Health Care Complaints Commission v FTE

The Applicant's complaint

1. The Applicant makes five complaints.
2. The first complaint is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the Health Practitioner Regulation National Law (NSW) ("the National Law") because the Practitioner has contravened a condition to which the Practitioner's registration was subject. The first particular of the first complaint is that on 21 December 2020 the Practitioner breached critical impairment condition 14 when he returned a positive urine sample for amphetamine/ methamphetamine. The second particular is that on 20 January 2021, the Practitioner breached the same condition when he returned a positive hair sample for methamphetamine and methylenedioxymethamphetamine (MDMA). The third particular is that the Practitioner self-prescribed medication, in breach of condition 7. There were two typographical errors in two of three dates in this third particular. The correct dates appeared earlier in the Notice sent by the Applicant to the Practitioner in January 2022 and in supporting evidence. The correct dates are 11 August 2020, 13 January 2021 and 29 January 2021.
3. The second complaint is that the Practitioner is guilty of professional misconduct under s 139E of the National Law on the basis that the unsatisfactory professional conduct particularised under complaint 1 is of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration.
4. The third complaint is that pursuant to s 144(a) of the National Law, the Practitioner has been made the subject of criminal findings for criminal offences in NSW. The particulars of this complaint are that on 14 June 2021, the Practitioner was charged with two counts of possessing prohibited drugs and pleaded guilty to those charges at the Local Court of NSW at Sydney on 26 July 2021.
5. The fourth complaint is that pursuant to s 144(d) of the National Law, the Practitioner has an impairment within the meaning of s 5 of the National Law. Particulars of this complaint include that the Practitioner has a polydrug use disorder and an alcohol use disorder and has an established pattern of using poly-recreational drugs and binge drinking. In addition, the Practitioner has symptoms of post-traumatic stress disorder (PTSD).
6. The fifth complaint is that the Practitioner is not competent within the meaning of s 139 (a) of the National Law in that he lacks the mental or physical capacity to practise as a medical practitioner. The Applicant relies upon the first three particulars in complaint four, individually and cumulatively.

Applicable legal principles

1. The object and guiding principle of the National Law is that the Tribunal must ensure the protection of the health and safety of the public be the paramount consideration (s 3A), and in providing that protection the Tribunal is to ensure that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3).
2. As Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 explained, at [35]: "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."
3. The Tribunal may exercise disciplinary powers conferred by Part 8 Subdivision 6 of the National Law. These include caution, reprimand, imposing conditions, ordering treatment or counselling (National Law, s 149A), and suspension and cancellation of registration (s 149C(1)(c)). The Applicant seeks an order for cancellation.
4. Relevantly section 149C(1)(a) and (b) of the National Law provides the Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) … (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; …
5. The onus is on the Applicant to establish the complaints on the balance of probabilities with due regard to the factors referred to by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect references."

The conditions on the Practitioner's registration at the date of suspension

1. When the Practitioner's registration was suspended on 24 February 2021, the conditions upon his registration were those which are set out in Appendix A at the end of these reasons. Relevantly, conditions 7 and 14 were as follows: "7. Not to prescribe for self-medication. … 14. To abstain completely from the consumption of alcohol and any illicit substances. …"

Background

1. The Practitioner has a significant history with the Medical Council, commencing with an original notification in 2017 when he was present when a friend drowned in a hot tub after consuming GHB. The Practitioner admitted to police at the time to having consumed alcohol and GHB over a number of hours. Section 150 proceedings were convened and conditions placed on the Practitioner's registration.
2. The consequent appearances before the Medical Council all originate from this initial complaint and relate to the Practitioner's illicit drug use and impairment.
3. As detailed below, we are satisfied that each of the complaints has been established. It is important, in the context of the complaints as to impairment and lack of competence and relevant to what protective orders are appropriate, that we set out the relevant history in more detail than might be usual. This history relates to the cyclical nature of the Practitioner's non-compliance and his inability to date to take the chances that he has been given and to obtain learnings from the considerable assistance which has been extended to him.

First Section 150 proceedings November 2017

1. The Practitioner first came to the attention of the Medical Council as a result of a report by NSW police of the tragic incident on 11 October 2017. The Practitioner and his friends were together consuming alcohol and gamma hydroxybutyrate (GHB) in large quantities over a number of hours. The Practitioner found two of his friends floating face-down in a hot tub. He was able to revive one but not the other. The police were concerned that the Practitioner's ability to assist his deceased friend was compromised given the large quantities of drugs involved and that he could still be under the influence of drugs while undertaking clinical skills.
2. On 27 October 2017, prior to the first s 150 hearing, the Practitioner attended Dr Glen Smith who concluded: "In my opinion, the history documented represents problematic use of an illicit substance (GHB combined with alcohol) fulfilling the definition of impairment according to the meaning outlined in Section Five of the Health Practitioner Regulation National Law (NSW)."
3. At an urgent s 150 hearing on 3 November 2017, the Delegates determined that the Practitioner was impaired and that it was appropriate and beneficial for the Practitioner to participate in the Council's Impaired Registrants Program and be reviewed by a Council-appointed psychiatrist. Numerous practice and health conditions were imposed on the Practitioner, including urine drug testing (UDT) three times per week.
4. The Delegates concluded: "We note [the Practitioner's] evidence that much of his past drug use has been opportunistic in the context of participating in what has been offered to him. Regular urine drug screens may assist him to be more assertive in making appropriate decisions and will alert the Council if he has been unable to maintain abstinence."

First Impaired Registrants Panel January 2018

1. In January 2018, the Practitioner joined the Council's Impaired Registrants Program (IRP).
2. Part of the conclusions at the first Impaired Registrants Panel in January 2018 were: "Of significance is [the Practitioner's] knowledge of the risk of overdose associated with GHB. Notwithstanding that knowledge he used GHB in a hazardous situation (a spa) in a dangerous manner demonstrating an extreme element of risk- taking. He reported that the reason for that choice was "peer pressure" rather than physiological dependence on GHB. Assertiveness and setting appropriate boundaries would be a valuable focus of treatment for [the Practitioner's] Council Appointed Practitioner (CAP). There is no evidence that [the Practitioner's] professional performance has ever suffered as a result of his impairment, but there is potential for this to be the case if his drug use were to continue or escalate. [The Practitioner] is adamant that this will not be the case and the Panel was impressed with his sincerity and determination. Nevertheless, it is appropriate for [the Practitioner] to continue to have conditions on his registration… …given the gravity of, and potential public interest in the events that resulted in his notification to the Council, it is appropriate for him to continue drug testing for the time being. Given that he does not appear to have an addiction, is insightful into his vulnerabilities and has sought treatment for them, has taken positive steps to change his lifestyle, is well supported and has been compliant with UDT to date, the Panel recommends that he attend for random UDT.

Council Review Interview, July 2018

1. On 16th July 2018, a Council Review noted: "The Reviewers discussed at some length with [the Practitioner] the issues concerning drug testing. There is no evidence that he has ever had an addiction to any drug or to alcohol. His use of GHB and at times cannabis was infrequent and occurred in a social context when it was offered to him by someone else. The negative results since he began testing in January 2018 provide evidence that he has been abstinent from all drug use. GHB, the drug that brought him to the attention of the Council, cannot be tested for, and so it is largely a futile exercise. It was important to have a period of testing to rule out other drug use, which the clear test results support. The Reviewers note the recommendation of Dr Smith [CAP] that urine drug testing cease and that [the Practitioner] attend for quarterly drug testing for a period of six months before exiting the Health Program, assuming his stable progress continues."

August-October 2019

1. On 24 August 2018, the Medical Council notified the Practitioner that UDS would cease, and that he should continue to attend for quarterly hair drug screening (HDS) for a further six months before exiting the Health Program.
2. On 28 August 2018, the Medical Council notified the Practitioner that the UDS sample from 1 June 2018 was positive for oxycodone and noted his explanation that he had taken oxycodone following a fall from his bike. He responded that he "did not require a doctor" but had some oxycodone "spare from my previous neck injury". He indicated that he had not taken any further oxycodone since then. The Practitioner was reminded of the need to present to his GP prior to taking such a medication.
3. The Council asked the Practitioner for an explanation for the presence of modafinil in his UDS on four dates in July/August 2018. The Practitioner provided evidence of the prescription for modafinil. He stated that prior to 2016 he had self-prescribed it and taken it in line with guidelines for chronic shift work sleep disorder. He stated that he understood on reflection that he should have attended his GP for prescriptions, is currently doing so, and would do so in future.
4. In October 2018, the Practitioner responded to a query from the Council in regard to his Drug Information Statement dated 17 September 2018, in which he stated he was taking Truvada, zopiclone and modafinil. His HDS was positive for promethazine (Phenergan) and zopiclone. The Practitioner noted that he took zopiclone and Phenergan (available over the counter) sparingly for sleep when working night shift. He noted in his email: "I do hope that my s 152k [request for review of conditions] has been looked at, because I do want these restrictions removed. I do not have a drug addiction problem. I have not tested positive for ANY illicit substances, because I do not take them. I feel that it is about time that these strict conditions be removed."

First positive hair drug screen (HDS) December 2018

1. The Practitioner's HDS from 11 December 2018 tested positive for promethazine, zopiclone, methamphetamine and ketamine. In regard to the positive results for methamphetamine and ketamine, the laboratory noted: "… the presence of a small amount of Methamphetamine. A trace of Amphetamine is also present albeit at a level below that which we routinely report. This is indicative of exposure to Methamphetamine during the timeline. Although the level detected indicates very occasional use during the timeline, it is also possible that this small amount has arisen as a result of external contamination of the hair… … note the presence of a small amount of Ketamine. This is indicative of exposure to Ketamine during the timeline. Although the level detected indicates very occasional use during the timeline, it is also possible that this small amount has arisen as a result of external contamination of the hair."
2. The Practitioner emphatically denied using any illicit substances. He suggested that positive results might have been from contamination or from skin contact in his personal life.
3. The Medical Council sought advice from a CAP who noted in part: "I would like to give the benefit of the doubt to [the Practitioner] ... We need to get a non-controversial and unambiguous clean report of Hair Drug Screen before we can allow him to exit the program. I recommend repeat hair testing now followed by another clean report of hair testing in three months before he exits the program."

Second Impaired Registrants Panel March 2019

1. In March 2019, a second Impaired Registrants Panel recommended that the IRP be adjourned and reconvened after the result from the most recent HDS was received and following reassessment by the Council-appointed psychiatrist. They concluded as follows: "The Panel notes [the Practitioner's] strong, repeated, sustained assertions both in writing and orally that he has used no non-prescribed substances in the last six months. He firmly denies any use at all of illicit substances including methamphetamine and ketamine. He initially denied spending time with anyone who was using drugs, but then stated that he has had intimate sexual contact with partners who had used illicit drugs in the 24-48 hours before contact with him. Although he repeatedly denied any use himself, he describes spending time with a range of acquaintances who are using illicit drugs. He suspects this is the source of the contamination."
2. "While very concerned about the positive hair drug test", the Panel found there was "no reason to believe that his ability to perform safely in the workplace [had] been compromised" and that he was supported by his current supervisor. Furthermore, in the Panel's view, work was "currently protective for him, given his social isolation." The Panel adjourned in order to await the result of hair testing taken on 28 February 2019 and reassessment by the Council-appointed psychiatrist (CAP). That report, from Dr Seema Sharma (Dr Sharma) dated 2 April 2019, stated as follows: "I do not believe he meets the criteria for substance use disorder or that he is a danger to the public. He is a competent and safe doctor who has vulnerabilities of loneliness, giving in to peer pressure and lack of assertiveness and repeated behaviour of putting himself in unsafe situations due to his need for social acceptance. He requires adequate documented clinical supervision and regular monitoring which is current and not retrospective as hair drug testing which is a reflection of past behaviour of three months."

