited under s 65 of the Civil and Administrative Tribunal Act 2013 (NSW) and Schedule 5D cl 7 of the Health Practitioner Regulation National Law except to the parties to these proceedings. Catchwords: ADMINISTRATIVE LAW - Civil and Administrative Tribunal Act 2013 (NSW) - Health Practitioner Regulation National Law - Where asserted medical practitioner is guilty of unsatisfactory professional conduct and professional misconduct. Where further asserted practitioner suffers impairment. Where practitioner has self-administered prescription drugs. Practitioner's registration suspended at date of hearing. Where practitioner concedes she is impaired and substantially concedes particulars in the complaint Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law Poisons and Therapeutic Goods Act 1996 (NSW) Poisons and Therapeutic Goods Regulations Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Clyne v NSW Bar Association (1980) 104 CLR 186 Health Care Complaints Commission v Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Perceval [2014] NSWCATOD 38 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Ohn v Walton (1995) 36 NSWLR 77 R v Byrne (1995) 193 CLR 501 Reimers v Health Care Complaints Commission [2012] NSWCA 317 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Nancy Magdy Fayez Iskander (Respondent) Representation: Counsel: A Britt (Applicant) K Sant (Respondent)

(1938) 60 CLR 336

(1980) 104 CLR 186

(1995) 36 NSWLR 77

(1995) 193 CLR 501

(1999) 198 CLR 73