Second s 150 hearing 11 April 2019

1. On 28 February 2019, the Practitioner had provided a hair sample, which subsequently tested positive for zopiclone, methamphetamine, MDMA (ecstasy) and ketamine. The laboratory noted in its report that the amount of the zopiclone found was consistent with the Practitioner's declared use of the medication as required. In relation to methamphetamine, the laboratory found that it was possible that the amount found was "the tail end" of the findings of the previous test or indicated an ongoing low-level exposure, such as external contamination or very occasional use. The level of ketamine found also suggested an ongoing source of exposure or occasional use, which would be legitimate if prescribed. Finally, "the findings indicated a low level of exposure to MDMA and cocaine" possibly as a result of exposure to an environmental source or secretions of close associates using these substances.
2. In light of the recent positive drug tests, another urgent s 150 hearing before the Delegates of the Council was convened. Prior to the hearing, the Practitioner submitted further documentation, including letters of support from colleagues and letters from his treating psychologist and psychiatrist. In his personal statement submitted to the Delegates, the Practitioner stated as follows: "I have made mistakes that have regretfully led to positive drug testing on 2 hair drug tests. I have discussed this at length with the council appointed psychiatrist and have eliminated possible sources. Whilst I do not have a substance abuse problem, I have trouble saying no on social occasions from time to time. I am working through these issues with my psychologist, psychiatrist and GP."

Second s 150 proceedings: 11 April 2019

1. At the second s 150 hearing on 11 April 2019 (Exhibit 12 Tab 6), the Practitioner admitted to the Delegates he had used GHB with his sexual partner on five to six occasions and whilst he should have refused the drug, he regretted he had not. He indicated that he last took drugs at Mardi Gras in the previous month. He indicated he knew it was "a bad idea" but he wanted the social contact. He worked three days later. He also indicated that he drank two to three bottles of wine per week and finished it once the bottle was opened.
2. The Delegates noted that the Practitioner's circumstances appeared to meet the criteria for substance use disorder and amounted to an impairment. They concluded: "The evidence before us indicates that [the Practitioner's] impairment does not affect his capacity to practise medicine safely and effectively and in the best interests of patients. The delegates placed significant weight on the evidence of Dr Malkiewicz, who gave credible and forthcoming evidence about [the Practitioner's] initial flaws but attested to his substantial progress at work. She stated that he had never been under the influence of drugs at work and in fact, they never suspected that he had an issue with drugs. He was a good, safe doctor, who could be trusted. We also considered the references provided by his colleagues, which were very supportive of [the Practitioner]. We also placed weight on Dr Sharma's report dated 2 April 2019, which provides that [the Practitioner's] impairment does not constitute a risk to the public. Nevertheless we have found that he is impaired and we remain concerned that he continues to take recreational drugs and to drink large quantities of alcohol. In our view, [the Practitioner] does pose a risk to the safety or health of the public. However, we believe that conditions can be imposed, which would minimise the risk to the public. We decided that all existing conditions should remain and that certain new conditions should also be imposed. … In light of [the Practitioner's] ongoing, albeit sporadic, recreational drug-taking and the amount of alcohol he consumes, we imposed the condition that he abstain from alcohol and all illicit substances. [The Practitioner] must undertake alcohol and urine drug testing three times per week and quarterly hair drug screening."
3. Finally, the Delegates increased the frequency (now every three months) with which the Practitioner must see the Council-appointed psychiatrist and attend the Council's Review interview. The Delegates warned the Practitioner that he must ensure that he strictly complies with all his conditions, particularly in relation to drugs and that he must not self-prescribe medications or take medications bought online from overseas.

Third Impaired Registrants Panel August 2019

1. In August 2019, there was a third Impaired Registrants Panel hearing. The Delegates at the section 150 hearing on 24 February 2021 paraphrased the Panel's findings as follows. "[The Practitioner] made positive progress apart from not providing a urine sample for testing on 3 occasions. All results were negative, including a Hair Drug Screen from 4 June 2019. Positive changes in his mood, anxiety, organisation, impulsivity and general well-being were noted by [the Practitioner] himself, by the CAP, by his treating psychiatrist and by the IRP Panel members. The Panel commented that these positive improvements appeared attributable to 'a combination of the following: abstinence from illicit drugs; abstinence from alcohol; compliance with treatment for adult ADHD, associated with improvement in organisation; improved commitment to treatment; positive changes in his social circle and supports; and optimism about his future career'. He appeared more insightful about the need for abstinence from drugs and alcohol and was notably 'less resistant, guarded, irritable and labile in his engagement with the Panel than previously'. The Panel noted that 'the positive hair tests in December 2018 and February 2019 may have been due to contamination from intimate contact with partners who were using drugs' and that [the Practitioner] was 'aware that addressing his approach to intimate relationships without using drugs is an issue he needs to deal with in therapy...'. The Panel noted that [the Practitioner's] abstinence from drugs and alcohol was 'extremely recent, only since April 2019'. He was encouraged to try to increase the frequency of treatment with his psychiatrist and psychologist in order to address his vulnerabilities in more detail."

Council Review Interview, November 2019

1. After a Council Review Interview in November 2019, the Council reported: "[The Practitioner's] mental health had remained stable, with improvements in mood and in many domains of functioning since he was started on medication for ADHD. He remained well-engaged with his treating practitioners and had been working on some of his areas of vulnerability, particularly intimate and other relationships. [The Practitioner] reported no use of alcohol or illicit substances since consuming GHB and drinking 2-3 bottles of wine in the week after his IRP hearing on 5 March 2019. Since that time, serial thrice weekly UDT and EtG results had remained negative. Hair Drug Test results for 4 June 2019 and 25 September 2019 were positive for prescribed substances only. A recommendation to move to a six monthly review cycle was not endorsed by the Council because [the Practitioner] was changing work locations. The Council indicated they were of the view that the change in employment and studying for exams may lead to increased stress."

Third Positive Hair Drug Screen January 2020

1. The Practitioner was approved for leave from screening when he travelled to the United Kingdom from 10 - 28 December 2019. A HDS collected on 3 January 2020 was positive for three illicit substances, namely methamphetamine, MDMA and ketamine.
2. QML Pathology noted a small amount of methamphetamine in the hair sample with a small amount of its metabolite (amphetamine), albeit below the usual threshold for reporting. QML Pathology commented: "The findings indicate exposure to methamphetamine."
3. A small amount of MDMA was also noted in the hair sample with no metabolite detected. "The findings indicate exposure to MDMA."
4. The presence of a small amount of ketamine in the hair sample was also noted with no norketamine (metabolite) detected. "The findings indicate exposure to ketamine."
5. The Practitioner emailed submissions to the Council on 10 and 13 February 2020. In those submissions, the Practitioner denied using methamphetamine, ketamine and MDMA.
6. On 10 February 2020, the Practitioner wrote: "This is similar/the same as my previous hair drug screening last year. I did not take these substances last year, and have continued to remain abstinent from all substances. I was in the UK over the Christmas period, the majority of which was spent at my family home in North England and I spend 2 days in London with Friends. I did not take any substance then either, and I am fully aware of my conditions."
7. On 13 February 2020, the Practitioner wrote: "I note that with the MDMA testing and the Ketamine, there was no presence of either active metabolite. I note with the methamphetamine testing, that the active metabolite, whilst present was below reportable level. One thing that might have contributed to the positive amphetamine result could be phenylephrine. I unfortunately, had missed the fact that I could not take cough suppressant, as this may cause a false positive."

CAP review on 28 February 2020

1. Doctor Michael Atherton carried out a CAP review on 28 February 2020, being aware of the positive HDS results from 3 January 2020. He commented: "Impression: I believe that [the Practitioner] has Hallucinogen Use Disorder mild to moderate severity. This is a problematic pattern of GHB use causing significant impairment and distress and this is demonstrated by his use of GHB in 2019 and earlier, despite the huge inherent implications of using this substance. I believe he satisfies the criteria for taking it in larger amounts or over a longer period than intended, failure to cut-down and stop using despite the implications, using it in a situation where it is hazardous i.e. in combination with alcohol and with the knowledge that it previously killed one of his friends and the fact the it is clearly in breech [sic] of his council condition and the implications that this would have into his medical training. This is presumed to be in short-term remission since his last use in early 2019 although GHB is impossible to test in toxicology or bio-markers and can only be assessed on the basis of the person's honesty and also their clinical picture."

Council Review Interview, March 2020

1. On 12 March 2020, the Practitioner attended a Council Review Interview. The Reviewers noted a diluted urine drug sample for 22 January, 24 January and 12 February 2020. The Practitioner provided a written response to the Council indicating he drinks green tea on his way to Laverty Pathology to ensure he is able to pass urine on arrival.
2. Clinical Psychologist Jo Langham provided a letter to the Council dated 20 February 2020. In her letter she noted (in part) that the Practitioner has "considerable insight into his behaviour (and his mistakes) particularly since stabilising medication for ADHD. He is motivated, hardworking and committed to providing good medical services to patients." She also noted that he was "extremely distressed by a recent positive hair test. He assures me that he has been adhering to all requirements of the Medical Council and has not taken drugs or alcohol."
3. The Reviewers noted: "A Hair Drug Test collected on 3 January 2020 was positive for three illicit substances, namely methamphetamine, MDMA and ketamine. Similarly, [the Practitioner] had HDT results in December 2018 and February 2019 that were positive for methamphetamine, ketamine and MDMA. The 2018 and 2019 positive tests he attributed to intimate contact with partners who were using drugs. In relation to the positive test for 3 January 2020, [the Practitioner] denies using illicit drugs while he was overseas and he reported no intimate sexual contact during that time which could explain contamination of the hair sample. However, he did report attending a large music festival in London where there was an attendance of 2000 - 3000 people. Inevitably many of these attendees would have used illicit substances (including methamphetamine, MDMA and ketamine) and the possibility that his hair sample has been affected by external contamination at that venue could be considered. [The Practitioner] is extremely despondent about the impact of the positive HDT's on his progression through the Health Program. He was encouraged to reconsider taking time out of the country (when there is a gap in thrice weekly UDT's) and to limit any potential sources of external contamination. … Dr Atherton [the Council Approved Practitioner] a psychiatrist, commented that he had contacted three Hair Testing laboratories including QML Pathology, South Australian Forensic laboratories and PsychoMedics in the US. Dr Atherton stated that all pathology experts he spoke to "felt that methamphetamine use by [the Practitioner] whilst in the UK was a plausible and most likely explanation" and that no realistic explanation for a false positive test could be provided. Dr Atherton also noted the "third and much higher reading" (of methamphetamine in the most recent hair sample compared with the two previously positive samples). Dr Atherton formed the view that [the Practitioner] used methamphetamine whilst in the UK and away from regular UDT's. He notes that "no patients were placed at risk by his trip to the UK and alleged substance use, and I have no evidence of his practice being impaired whilst in Australia. That said he remains an Impaired Practitioner under the National Law." Dr Atherton also formed the view it was not necessary to impose additional conditions at this time and that [the Practitioner] should continue on a three monthly review cycle. Dr Atherton also encouraged [the Practitioner] to "seek further assistance around his self awareness from his supporting clinicians"."
4. No changes were recommended to the Practitioner's conditions.

Third s 150 hearing on 9 April 2020

1. As a result of the positive drug testing following the Practitioner's trip to the United Kingdom, a third s 150 hearing was convened on 9 April 2020.
2. In a further response received 9 April 2020, the Practitioner explained his trip to London: "Following on from that, I attended a music event called "Anjunadeep" at Printworks in London on Saturday afternoon/evening. I met up with friends through an "Anjunafamily Europe" social group on facebook. The group is connected through our passion for music. I spent my time at the event with them. None of the people I was with were taking drugs, although I have no doubt that there will have been people present at the event who will have taken drugs. I remained sober throughout, and had a very pleasant time, before leaving back to my hotel at around 11pm."
3. The Delegates summarised the Practitioner's evidence as follows: "In summary the evidence from [the Practitioner] is that whilst his hair drug screen showed a detected drug presence, the levels were below the reportable cut-off line. The absence of metabolites for ketamine and MDMA demonstrated that he did not take them. The metabolite for methamphetamine could be attributed to taking cough suppressant. He ascribed his exposure to attending a music event where there may have been members of the public consuming these drugs. [The Practitioner] also suggested his exposure to ketamine could have been work related."
4. Dr Atherton gave evidence which concluded: "I accept that the 2 previous hair test results for [the Practitioner] have already been considered as contamination but in light of this third and much higher reading, it is my belief that [the Practitioner] used Methamphetamine whilst in the UK, and away from regular UDS testing."
5. The Delegates preferred Dr Atherton's opinion which was that based on the Practitioner's three detected HDS results, the high level of methamphetamine reported, the implausibility of false-positives on a background of a Hallucinogen Disorder, that the Practitioner took drugs when on holidays in the UK. The Delegates concluded the Practitioner in all likelihood had taken drugs whilst on holidays in the United Kingdom The Delegates also concluded the Practitioner had provided diluted urine samples in July and September 2019.
6. One Delegate was particularly concerned about the high result for methamphetamine on 3 January 2020 and that diluted samples might indicate the Practitioner had been attempting to cover up drug taking, particularly for drugs with short life cycles. That Delegate maintained the Practitioner's registration should be suspended.
7. The other two Delegates formed the view that suspension was not warranted. They imposed critical impairment conditions and added a new mentoring condition. They agreed with Dr Atherton that the Practitioner is impaired and suffers from a substance use disorder, for which his current conditions require him to see a psychiatrist with expertise in addiction medicine.
8. The two majority Delegates also considered that there was no evidence before them that the Practitioner's impairment impacts upon his clinical work, or he had been intoxicated while at work. They noted the Practitioner had good reports regarding his overall performance from his most recent term supervisor and his most recent Director of Emergency Medicine Training. The majority of Delegates also noted that the Practitioner is a junior registrar whose conditions prevent him from working night duty, and as such he will be supervised at all times by an ED specialist. The Delegates believed that a mentorship of a named practitioner would be of added benefit to the Practitioner in further supporting him in dealing with his issues. The majority of the Delegates were also persuaded by the view that the Health Program's primary goal is the protection of the public while being a non-disciplinary program to help rehabilitate a doctor. We also note that the majority Delegates had in mind the conditions of the Practitioner's registration and the frequency of review required by those conditions.

Fourth Impaired Registrants' Panel September 2020

1. The Practitioner attended a further IRP on 11 September 2020. The Panel noted that the Practitioner had changed psychiatrists and was benefitting significantly from the more psychotherapeutic approach of Dr Patrick Toohey. The Practitioner had also taken on board Dr Robert Fisher's feedback about his immature and hostile approach towards the Council's processes and requirements and had begun to engage with the process in a much more positive fashion. The Panel commented: "It remains to be seen if [the Practitioner] can maintain this new attitude in his dealings with the Council and compliance with his conditions, by working with the Council rather than against it. They noted he appeared to be highly valued at work but was "on thin ice" with [the] Council."
2. Some ongoing issues with compliance with the Practitioner's conditions were noted, in particular:

• UDT positive for codeine-6-beta-glucoronide on 15 May 2020. The Practitioner was unable to explain this result, reporting he did not use codeine and codeine was not present in the HDS result for this period of time.
• UDT positive for Thebaine (metabolite of codeine) on 19 August 2020. The Practitioner attributed this to the consumption of poppy seed bagels, stating he was unaware he could not consume poppy seeds. He was advised to familiarise himself with the Council's policy in this regard.
• EtG testing: 18 missing tests from April - June 2020. The Practitioner had started attending a different collection centre and old versions of the request forms without EtG testing were provided directly to the new centre by the previous centre. The Practitioner accepted it was his responsibility to ensure further administrative errors did not occur.

1. The Panel recommended the Practitioner agree to the same conditions as those imposed at the s 150 proceedings in April 2020, including critical impairment conditions for alcohol abstinence, urine drug screening, quarterly hair drug screening and EtG screening.

Council Review Interview, 18 December 2020

1. Following an interview on 18 December 2020, the reviewer's commented: "[The Practitioner] reported ongoing abstinence from alcohol and non-prescribed substances. Dr Fisher's comments about his desire to drink alcohol in the future were discussed. [The Practitioner] said he would like to be able to have a celebratory drink in future at weddings and other major social events but he also respects Dr Fisher's opinion that he should remain a teetotaller given his family history and his history of using substances when drinking. [The Practitioner] said that he has not been to any parties or music festivals recently, however he downloaded "Grindr" again this month. He said he went to "hang out with someone" and found that there was drug use involved so he left the situation. He is aware these types of situations potentially place him at risk and he needs to be very cautious. He said that others he knows are partying regularly and he reflected on having "no interest in going back to that life" again. He also acknowledged that at the start of the Health Program he felt he was "missing out" by trying to withdraw from that lifestyle, even though he stated that his intention was to avoid it. [The Practitioner] also reported compliance with his Health conditions including no prescribing for self-medication. He reported ongoing abstinence from illicit and non-prescribed substances and ongoing abstinence from alcohol. The consistently negative EtG tests, UDT results and HDS results were noted. [The Practitioner] feels that he has taken on board Dr Fisher's feedback about his attitude and he has worked on improving his approach. He appreciates it has been unhelpful for him to be angry and frustrated at Review Interviews and he has adopted a more professional approach. [The Practitioner] asked about the time frame for moving to random EtG and urine testing. He was advised to formally write to the Council requesting their decision about the date when his testing will re-set back to the beginning. Currently it is unclear whether this is after the last positive hair test result in January this year or after the positive test for Thebaine (codeine metabolite) on 19 August this year. [The Practitioner] was advised he will require 18 months of full compliance with thrice weekly testing before he can be considered for random testing. [The Practitioner] has also responded positively to feedback from Dr Fisher and his new treating psychiatrist (Dr Patrick Toohey) about the need for a more mature and less oppositional approach to the Medical Council. He has become far more accepting and less critical of the Council's requirements of him to ensure the protection of the health and safety of the public given the recurrent concerns about his test results. At the same time, he has expressed a view to Dr Fisher that he would like to be able to have a celebratory drink in future (when off the Health Program), but he also appreciates Dr Fisher's advice that he should remain a teetotaller given his family history and his vulnerability to substance use when drinking. [The Practitioner] may be potentially placing himself in high risk situations having gone back onto the Grindr dating app, but he is also aware of the importance of caution in his interactions with others who may potentially be using substances, given the risk of external contamination to his hair samples. It appears the last test result of concern was on 19 August 2020 (positive for Thebaine, a metabolite of codeine). [The Practitioner] has attributed this result to the consumption of poppy seed bagels, stating he was unaware he could not consume poppy seeds. He has been reminded of the importance of familiarising himself with the Council's monitoring protocols and the need for strict compliance. It appears that [the Practitioner] has been fully compliant with his conditions since September this year, and he reported ongoing abstinence from alcohol as well as illicit and non-prescribed substances. Dr Fisher has recommended no changes to [the Practitioner's] current conditions and the Reviewers agree. Provided [the Practitioner] continues to make positive progress, and provided Dr Fisher's supports it, a recommendation to move to a six monthly review cycle could be considered at the next Review Interview."

Positive drug tests in December 2020 and January 2021

1. On the 21 December 2020, the Practitioner provided a urine sample which tested positive for amphetamine and methamphetamine. On 20 January 2021, the Practitioner's hair drug screen yielded positive results forzopiclone, methamphetamine and MDMA.
2. The events which led to these drugs being detected in the Practitioner's tests are central to the complaints in the application before us. The Practitioner asserted these results arose from an event on 20 December 2020 when he attended the home of a man he had not met before, consumed drinks offered to him that he had not seen prepared, had sex with this man over an extended period, and the man unbeknown to him was using drugs from time to time in his bathroom. This was only two days after the Practitioner had told the Council review panel he was aware of the importance of caution in his interactions with others who may potentially be using substances, given the risk of external contamination to his hair samples.

Fourth s 150 hearing on 24 February 2021

1. Following the results of the testing on 21 December 2020 and 20 January 2021, the Practitioner faced a fourth s 150 hearing on 24 February 2021.
2. The Delegates concluded that the Practitioner had ingested illicit drugs; this represented a breach of a critical impairment condition of the Practitioner's registration, and that the deliberate ingestion of these drugs could not be excluded. In addition, the Delegates found that he continued to have an impairment under the National Law.
3. The Delegates were unable to "give [the Practitioner] the 'benefit of the doubt' for a third time" and suspended his registration from 5:00 pm on 24 February 2021.
4. After the suspension of the Practitioner's registration, at the hearing the following exchange then took place between him and the delegates (Tab 17 p 25, lines 13-32): "[PRACTITIONER]: Can I ask what do I do in the meantime? ASSOC PROF ROWELL: Your suspension will come into force effectively at 5:00 o'clock this evening. [PRACTITIONER]: I mean in terms of my testing? ASSOC PROF ROWELL: I beg your pardon? [PRACTITIONER]: Will I continue to attend for urine drug screening? ASSOC PROF ROWELL: Ms Amori, I believe that's the case is it not? MS AMORI: So no, you won't have to from a council perspective but it may be in your interest if you want to continue that. DR WILSON: It would be helpful in your application for a review, [the Practitioner] if you could continue with the testing and demonstrate clear results in the intervening period I would suggest that would form part of your appeal application to have the suspension lifted. …"

Criminal charges

1. To complete the chronology (and relevant to Complaint Three) an event occurred on 14 June 2021.
2. The event has some haunting similarities to the event which had ended tragically and had originally brought the Practitioner to notice in October 2017. About 12:35am on 14 June 2021, police were called to a unit in Mascot to attend an intoxicated male believed to be under the influence of prohibited drugs. It is unclear whether it was the Practitioner who called the police. When police arrived, the Practitioner was leaving the building on a push bike and approached them. He said that his friend was high on drugs in the unit in the building. He also admitted to police to having consumed methamphetamine with the friend. The Practitioner was searched, arrested and charged by police for being in possession of the illicit drugs gamma hydroxybutyrate (GBH) and cannabis.

Complaints One (particulars 1 and 2) and Two (in part)

1. Particulars 1 and 2 of Complaint One and part of the basis of Complaint Two, rely upon the drug tests in December 2020 and January 2021 and allege a breach of condition 14 of the Practitioner's registration, which was to abstain completely from the consumption of alcohol and any illicit substances. Condition 14 was a critical impairment condition as described in s 150FA(2) of the National Law.
2. As indicated, on 21 December 2020 the Practitioner returned a positive urine drug screen result for amphetamine and methamphetamine. A confirmatory test result on 21 December 2020 was amphetamine 1080 µg/L (mcg/L) and methamphetamine greater than 1500 µg/L (mcg/L). On 20 January 2021, the Practitioner's hair drug screen yielded the following positive results: zopiclone 68 pg/mg, methamphetamine 339 pg/mg, and MDMA more than 1000 pg/mg.
3. In a document entitled 'Outline of History' as to the events of Sunday 20 December 2020, the Practitioner states: "Sunday 20th December I awoke around 10am on Sunday morning. I had my usual breakfast smoothie, and then went to the gym. I had been messaging someone through a dating app during the week. He was a heavily muscled man, and I was very flattered that he was interested in me at all. I called him just after midday on Sunday, to confirm that we were both genuine. As is my practice now, I had asked him beforehand if he had done any drugs. He denied doing any. I apologised for asking, and explained that I just have to be certain because I get drug tested. He was empathetic with my situation, as he himself had been through a drug testing program surrounding his ex-partner and seeing his daughter. I was reassured by this, and so decided to head over at around 3pm. I parked my car, and went to his building. He buzzed me up to his unit on level 9. When I arrived, he greeted me at the door to his apartment. He invited me in, and brought me to his couch. We engaged in some foreplay, before he offered me a drink from his kitchen, that he had poured prior to my arrival. I asked what it was, and he showed me his Gatorade in the fridge, so I accepted this drink. After this, we moved to his bedroom, and we engaged in sexual activities. We spent a few hours in his bedroom. During this time, he offered me refreshments in the form of further drinks from his fridge which I did not see him prepare. He also went to the bathroom on more than one occasion, for hygiene purposes, which I did not question. At the end of the evening, during one of these occasions where he went to the bathroom, I was left alone in his bedroom. I was looking around for personal lubricant on the bed, and could not find it. I looked around the sides of the bed, and then looked underneath the bed to see if I could find it. On the left side of the bed, underneath the bed and beside the nightstand, was a small tray or box. In it was a glass pipe, with a lighter, and 2 empty plastic "baggies". I immediately recognised them as drug paraphernalia. When he came back into the bedroom, I confronted him about this. I asked him if they were his to which he admitted they were. I asked him if had done any drugs this weekend, and he replied that he had. He told me that he "occasionally uses meth", and had also had MDMA that weekend, whilst "partying" with friends. I asked him why he had not told me about this before I came over, and he explained to me that he "thought I wouldn't come over if I had known about it" and that he "wanted me to come over". He then informed me that he had been smoking in the bathroom without my knowing. He told me he did this away from me as he knew I was against it, and was worried I would leave. I then went to look in the bathroom, and he showed me a box he had kept up on the top shelf of the bathroom cupboard which had his "stuff", including a glass pipe, lighter, and bag of methamphetamines in it. He was correct in that, if I had known about this, I would not have gone over to meet him. I gathered my things, got dressed quickly, and left his apartment. I felt a sense of dread wash over me, my chest tightened, and my face burning. I was anxious, and worried about positive testing on a future Hair Drug test like has happened previously during this program, when I have not taken drugs, but ended up with positive HDS results. I walked quickly to my car and drove home. I worried if the "feeling" I was having, was because I was intoxicated, or if it was just dread and anxiety. As soon as I got home that evening, I went to the bathroom, and checked my pupils, to see if they were pin point or dilated. They were neither. I tried to calm myself down. I was home around 9-9.30pm. …"
4. At the s 150 hearing on 24 February 2021, the Practitioner's oral evidence of the event (Tab 17, p 6, line 37 to p 7, line 49] was fundamentally consistent with this statement. There were some differences and elaborations, which are set out below. 1. In relation to the Gatorade, the Practitioner said: "a drink that was already poured out which was just Gatorade, or I presumed to be Gatorade. I had that drink, didn't think much of it." This is a slightly different version than the one in his original statement, which reads: "he showed me his Gatorade in the fridge, so I accepted this drink." 2. When asked how many drinks he had consumed, the Practitioner said, in oral evidence, possibly three or four during the period, and he did not notice anything unusual such as taste, smell, colour or consistency that raised his suspicions. 3. When the Practitioner saw the drug paraphernalia and "baggies" under the bed, he said: "… I recognised them like kind of immediately and freaked out because obviously I don't want to be near any drugs and I don't want to kind of risk exposure because I know that can happen because in the past I've had positive hair tests when I haven't done anything, potentially it's all been from exposure." 4. Having confronted the man about drug taking, the Practitioner reiterated what he wrote in his statement: "He admitted to having done stuff. When I asked him why he hadn't told me earlier when I'd already questioned him, saying I had - I told him I was on a testing program and I can't afford to be exposed to it and he pointed out he was worried that if he kind of admitted to it that I then wouldn't go over, which he was right, I wouldn't have." 5. When he was taken to the bathroom, the Practitioner said he was shown a pipe and a lighter and told by the man he'd been smoking in there but the fan was on and the window was open, "[s]o I never once smelt anything or suspected anything". 6. When reflecting on whether the man showed any signs of taking drugs, the Practitioner said "he just seemed happy for me to be there and excited, which I was flattered by, but I guess in hindsight you could argue whether or not he was elevated, he clearly was". 7. As well as checking his pupils when he got home, the Practitioner said in addition "I remember checking my eyes in the mirror in the car".

The February 2021 Pathology reports and the pathologist's opinions

1. The pathology report of Dr Marshall on the samples taken from the Practitioner on 21 December 2020 is at Tab 11 of Exhibit 12. The urine sample indicates the presence of methamphetamine. The pathology report of Dr Chang in relation to the hair sample taken on the 20 January 2021 is at Tab 12 of Exhibit 12. The hair sample was positive for both methamphetamine and MDMA.
2. The responses from a doctor from the pathology service at QML (name redacted upon the document provided) to questions from the Applicant on the 22 February 2021 are at Tab 16 of Exhibit 12. Advice from QML to the Council included the following:

• The UDS result supports a standard dose of methamphetamine on either 19 or 20 December 2020.
• The hair sample result from 20 January 2021:
• For methamphetamine, this is consistent with use albeit on relatively few occasions (half a dozen or so uses) but appears too high to be from a single use. However the methamphetamine level is within the range which may be achieved by contamination of the hair with methamphetamine from either the subject's environment or by the secretions (saliva or sweat but not urine) from a close associate.
• For the MDMA result, as MDMA associates avidly with hair, this level too is consistent with use on relatively few occasions (half a dozen to a dozen occasions) but not daily or more frequent use. However, at this level, it is remarkable that no MDA metabolite is detected. This more strongly suggests contamination of the hair with MDMA as the pure substance and not from secretions of close associates (because sweat or saliva would contain an easily measurable amount of MDA metabolite). As drugs contaminating hair tend to wash out of the hair with normal washing procedures, the time of contamination of the hair with MDMA would be likely to be within a week or two of the time of sample collection. If more than a week or two prior, the levels would be expected to be much lower than those noted.

1. This is expert evidence which opines that it is probable that the the Practitioner consumed methamphetamine on either 19 or 20 December 2020 and there was at least one other event during January 2021 where the Practitioner was in close contact with another who was using MDMA as a pure substance in the Practitioner's presence or alternatively, but less likely, he had ingested MDMA directly himself. The expert evidence also makes clear there was no detection of MDMA in the urine test in December 2020.
2. At the fourth s 150 hearing, the following exchange took place between one of the panel, Dr Wilson, and the Practitioner and Dr Cheeseman, who appeared for the purposes of assisting the Practitioner (Tab 17 p 11, line 36 to p 13, line 21): "DR H. WILSON: Thank you. [The Practitioner], so we've got two abnormal drug screens. The urine drug screen that was taken shortly after the event that you've described and a hair sample that was taken a month later. The thing that I'm curious about and I can't quite make sense of is that the one in December showed methamphetamine and what you're saying is that I think my drink was spiked, yes? Which was why there was methamphetamine in that urine drug screen. And then you've got this hair sample a month later which shows methamphetamine but it also shows MDMA. [The Practitioner]: Yes. DR WILSON: How do you explain the MDMA in your hair sample? [The Practitioner]: I've been looking at the toxicologists report that you've provided, kind of noticed that the MDMA has most likely either been from serial low dose consumption or from contamination. I haven't - I haven't taken anything knowingly and it's more in keeping with contamination, which is in keeping with what this guy has done that weekend. DR WILSON: I would note that the pathologist suggests that the MDMA if it were a contaminate would wash out within one to two weeks. So this - - - [The Practitioner]: So that would be a contaminate if it was on my hair, but if it's been absorbed through my skin or however else, a low dose, that would be enough to come up in a hair but not a urine test. DR WILSON: So that suggests a number of exposures or another exposure through contamination closer - not as a part of that event? [THE PRACTITIONER]: I think that's a possibility that that happened but I don't think it says that that is what happened, it said it could be that it (indistinct) a number of exposures. DR WILSON: It could be contamination, it could be because you ingested or smoked or whatever. But yes, I guess that's just my concern is that it sounds like this MDMA was not actually part of that picture on that weekend, that it came from somewhere else, it came from another event or another occasion or occasions. [THE PRACTITIONER]: I don't think so. I don't think that's what the report is saying and there are no other events and I haven't knowingly gone off and taken anything. DR WILSON: So where would the - sorry, the MDMA come from? [THE PRACTITIONER]: I honestly don't know, I can only speculate. So all I know is what happened when I went to that event to meet this guy and that he's offered me drinks and then what I've explained to you in terms of finding stuff beforehand - not beforehand but at the end underneath his bed. He explained to me that he'd ingested stuff over the weekend and taken stuff. He told - explained to me that he'd smoked methamphetamines in the bathroom whilst I was there without me knowing and concealed it by having a fan on and the window open. He didn't mention anything about him having taken MDMA or given me anything, and he's obviously blocked me since then. So I can't say with any certainty I - about any of the testing in all honesty. I emailed my lawyer because I was concerned based on that type of exposure that I may end up with a positive hair test based on my previous experience over the last three years. I was extremely shocked to find that I ended up with a positive urine test. It was the first positive urine test I've had over the entire period of this. I think it - and if I was expecting it to be positive I probably would have - well I don't know what I would have done because I've not gone out and intentionally taken anything. It's difficult but like I haven't knowingly gone off and taken anything. DR WILSON: M'm. [THE PRACTITIONER]: Like I can only speculate. I can't say with any certainty. The only thing I know is like in terms of I've been given drinks that I didn't see him prepare. DR CHEESEMAN: If I could be permitted to comment on this as well, if that's okay? So the urine screen that we're referring to was certainly consistent with an ingestion. We accept that and that is consistent with the toxicology opinions I've obtained independently and with (indistinct) that council has kindly retained. The - we are maintaining there that this ingestion was unintentional and unknowing and possibly malicious in nature by the gentleman that … [the Practitioner] met. With respect to the hair, the Ecstasy has an incredibly high affinity for hair and I'm not sure that using hair to sort of prove a time line for drug use can be relied on. I think that's well recognised within the toxicology community that such hair sampling doesn't necessarily provide any accurate dosing or time line at all. So I think we ask for that consideration as well, please. DR WILSON: Thank you. That's it from me."
3. It can be seen from the above that the Practitioner initially accepted the possibility that there could have been an exposure to drugs in January but then went on to insist that the latest exposure he could have had to drugs was on 20 December 2020. In response to Dr Wilson's question about the pathologist's opinion that the hair sample more strongly suggests contamination of the hair with MDMA as the pure substance and not from secretions of close associates likely to be within a week or two of the time of sample collection, the Practitioner hypothesised that MDMA result in January was a contamination brought about by a low dose absorption through his skin presumably on 20 December 2020 and the dose was low enough not to record on the urine test of 21 December 2020. That hypothesis is not consistent with the expert evidence.
4. Amphetamine, methamphetamine and MDMA are detected by urine drug tests for 2-3 days after the last use, hence the Medical Council protocol of having impaired doctors provide urine samples three times per week should detect nearly all cases of drug use over time. Hair drug testing covers drug use over a 3-month period (when a 3cm sample of hair is analysed). This provides additional information if urine testing has been interrupted or if the breakdown of a drug in an individual is unusually rapid (because of biological variation and other factors). The Practitioner was providing urine drug samples three times per week and until 2 December 2020 these had been negative, except for prescribed fluoxetine, methylphenidate and quetiapine. The urine sample on 21 December 2020 showed a methamphetamine level >1,500 mcg/L and an amphetamine level of 1,080 mcg/L. These are high levels. The amphetamine detected may be a breakdown product of methamphetamine or may represent use of a preparation containing both compounds. The lack of any detection of MDMA in the December urine sample strongly indicates that the exposure to MDMA recorded in January was not as a result of any event before the urine sample was taken.
5. At the fourth s 150 hearing, in final submissions, Dr Cheeseman made the following statement on behalf of the Practitioner (Tab 17, p 20 lines 34 - 44): "… The statements that [the Practitioner] has provided is actually consistent with the expert evidence provided from the QML, the pathologist, in terms of the time lines and the amounts and the possibilities of - and the circumstances surrounding that ingestion. Now of course the tox report can't actually 100 per cent say that an ingestion took place in this amount at this particular time. But certainly there is no inconsistency between the QML tox report and [the Practitioner's] account. As I said, we do not know how this happened, we do fully accept that the urine drug screen did return a positive sample to methamphetamine and was indeed consistent with an ingestion."
6. It appears from the two passages set out above that Dr Cheeseman asserted on the one hand that it is well recognised within the toxicology community that hair sampling doesn't necessarily provide any accurate time line at all, but then on the other that there is no inconsistency in terms of the time lines between the QML toxicology report and the Practitioner's account. We cannot accept a submission that the pathology report by QML of 20 January 2021 and the opinions expressed on 22 February 2021 are consistent with the Practitioner's statement that his most recent exposure to drugs prior to the January sample being taken was on 20 December 2020.
7. In a report dated 18 February 2021 in relation to the drug test on 21 December 2020, Dr Fisher (CAP) concluded: "Either [the Practitioner] was inadvertently exposed to methamphetamine … contained in a glass of Gatorade or he is being duplicitous in his denial of knowingly consuming these drugs If the latter is the case, then he has engaged in a very serious breach of his conditions."
8. Because of the Practitioner's refusal to further participate in the proceedings, there was no ability to further press him about whether there was at least one further event in January 2021 that led to the results in the hair testing that month and whether he actually ingested drugs, or his hair was contaminated by a person using drugs in his presence.
9. However, if the Practitioner is given the benefit of the doubt and the MDMA test results are interpreted as him not consuming MDMA in January but rather being in the close presence of somebody at the time they were doing so, then the credibility of the Practitioner's account of what happened on 20 December 2020 is significantly damaged. The fundamental plank of the story that he tells about what happened to him on 20 December 2020 falls away. We find that the Practitioner's insistence that he would have walked away immediately had he known the man he was meeting was taking illicit drugs, is untruthful. He is not a person at this time who would immediately leave the presence of somebody with whom he wished to have sex if he became aware that person was using illicit drugs in his presence. It leads us to conclude on the requisite standard that the ingestion of drugs by the Practitioner on 19 or 20 December 2020 was deliberate. We agree with Dr Fisher that this is a very serious breach of his conditions.
10. That view is fortified by the Practitioner's subsequent behaviour on 14 June 2021 where he admitted to using methamphetamine and was found in possession of GHB and cocaine.
11. If we are wrong about that, even on the Practitioner's version of events, on 20 December 2020 he recklessly consumed drinks not knowing what was in them, prepared by a person he did not know, in circumstances where the pair were about to engage in sexual activity.
12. Complaint One, particular one, is that the Practitioner breached critical impairment condition 14, which was to abstain completely from the consumption of alcohol or any illicit substances. We are satisfied to the requisite standard that the Practitioner breached that condition on an occasion on either 19 or 20 December 2020 by consuming an illicit substance. Accordingly, we are satisfied the Practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law.
13. We are unable to reach the same conclusion for particular two of Complaint One in relation to the sample of the 21 January 2021, as it is possible upon the scientific evidence that those results are attributable to contamination by close contact with another who was using MDMA as a pure substance in the Practitioner's presence while in close contact with the Practitioner after using methamphetamine. The Practitioner told the Delegates at the fourth s 150 hearing that he did not believe he attended any other events where MDMA was being consumed. We find that assertion was not truthful.

Complaint One, particular 3

1. The Applicant complains the Practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law in that he has contravened condition 7 of his registration when he self-prescribed the following medications: 1. Lovan [fluoxetine] on 11 August 2020; 2. Fluoxetine on13 January 2021; and 3. Fluoxetine and Quetiapine on 29 January 2021. (As indicated above, there were two typographical errors in the dates of these prescriptions particularised in the actual Application; the correct dates were contained in an earlier s 40 Health Care Complaints Act document sent to the Practitioner on 25 January 2022 and in the supporting evidence served upon the Practitioner prior to 30 September 2022.)
2. The condition upon the Practitioner's registration "not to prescribe for self-medication" had been in place since 29 January 2018. The number of the condition not to self-prescribed as at 11 August 2020, 13 January 2021 and 29 January 2021 was condition 7.(Tab 2 ofExhibit 12).
3. At his interview with Dr Fisher on 19 September 2022 for the purpose of preparation of an updated report, the Practitioner denied having written scripts for himself, despite being accused of doing so in the Application (Exhibit 13, Tab 2, p 8). It is unclear to us as to whether the Practitioner was being duplicitous or whether he had just forgotten.
4. The prescriber records from Services Australia at Tab 57 verify that the Practitioner wrote these three scripts. The actual scripts are also in evidence at Tabs 58 and 59 The copy of the script for 11 August 2020 (at Tab 59) is on its face in the Practitioner's handwriting. The handwriting on the other two scripts is the same. We are satisfied on the requisite standard that the Practitioner breached condition 7 of his registration and consequently is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law.

Complaint Two

1. The Applicant complains that the Practitioner is guilty of professional misconduct under s 139E of the National Law in that he has "engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or engaged in 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 the suspension or cancellation of the practitioner's registration".
2. The Applicant relies on the particulars in Complaint One both individually and cumulatively.
3. We have found that the Practitioner has breached two conditions of his registration.
4. The breach of condition 14 was a breach of a critical impairment condition which is particularly serious in the circumstances that the Practitioner was diagnosed with polydrug use disorder and was on the Impaired Registrants Program.
5. These breaches need to be considered in the context of the history that is set out earlier in these reasons. That history demonstrates a pattern of non-compliance, the Practitioner offering excuses or explanations for his non-compliance, and him being given opportunities to continue to practise with conditions. Those conditions expanded over time. It was thought that imposing conditions would be sufficient to protect public safety. A system which allows doctors to continue to practise on the basis that they comply with strict conditions is subverted if a medical practitioner fails to comply with those conditions.
6. We are satisfied that taken together the breaches that have been established in Complaint One are of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration and accordingly we are satisfied that the Practitioner is guilty of professional misconduct.

Complaint Three

1. The Applicant complains pursuant to s 144(a) of the National Law that the Practitioner has been made the subject of a criminal finding for a criminal offence in NSW.
2. The evidence establishes that on 14 June 2021 the Practitioner was charged at Mascot with possessing cannabis and GHB contrary to s 10 of the Drug Misuse and Trafficking Act 1985 (NSW). The background facts have been set out above.
3. On 26 July 2021 at the Local Court of NSW in Sydney, the Practitioner pleaded guilty to both charges. The Practitioner was found guilty but without proceeding to a conviction both offences were dismissed pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.
4. Accordingly, the Applicant has established Complaint Three.
5. The Applicant made it clear that it did not intend that the establishment of this complaint would trigger any disciplinary powers under Subdivision 6 of Part 8 of the National Law and in particular the power to suspend or cancel registration under s 149C(1)(c). Rather, the Applicant relied upon the facts and circumstances of this complaint when making submissions about what protective order should be made arising from the other complaints that have been established.
6. This incident demonstrates that after the Practitioner's registration, and the conditions which attach to it, were suspended, the Practitioner continued to use illicit drugs.

Complaint Four

1. The Applicant complaints that pursuant to s 144(d) of the National Law, the Practitioner has an impairment within the meaning of s 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the Practitioner's capacity to practise the profession of medicine.
2. The Applicant provides the following particulars: 1. The Practitioner has an impairment, namely Polydrug Use Disorder. 2. The Practitioner has an impairment, namely Alcohol Use Disorder. 3. The Practitioner has an established pattern of poly-recreational drug use including GHB, MDMA, cocaine, methamphetamine and LSD. 4. The Practitioner has an established pattern of binge drinking alcohol. 5. The Practitioner has symptoms of Post-Traumatic Stress Disorder. 6. In December 2020 and January 2021, the Practitioner recorded a high-level reading for methamphetamine and amphetamine on his urine drug screening.
3. In relation to the first two particulars, Dr Atherton opines in his report dated 28 February 2020: "I believe that [the Practitioner] has Hallucinogen Use Disorder mild to moderate severity. This is a problematic pattern of GHB use causing significant impairment and distress and this is demonstrated by his use of GHB in 2019 and earlier, despite the huge inherent implications of using this substance. I believe he satisfies the criteria for taking it in larger amounts or over a longer period than intended, failure to cut-down and stop using despite the implications, using it in a situation where it is hazardous i.e. in combination with alcohol and with the knowledge that it previously killed one of his friends and the fact the it is clearly in breech [sic] of his council condition and the implications that this would have into his medical training. This is presumed to be in short-term remission since his last use in early 2019 although GHB is impossible to test in toxicology or bio-markers and can only be assessed on the basis of the person's honesty and also their clinical picture."
4. The Practitioner has previously been diagnosed as having (1) alcohol use disorder and (2) polydrug use disorder. These diagnoses have been made by Council-appointed psychiatrists from 2019 to 2020.
5. Most recently, Dr Robert Fisher consulted with the Practitioner on the 19 September 2022 and opines in his report of 25 October 2022 that the Practitioner does fulfil the criteria for previous Polydrug Use Disorder and Alcohol Use Disorder which will remain a potential lifelong vulnerability.
6. Alcohol use disorder is a condition which is listed and described in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders 5th Edition (DSM 5), one of the two internationally recognised diagnostic and classification systems. Polydrug use disorder is not an official DSM-5 diagnosis (though it did appear in previous versions of the DSM), but it is commonly employed as an aggregate diagnosis by clinicians where there is a pattern of use of multiple, different types of psychoactive substances.
7. The various forms of psychoactive substance use disorder are long term diagnoses. They may go into remission and in DSM-5 there are qualifiers: 1. in early remission; and 2. in sustained remission (where no criteria for a substance use disorder have been met at any time for 12 months or longer).
8. Dr Fisher was not able to say whether the disorder is 'active' or includes 'current use' because the Practitioner declined to participate in any drug testing when Dr Fisher invited him to do so in September 2022.
9. As discussed in Complaint Three, the Practitioner used methamphetamine and was in possession of GBH and cocaine in June 2021. On 19 September 2022, he conceded to Dr Fisher that he had used MDMA in March 2022 when having casual sexual relationships and he told Dr Fisher that he would expect (as at September 2022) his hair test to be positive for MDMA and that it might be positive for other drugs due to contamination by sexual partners' perspiration and other bodily fluids.
10. The Practitioner has chosen not to participate in these proceedings and his lack of willingness to undertake the drug test suggested by Dr Fisher permits us to draw the inference that it would have demonstrated the Practitioner's use of drugs in September 2022. Taking into account all the available history, on the balance of probabilities, with due regard to the seriousness of the consequences for the Practitioner, we find that the Practitioner currently suffers from an active alcohol use disorder and polydrug use disorder.
11. With regard to the question of impairment, the first arm of the definition in the National Law is fulfilled by the presence of one or other of these diagnoses. The second arm is a requirement that the disorder detrimentally affects the doctor's medical practice or is likely to detrimentally affect that practice, and this risk will be evaluated by evidence of substance use, the individual's behaviour and other criteria.
12. The lifelong vulnerability referred to by Dr Fisher is a risk consequent on the neurobiology of addictive disorders and specifically the likelihood of reinstatement. The default is to continue to use the substance in excess. As an example, with regard to alcohol use disorder, DSM-5 states: "Once alcohol intake resumes, it is highly likely that consumption will rapidly escalate and that severe problems will again develop."
13. In his report dated 25 October 2022, Dr Fisher expresses the following opinions, which we accept (at pp 10-12): "[The Practitioner] remains emotionally fragile and says that his mood state ranges from a low of 2 out of 10 with some thoughts of suicide and has considered various means of committing suicide, without attempting suicide. He attributes his state of depression to the stress of not being permitted to practise medicine and having to deal with the HCCC and the potential for being deregistered if he does not agree to enter the Health Program of the Medical Council of NSW and be fully compliant with all conditions including regular testing for drugs or excess alcohol intake. He has in the past engaged in hazardous use of recreational drugs and of alcohol and it is of note that on one occasion when with a group of male friends who had consumed MDMA, one of the friends drowned in a spa bath when intoxicated with drugs. It is of considerable concern that [the Practitioner] is adamant that he will not re-engage with the Health Program of the MCNSW and that he finds the whole idea of it emotionally traumatising… He does mention that his attitude towards this issue might change in a few years' time, but he is incorrigible with … respect to such a prospect currently.… As [the Practitioner] has refused to have supervised drug and alcohol testing, including urine and drug hair testing, I am not in a position to say whether he currently is engaging in drug and alcohol use in such a way that he suffers from an impairment. The fact that he refuses to be tested could be seen as either recalcitrant behaviour on his part, refusing to be instructed to do what he has been told to do, or he has something to hide by not agreeing to be tested.… Despite the fact that I have not seen any evidence of a report of [the Practitioner] being incompetent or having engaged in unsatisfactory professional practise as a doctor, if he is continuing to use recreational drugs and to drink alcohol in hazardous quantities then the "hangover effect" could potentially adversely affect his judgement and performance as a medical practitioner. In addition, if he was using these drugs before going to work the state of intoxication with such drugs or alcohol could impair his ability to practise safely.… Reports from his supervisors and testimonials as to his standards of practice have uniformly been positive, and I believe that he does have sufficient mental capacity, knowledge and skills to practise the profession of medicine.… Unless [the Practitioner] develops insight into the inappropriateness of his attitude towards compliance with testing, then it is in my view a sine qua non, that "no testing should lead to no practise"."
14. We agree the "hangover effect" could potentially adversely affect his judgement and performance as a medical practitioner and if he was using these drugs before going to work, the state of intoxication with such drugs or alcohol could impair his ability to practise safely.
15. We are consequently satisfied that particulars 1 and 2 of Complaint Four are made out.
16. We are also satisfied on the evidence in Exhibits 12 and 13, and particularly the diagnosis provided in Dr Fisher's report of November 2020 (see Tab 18, p 16) that the particulars 3-5 are made out (although we note in Dr Fisher's most recent report of 2022 the practitioner does not report any current symptoms of Post-Traumatic Stress Disorder).
17. In relation to particular 6, we have found at [92], under Complaint One the Practitioner intentionally consumed methamphetamine in December 2020 and was in close contact with a person who used MDMA in pure form in his presence in January 2021.
18. We find that the Practitioner currently has an impairment within the meaning of s 5 of the National Law that detrimentally affects or is likely to detrimentally affect his capacity to practise the profession of medicine.

Complaint Five

1. The Applicant complains the practitioner is not competent within the meaning of s 139(a) of the National Law in that he lacks the mental or physical capacity to practise as a medical practitioner. By way of particulars, the Applicant repeats and relies upon particulars 1-3 of Complaint Four both individually and cumulatively.
2. In two well-known paragraphs, Sackville AJA in Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168] and [170] discussed the relationship and difference between a practitioner being impaired and being incompetent to practise: "… There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine within the meaning of s 64(1)(a) of the Act [now ss 139 and 149C(1)(a) of the National Law.] … The absence of further reasons supporting the finding of lack of competence perhaps suggests that the Tribunal assumed that the existence of an impairment, at least of the kind attributed to the appellant, necessarily meant that he lacked the mental capacity or communication skills to practise medicine. Such an assumption would be incorrect. Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances."
3. At the fourth s 150 hearing, the Practitioner presented evidence from three senior doctors with whom he worked, including the medical director of his hospital's Emergency Department. We do not have that evidence before us but we are satisfied, based upon a review of the records before us, that there is no suggestion of performance issues regarding the Practitioner's practice of medicine. Neither are there any reports that the Practitioner has been under the influence of drugs or alcohol whilst working and treating patients. The Practitioner at this s 150 hearing submitted that there was no risk to the public of his behaviour on Sunday 20 December 2020 because he wasn't rostered to work again until the following Wednesday.
4. There is however a significant concern arising from the history that we have set out that the Practitioner is unable, as a result of his impairment, to exercise good judgment and decision making in circumstances where he was fully aware of the possible consequences of being found to have breached critical impairment conditions on his registration. As we have already observed, at the Council review interview only two days before 20 December 2020, the Practitioner said that he was aware that "hooking up" with somebody he had never met before potentially placed him at risk and he needed to be very cautious. In August 2019, the Practitioner told the Impaired Registrants Panel that he was "aware that addressing his approach to intimate relationships without using drugs is an issue he needs to deal with in therapy…".
5. We take into account the Practitioner's previous drug screening results and his previous assertions to the Medical Council that he would ensure compliance with the conditions of his registration. We are concerned that the Practitioner's decision making and continued use of/exposure to illicit drugs could lead to circumstances where the health and safety of the public is placed at risk. Although there is no evidence that the practitioner has practised under the influence of drugs, the public has a legitimate expectation that medical practitioners do not take illicit substances. Given the Practitioner's diagnosed mental disorders, there is a risk of the Practitioner practising under the influence of illicit substances in the future notwithstanding the fact that there is no evidence of such an event happening in the past.
6. We are satisfied that the Practitioner currently lacks the mental capacity to practise as a medical practitioner.
7. Complaint 5 is established.

Conclusion in relation to the complaints

1. Amongst others, the applicant has established Complaints Two and Five set out in the Application for disciplinary findings and orders filed on 18 August 2022. Having done so, we have power under s 149C(1)(a) and (b) of the National Law to consider cancellation of the practitioner's registration.

What protective order should be made?

1. The Applicant seeks the Practitioner's registration be cancelled with a non-review period of one to two years.
2. The Practitioner has seen several psychiatrists (most recently Dr Patrick Toohey), and clinical psychologists. According to Dr Fisher's most recent report, he has never attended Doctors in Recovery, Narcotics Anonymous or Alcoholics Anonymous.
3. While not much is known about the Practitioner's earlier treatment, Dr Toohey's clinical notes, obtained by the Applicant, show that he has recommended and attempted a number of appropriate psychological treatments and psychoactive agents with the Practitioner. He has also commented in his notes on the Practitioner's lack of consistency in engaging with the recommended strategies.
4. We note in Dr Fisher's report that the Practitioner has purchased modafinil online, but not given any dates and there has been some intermittent use of alcohol. At the time of the Police report in June 2021, he was also reported as using methamphetamine. He told Dr Fisher that the last occasion on which he had recreationally used MDMA was 25 October 2022. The Practitioner attributes his depression to his current situation, including his interactions with the Medical Council, and while this is understood to be very stressful, the "letdown" after taking stimulants, hallucinogens and alcohol is also depressogenic and likely to cause mood dysregulation, including panic and anxiety.
5. Dr Fisher recommends that the Practitioner would benefit from the care of a drug and alcohol specialist psychiatrist and having cognitive behaviour trauma-focused therapy or psychodynamically oriented psychotherapy to help him work though his "reported childhood abuse and his interrupted attachments", but that he currently has an attitude problem that is obstructing his engagement.
6. Dr Fisher also notes that the Practitioner is likely to have a lifelong vulnerability for substance misuse, however, the substance use and psychologically issues can be tackled together and there are many examples of doctors leading productive professional and personal lives when they are motivated to change.
7. Put plainly, this means that the Practitioner will need to accept that these are issues for him before he can start to deal with them, but there is hope if he does acknowledge this is the case. The Practitioner told Dr Fisher in September 2022 that, "I don't think I could go back to medicine because of the trauma of drug testing, having to appear before the Medical Council of NSW and deal with the HCCC", and went on to say, "Maybe in a few years' time I would feel differently".
8. At the fourth s 150 hearing, the Practitioner suggested the matter be resolved by placing increased restrictions on his registration. It appears however, that since February 2021 the Practitioner has developed a resistance to accepting that it was appropriate for the Medical Council to place restrictions relating to his recreational drug use upon his registration on the basis that the use of recreational illicit drugs was not a matter which has, until now, affected his ability to perform as a medical practitioner. It is our view if the Practitioner continues the use of illicit drugs, that use is highly likely to start to affect his work performance in the future.
9. Consequently, it is not appropriate for us to resolve this matter on the basis that further conditions be placed upon the Practitioner's registration.
10. Pursuant to s 149C(1)(a) and (b) of the National Law, we have the power to suspend or cancel the Practitioner's registration. In all the circumstances we find that cancellation is appropriate.

The non-review period

1. The question arises as to how long a non-review period should be. Realistically, once the Practitioner's registration is cancelled, he will not be able to practise as a doctor again until he makes an application to the Tribunal for reinstatement of his registration. For any such application to be successful, it is likely that the Practitioner would have to establish that he had addressed his underlying mental health disorders by demonstrating a pattern of abstinence proven by regular drug testing over a significant period. There will also be a period of time before the Tribunal will schedule a hearing of that application. We note that in the Council Review Interview on 18 December 2020 the practitioner was advised he would require 18 months' of full compliance with thrice-weekly testing before he would be considered for random testing. The Practitioner indicated to Dr Fisher that he had no current inclination to participate in testing. With those considerations in mind, under s 149C(7) of the National Law, we shall order that an application for review of order 1 may not be made until after the expiration of two years from the date of that order.

Should the Practitioner's name be suppressed?

1. At the conclusion of the hearing the Presiding Member raised with Counsel for the Applicant whether a non-publication order in relation to the Practitioner's name should be considered, based upon the medical evidence relating to his suicidal ideation. The Applicant indicated it would consider the question and possibly make submissions. These submissions were provided on 27 February 2023. The Applicant neither opposes nor consents to the anonymisation of the Practitioner's name. The Applicant points out the Practitioner has not made any application for the non-publication of his name.
2. In Dr Fisher's most recent report dated 25 October 2022, he indicated the Practitioner had said on 9 September 2022 he had formulated a plan for suicide - optimally, an overdose with the recreational drug GHB rather than prescription medication. He said that he came close to killing himself in early 2021 again when he received the notification from the HCCC regarding the investigation they were conducting. He has thought about walking in front of a train or a car or slashing his wrists as an alternative to taking an overdose of GHB. Dr Fisher reports that the practitioner said that he has not engaged in any para-suicidal or suicidal behaviour. At the time of assessment, he rated his mood at 7 to 8 out of 10, where 0 out of 10 is actively suicidal and 10 out of 10 is his normal happy self. He said that his mood had ranged from as low as 2 out of 10 to 9 out of 10 in the previous month, that is in August 2022).
3. Dr Fisher opines that the Practitioner remains emotionally fragile.
4. Clause 7(1)(b)(iv) of Schedule 5D of the National Law provides that the Tribunal may, if the person presiding thinks it is appropriate in the particular circumstances of the case, direct that any specific evidence not be published. Section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act") provides a similar power.
5. There needs to be special or out of the ordinary circumstances for a non-publication order to be made. There are examples where such an order has been made if there is a real risk that disclosure of the practitioner's name could lead to suicide: see Health Care Complaints Commission v XC [2015] NSWCATOD 9; Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120.
6. The Presiding Member is mindful that it is unusual in a case such as this to suppress the name of the practitioner and that the principles of open justice apply. However, the Presiding Member is of the view that given the Practitioner's emotional fragility, previous suicidal ideations which were relatively strong as recently as August 2022, and the fact that previous suicidal ideations were triggered by the very issues which are the centre of this determination, it would be appropriate to make the order for the Practitioner's name not be published.

Order refusing adjournment application

1. On 20 February 2023, the Practitioner's application for an adjournment was dismissed and reasons were reserved. Those reasons are now provided.
2. The Practitioner has made an application for an adjournment, which is an interlocutory decision under s 4 of the NCAT Act . For the purpose of this adjournment application, the Tribunal is constituted by the Presiding Members 165B(5A) of the National Law, being a senior Judicial Officer: National Law, ss s 165, 165B(2), (5A).
3. On 20 February 2023, shortly before the scheduled commencement of the hearing, which had been scheduled for three days, the Practitioner contacted the Registry and requested that he be able to appear by audio visual link (AVL). Without reference to the Applicant, that request was granted on the basis that it was apparent the Practitioner was not going to attend the Tribunal's hearing rooms in person and it was desirable he be given an opportunity to pursue his application for an adjournment.
4. Shortly after 10am, the Practitioner appeared by AVL. He did not offer any explanation as to why he was unable to be physically present at the hearing.
5. On 14 February 2023, the Practitioner had applied for an adjournment which he now sought to pursue. At no time did the Practitioner provide any evidence to support the adjournment application, but he had made some general assertions in emails sent to the Registry. He principally relied upon a document that he had forwarded to the Registry by email the day before (Sunday 19 February 2023) which had not been served upon the Applicant and a course of correspondence that had commenced on 17 January 2023.
6. Initially the Applicant opposed the adjournment application. Once the Applicant had been alerted to the existence of the document dated 19 February 2023, counsel for the Applicant sought a short adjournment to obtain further instructions. After the adjournment, the Applicant indicated it neither consented to nor opposed the adjournment application.
7. The documents that were made exhibits for the adjournment application (not all of which had been served upon the Applicant), were: 1. The Application for Disciplinary Findings and Orders filed 18 August 2022. This was the application that the Applicant sought to rely upon at the hearing subject to two minor typographical corrections (Exhibit 12, Tab 1). 2. Tribunal Attendance and Service of Order Record dated 2 September 2022. That document recorded the Practitioner attended "In Person". The Practitioner confirmed that he had participated in this directions hearing by AVL (Exhibit 2). 3. Orders made by the Honourable J Boland, Deputy President, on 2 September 2022. At the hearing on 2 September 2022 the following orders were made: "1. Health Care Complaints Commission is to give to the other party, any material on which that party relies on or before 30 September 2022. 2. [The Practitioner] is to give to the other party the following material: a Reply on or before 25 November 2022 3. [The Practitioner] is to give to the other party, any material on which that party relies on or before 25 November 2022. 4. Health Care Complaints Commission is to give to the other party the following material on or before 9 December 2022: all material in reply (if any). 5. The parties are to give to the Tribunal five (5) copies of all their material and four (4) USBs containing that material on or before 9 December 2022. 6. The proceeding is listed for hearing commencing on 20 February 2023 at 10am at John Maddison Tower, Level 10, 86-90 Goulburn Street, Sydney, for 3 days. 7. [A notation in relation to the parties not being able to say whether or not the matter will be heard in a single hearing or a two staged hearing and what those two different processes would involve.]"
8. The Practitioner was emailed a Notice of Listing on 19 September 2022 which again contained the hearing dates as well as information about how to prepare for a hearing.
9. On 16 January 2023, the Applicant emailed a letter to the Practitioner (part of Exhibit 8) which:

• Confirmed the listing of the hearing on 20-22 February 2023.
• Gave notice that if the Practitioner wished to give evidence, he would be required for cross examination.
• Requested that if the Practitioner intended to cross-examine any of the Applicant's witnesses, notice be given by 27 January 2023 and explaining the effect of choosing not to cross-examine a witness.
• Explained to the Practitioner his option to request a two-stage hearing and explaining he should form a position about whether or not he wished to do so.

1. On 17 January 2023, the Practitioner sent an email to the Registry in the following terms (part of Exhibit 4): "Hi I was hoping to get some help with the listing/court date I lost my job at the end of last year, and have been struggling. I want to take this matter seriously, and I need some more time to go through things, I haven't been able to seek legal aid, and don't want to make a mistake now that i later regret I would very much appreciate any help you can provide."
2. On 18 January 2023, the Registrar replied, advising the Practitioner he should first raise his request for more time with the Applicant and then seek an extension of time advising how long he required. The Registrar indicated that the Registry was unable to give legal advice but provided a "Getting Help Fact sheet" that listed a range of services that may be able to be accessed for advice or assistance (Part of Exhibit 4).
3. The Applicant had not been copied into the exchange on 17 and 18 January 2023.
4. On 17 January 2023, the Practitioner wrote to the Applicant in the following terms: "How do I go about delaying the hearing. I need to get legal aid from a charity, and try to sort out this thing properly, rather than just ignoring it."
5. The Applicant replied almost immediately in the following terms (Exhibit 11): "Hi [Practitioner], If you want to change the timetable or apply to adjourn the hearing you will need to get the matter re-listed for a directions hearing so you can ask the Judge. You can email the Tribunal at od@ncat.nsw.gov.au. Please copy me into any correspondence. I have provided a link to NCAT's guideline on seeking adjournments which should give you some more information [a link to the NCAT guideline on adjournments publicly available on the NCAT website was enclosed with this email]."
6. On 3 February 2023, the Applicant wrote to the Practitioner, advising that they intended to seek that the matter be relisted so that the Tribunal could consider the lack of compliance by the Practitioner with the directions to provide both a Reply and the evidence upon which he relied.
7. On 6 February 2023, the Applicant emailed the Practitioner (part of Exhibit 8):

• Confirming the dates listed for the hearing.
• Confirming the orders sought by the Applicant had not changed since August 2022.
• Giving the telephone and email details in the event the Practitioner wished to discuss the matter

1. On 6 February 2023, the Registrar emailed both parties notifying them of a listing on 8 February 2023. The Practitioner acknowledged that he received this email but claims he did not read it until after 8 February 2023.
2. The matter came before Judge Cole on 8 February 2023. Her Honour made the following notation which was forwarded to the Practitioner on that day (Exhibit 5): "There was no appearance by [the Practitioner] at the directions hearing on 8 February 2023. I note that [the Practitioner] was informed of the listing of the directions hearing on 6 February 2023. [The Practitioner] is in communication with the Health Care Complaints Commission and is aware that the hearing is listed for 20-22 February 2023 at John Maddison Tower in Goulburn Street, Sydney, to be heard in person. [The Practitioner] has not served any material on the Health Care Complaints Commission, but no application for an adjournment of the hearing has been made. The hearing will proceed, as listed, on 20-22 February 2023."
3. On 10 February 2023, the Applicant emailed the Practitioner (part of Exhibit 8):

• Informing him about what happened on 8 February 2023.
• Indicating Dr Fisher would be available to give evidence at the hearing.
• Noting the lack of a Reply or any evidence from the Practitioner meant that the Applicant did not know what his position was in respect of the complaints.
• Reserving the Applicant's right to object to material filed late.

1. On 13 February 2023, the Practitioner emailed the Registry, without copying the Applicant, in the following terms (Exhibit 6): "I need this court date to be delayed - I am not prepared - and I do not know what to do."
2. On 14 February 2023, the Practitioner emailed the Applicant and the Registry in the following terms (Exhibit 7): "Hello I am emailing to request an adjournment to next week's hearing, scheduled for Monday-Wednesday February. I have been trying to get this delayed since mid January. I need to get further documentation together for you, but want to give as much notice as possible. I had already mentioned this to Lucy Cannon, as noted on January 17th. I was unaware of the directions hearing on 8 February, and would have hoped that Ms Cannon would have mentioned my request to delay during that time. Please contact me ASAP as this is of huge significance to the course of my life and my future. I had not been able to get any legal advice or assistance, and have been suffering with severe anxiety + depression. I have supporting letters from my GP, and have a referral to see a clinical psychologist to help support me, so that I can respond to this all properly."
3. On 14 February 2023, in a document sent to both parties, the Registrar acknowledged the Practitioner's request for an adjournment, indicating that the Practitioner had to ascertain the attitude of the Applicant to the adjournment and that the Tribunal would subsequently consider the application, advised that the matter could be dealt with on the papers if both parties agreed and that submissions on the issue needed to be lodged by both parties. Finally, the Registrar confirmed that the next listing date remained in place unless the parties were advised otherwise (part of Exhibit 8). The Practitioner filed no material in support of the application prior to the close of business on the last working day before the first day of the hearing and the application for an adjournment remained extant on the first morning of the hearing.
4. On 15 February 2023, the Applicant emailed the Registry and the Practitioner (part of Exhibit 8):

• Acknowledging the Practitioner's request for an adjournment.
• Indicating the Applicant's opposition to the application for an adjournment.
• Observing no evidence had been filed in support of that application and no explanation was provided.
• Referring to the email sent by the Applicant to the Practitioner on 17 January 2023 in which he was provided with information on how to request an adjournment.
• Referring to the lack of appearance by the Practitioner on 8 February 2023 (but not acknowledging the statement in the email by the Practitioner on 14 February 2023, "I was unaware of the listing on 8 February 2023").
• Referring to the costs incurred by the Applicant in the preparing for the hearing.
• Asking that the application for adjournment be dealt with on the papers.

1. On 19 February 2023 (Sunday), the Practitioner emailed a document to the Tribunal (not copied to the Applicant) which was not sworn or affirmed, but was in the following terms (Exhibit 10): "Dear members of the court I am requesting an adjournment on account of needing more time to get my affairs in order, due to the seriousness of the outcome of this case. My potential deregistration will have a grave outcome on my life and livelihood. I have been overwhelmed with the gravity of what is going on, and what has been happening over the past few years. I recognise that I have not been managing myself to the best of my ability, which is why I contacted my GP last week, and sought referral to a clinical psychologist for additional support. I also contacted the Medical Benevolent Society earlier this year, for support and advice, a social worker with them was able to refer me for legal advice, but the first contact I received from that was only this Friday just gone, which was not enough time to prepare anything. I have been unable to go through the evidence served upon me, due to anxiety and stress. I am seeking out additional support and guidance to assist with this, so that I can properly prepare for this case. I contacted Lucy Cannon, of the HCCC, in January of this year, to seek adjournment, and explained that I was not prepared for the upcoming proceedings, this was declined. I have spent my life working in health care. I have spent a decade practising clinical medicine. Reports noted in the case that has been compiled by the HCCC note that I am a good clinician, with positive reports throughout from all my supervisors. Dr Fisher, who was requested to do a Psychiatric Evaluation on myself, noted that "reports from supervisors and testimonials as to his standards of practice have been uniformly positive, and I (Dr Fisher) believe he does have the sufficient mental capacity, knowledge and skills to practice the profession of medicine." I understand the inconvenience this will cause the other party, and the fact that Dr Fisher is here also, and I am very sorry for my part in this. This is why I had asked the other party for an adjournment at an earlier date, although I have had no legal guidance or aid, and have not navigate [sic] this process well at all. I wasn't even aware of the directions hearing on February 8th until after date had passed."
2. Also, in the context of the adjournment application, regard was had to the contents of Documents Served by the Applicant consisting of 61 Tabs (Exhibit 12) and the Additional Documents Served by the Applicant (Exhibit 13), which included Dr Fisher's report of 25 October 2022.
3. As part of that material, at Exhibit 12 Tab 40, the Applicant provides a copy of their Notice pursuant to s 40 of the Health Care Complaints Act 1993 (NSW) which was sent to the Practitioner on 25 January 2022. That Notice sets out the basis of Complaints One, Two, Three and Four and the particulars upon which those complaints are based. The Notice gave the Practitioner an opportunity to respond to the complaints within 28 days. The Practitioner responded on 25 January 2022 (the same day) in the following terms (Exhibit 12 Tab 41): "Hope you have a lovely Australia Day. I could provide plenty of responses to what has happened but I do not have the energy, I do not want to be a doctor anymore."

Arguments in favour of granting the application

1. The Practitioner's fundamental submission in support of his application was, although he had not yet attempted to prepare for the hearing, now faced with the reality that its commencement was imminent, he had resolved to behave "like an adult".
2. The Practitioner argues that given his registration has been suspended since 24 February 2021, a delay in the final hearing does not pose any risk to the health and safety of the public.
3. The Practitioner has referred to the gravity of the outcome on his life and livelihood. The result of the outcome potentially has a serious effect on when and in what circumstances the Practitioner might regain registration to practise as a doctor.
4. Whilst the original suspension of registration was on 24 February 2021, the Practitioner was given notice of the fundamental complaints, together with particulars of the basis of those complaints, on 25 January 2022. The Application for Disciplinary Findings and Orders was only filed on 18 August 2022 and this is the first occasion the matter has been scheduled for a final hearing.
5. In addition, the Practitioner says (without anything to corroborate it):

• He saw his GP in the week before the hearing and has a referral to a clinical psychologist "for additional support".
• He hasn't "been able to seek legal aid".
• He had received contact from a lawyer (not named) on the last working day before the hearing. He has not yet retained that lawyer. He said the lawyer advised him to seek an adjournment and if successful, to provide him with papers to peruse.
• He had earlier attempted to get the Applicant to agree to an adjournment but that request was declined.
• He lost his full-time job at the end of 2022 and "has been struggling" (presumably the Practitioner meant financially). The Practitioner indicated that if any costs order was made against him, he may possibly declare bankruptcy.
• When working as a clinician, he has had positive reports from his supervisors.
• The Practitioner said he understood and was sorry for the inconvenience a successful application for an adjournment would cause.

Arguments against granting an adjournment

1. The argument mounted for an adjournment by the Practitioner primarily asserts that his mental impairment has precluded him from even beginning to read the material upon which the Applicant relies.
2. The Practitioner acknowledged that he had received documents served by the Applicant (Exhibit 12) on or before 30 September 2022 but he had not looked at it "due to anxiety and stress". He had received the additional documents (Exhibit 13) sometime in October, but he had only read Dr Fisher's report on the weekend prior to the hearing. However, the Practitioner conceded that he would have been familiar with most of what was in Exhibit 12, having been at the centre of the focus of various hearings, interviews and reviews with which the bulk of Exhibit 12 is concerned.
3. In addition, in January 2022, the Practitioner received a document pursuant to s 40 of the Health Care Complaints Act (Exhibit 12, Tab 40) which succinctly set out the substance of the complaints and particulars upon which the application is based.
4. The Practitioner was in full-time employment until the end of 2022. He had in his possession, on or before 30 September 2022, the evidence upon which the Applicant relies. There is no evidence from the Practitioner as to why he did not even look at this material apart from the Practitioner's explanation that he was "anxious and stressed".
5. Whilst the Practitioner has self-diagnosed as being "anxious and stressed", he has not provided any independent evidence that he had been too ill to prepare for his hearing. The conditions referred to in Dr Fisher's most recent report do not adequately explain why the Practitioner has not prepared his case. There is no independent evidence as to how future therapy might improve that position and no evidence as to the availability to such therapy.
6. The Practitioner was ordered to file a Reply and material upon which he relied by 25 November 2022. He failed to do either. Even today, the Practitioner provides nothing to indicate whether he accepts any or all of the complaints and what might be the nature of the material he might wish to rely upon. He simply claims he is "clueless" and hadn't, until very recently, appreciated the gravity of his situation.
7. Notwithstanding an invitation to provide all documents which were relevant to his adjournment application, the Practitioner produced no evidence at all. There is no evidence as to his involvement with the Medical Benevolent Society and no information about the identity of his proposed lawyer.
8. The Practitioner knew on 3 February 2023 that the Applicant sought to have the matter relisted for the Tribunal to consider the failure of the Practitioner to file any material. It would have been reasonable to assume that the Practitioner would have been vigilant to check for any notification of the proposed listing. It is symptomatic of the Practitioner's attitude that he failed to notice the communication from the Tribunal on 6 February 2023.
9. The Practitioner received notice on 8 February 2023 as to what had happened at the Tribunal on that day. There is no reasonable explanation from him as to why it took until 14 February 2023 for him to make an application for an adjournment.
10. It is important to have regard to the nature of the history of the Practitioner's registration. Since November 2017, conditions have been placed upon the Practitioner's registration. He has been involved in four s 150 hearings, multiple assessments by three Council Appointed Psychiatrists and interviews with the Impaired Registrants Panel. Between November 2017 and 24 February 2021, the conditions upon the Practitioner's registration became more restrictive. Until at least September 2021, he continued to see Dr Toohey, his treating clinical psychiatrist. Inferentially, the Practitioner no longer consults with Dr Toohey but we have no information as to when those consultations ceased.
11. Whilst compliant with conditions in certain periods, the Practitioner failed to comply with conditions on multiple occasions. He has been given the benefit of the doubt on a number of occasions up to 24 February 2021.
12. A number of comments made by the Practitioner could be interpreted as casting some of the blame for his present predicament upon Ms Cannon, Acting Manager, Legal Services, Health Care Complaints Commission. The contents of Exhibit 8 and particularly Exhibit 11 make it plain that Ms Cannon has attempted to assist the Practitioner and alert him to his obligations under the orders made by the Tribunal and point him in the direction of guidelines that would have assisted him in making an application for an adjournment.
13. There is no indication by the Practitioner as to what information he still needs to put together for his case nor any explanation as to why it is currently not available.
14. It is unlikely that the Applicant will recover costs thrown away by the adjournment given the Practitioner's statement that he will need to contemplate bankruptcy.
15. Having regard to the history of the Practitioner's attention to this case, there is no guarantee that if an adjournment is granted, the Practitioner would be in any better position to advance a case in reply to that mounted by the Applicant. One doubts the Practitioner's ability to secure and properly instruct a lawyer, given he has had ample opportunity to do so in a period of time when he was in full-time employment. As we understand it, the Practitioner asserts that he had been unable to read the documents sent to him for this hearing as they make him too stressed. This was at a time when he was working. There is nothing that convinces us that he would now be able to pay attention to the documents.
16. The provisions of the National Law provide that protection of the health and safety of the public must be the paramount consideration (s 3A). and that the Tribunal should hear and determine inquiries expeditiously (s 11(1)). Section 3(d)-(e) of the NCAT Act includes the following Objects: 3 Objects of Act … (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and (e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of high quality, …
17. Section 36 of the NCAT Act again emphasises as a guiding principle the facilitation of a just, quick and cheap resolution of the real issues in proceedings and specifically refers to parties complying with directions made by the Tribunal in that context.
18. The Tribunal has published guidelines, to which the Practitioner was referred, in relation to adjournment applications which include the need to manage cases and hearings fairly and efficiently and make sure cases are heard as soon as possible and allowing an adjournment only if a party requesting it has a good reason and it is fair in all the circumstances to adjourn the hearing.
19. Factors to take into account are the grounds for requesting the adjournment, whether the need for the adjournment is the fault of one of the parties, any disadvantage to the parties if an adjournment is allowed or refused, and the impact of any delay on the principle that the Tribunal must facilitate the just, quick and cheap resolution of issues in the proceedings.
20. The High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 commented upon modern case management principles saying, at [114]: "… that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants". (our emphasis)
21. The Presiding Member concludes that the Practitioner has had a reasonable chance to respond to information provided by the Applicant. On balance, the Practitioner has not demonstrated that there are good reasons that it is fair in all the circumstances to vacate the hearing dates and adjourn the hearing. It is for these reasons that the Practitioner's application for an adjournment was dismissed.

Costs

1. The Applicant seeks that the Respondent pay the Applicant's costs as agreed or assessed under clause 13 of Schedule 5D of the National Law. The Applicant has been successful. There is some indication by the Respondent that he is currently in a parlous financial state. Impecuniosity, however, is not a bar to the making of a costs order. The Applicant is entitled to the order for costs which it seeks.

Orders The orders of the Tribunal are as follows: 1. Pursuant to s 149C(1) of the National Law the Respondent's registration is cancelled. 2. Under s 149C(7) of the National Law an application for review of order 1 may not be made until after the expiration of two years from the date of order 1. 3. Pursuant to s 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013 (NSW), an order is made prohibiting the publication of the name of the Respondent. 4. The Respondent pay the Applicant's costs as agreed or assessed.

Appendix A : Conditions upon the Practitioner's registration as at the date of suspension "1. To obtain Medical Council of NSW ("Council") approval prior to changing the nature or place of his practice. 2. To practise only in a Council approved public hospital position. 3. Not to work later than 12am (Midnight). 4. Not to undertake locum positions. 5. To nominate an experienced medical practitioner to act as his professional mentor for approval by the Council in accordance with the Council's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. a. The terms of the Council's Compliance Policy - Mentor are varied so that the practitioner is to meet with the mentor on a fortnightly basis. b. At each mentoring meeting the practitioner is to include discussion of the following: i. Professionalism ii. Career progression iii. Work/life balance iv. His personal and professional development v. Initially the issues highlighted in the decision which imposed this condition and then any personal or medical practice issues as they arise c. To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. d. To authorise the Council to provide proposed and approved mentors with a copy of the decision which imposed this condition and the full 6. Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Council that he has provided a copy of his full conditions to the Director of Emergency Medicine Training or equivalent. 7. Not to prescribe for self-medication. 8. To attend for treatment by a general practitioner of his choice. The frequency of it is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the Council of any of the following: i. Failure to attend for treatment ii. Termination of treatment; or iii. A significant change in health status (including a significant temporary change). b. must provide the Council with the professional details of the treating practitioner. 9. To attend for treatment by a Psychiatrist, of his choice with expertise in Addiction Medicine. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the Council of any of the following: i. Failure to attend for treatment; ii. Termination of treatment; or iii. A significant change in health status (including a significant temporary change). b. must provide the Council with the professional details of the treating practitioner. 10. To take any medication prescribed by his treating practitioners. 11. That the extent of his professional medical duties is to be guided by his health status and the advice of his treating and Council Appointed Practitioners. 12. Not to self-administer: a. any Schedule 4D or 8 Drug b. Any narcotic derivative, non-prescription compound analgesic or cold medication. Such medications must only be prescribed and taken at the direction of his treating practitioner. 13. That should he be prescribed or directed to take a: 1. Schedule 4D or 8 Drug, 2. narcotic derivative, non-prescription compound analgesic or cold medication, he must agree to notify the Council Appointed Psychiatrist and the Council. In addition within seven days he must provide the Council with written confirmation of such treatment from the treating practitioner. 14. To abstain completely from the consumption of alcohol and any illicit substances. This is a Critical Impairment condition. 15. To comply with the Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for: a. urine drug screening three times a week, b. quarterly hair drug screening. This is a Critical Impairment condition. 16. To comply with the Council's Alcohol Screening Policy and Participant Procedure: EtG screening (as varied from time to time) and attend for EtG screening (urine) 3 times per week. This is a Critical Impairment condition. 17. To attend for review by a Council-appointed psychiatrist on a 3 monthly basis or as otherwise directed by the Council. 18. To attend a Council's Review Interview on a 3 monthly basis, or as otherwise directed by the Council. 19. To authorise the Council to forward copies of the Impaired Registrants Panel report, subsequent Council Review Interview reports and other relevant to his impairment to the Council Appointed Practitioners and his treating practitioners."

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

Amendments 17 March 2023 - 17 March 2023 - Paragraph 150 corrected. In the second sentence, delete the words "but so far as we aware it has not done so". After the second sentence, insert the following: "These submissions were provided on 27 February 2023. The Applicant neither opposes nor consents to the anonymisation of the Practitioner's name. The Applicant points out the Practitioner has not made any application for the non-publication of his name." 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: 17 March 2023