[1938] HCA 34
Chen v Health Care Complaints Commission (2017) 95 NSWLR 334
Source
Original judgment source is linked above.
Catchwords
[1938] HCA 34
Chen v Health Care Complaints Commission (2017) 95 NSWLR 334
Judgment (20 paragraphs)
[1]
REASONS FOR DECISION
The Health Care Complaints Commission ("the Commission") brings three complaints in in relation to FWX ("the practitioner").
Complaint 1 asserts that the practitioner is guilty of unsatisfactory professional conduct pursuant to sections 139B(1)(c) and/or (l) of the Health Practitioner Regulation National Law (NSW) ("the National Law") in that he has contravened conditions of his registration and/or engaged in improper and unethical conduct relation to the practice or purported practice of medicine.
By Complaint 2, the Commission contends that the practitioner is guilty of professional misconduct under section 139E of the National Law in that he has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation or suspension of his registration and/or has 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 his registration.
The Commission further asserts in Complaint 3 that pursuant to section 144(d) of the National Law the practitioner has an impairment within the meaning of section 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.
The particulars supporting this complaint are that the practitioner suffers from the following conditions or disorders:
"a. Major depressive disorder of moderate severity in remission;
b. Cluster B Personality Traits;
c. Nicotine use disorder of mild severity - in remission;
d. Benzodiazepine use disorder and opiate use disorder - in remission."
The practitioner admits Complaint 3 and the supporting particulars that they satisfy the definition of "impairment".
Before turning to the other complaints and the particulars on which the Commission relies to support them, it is helpful to set out in some detail the facts and circumstances of the matter to give context to the particulars relied on by the Commission as founding Complaints 1 and 2.
The practitioner graduated with a MBBS from the University of Newcastle in 1996 and was granted general registration on 4 February 1998. In 2006, he obtained fellowship in Otolaryngology, Head and Neck Surgery and from 2006 became a Fellow of the Royal Australasian College of Surgeons. Since then, he has been in private practice as an ENT and Facial Plastic/Reconstructive Surgeon. From 2010, the practitioner has been the Head of Department in ENT/Head and Neck Surgery at a private hospital in Sydney.
The practitioner came to the notice of the Medical Council of New South Wales ("the Medical Council") in 2016 when a complaint was made which alleged that he had used nitrous oxide recreationally. The complaint was not followed up because the complainant refused to cooperate with the Medical Council. In February 2018, the Medical Council received an anonymous complaint alleging that the practitioner used nitrous oxide recreationally. When the complaint was put to the practitioner, he denied it. A third complaint of a different nature was received by the Medical Council in August 2018 but was withdrawn in September 2018.
However, all three complaints were referred by the Medical Council to the Health Committee and the practitioner was required to attend on a Council appointed psychiatrist to assess whether he was impaired. The assessment was conducted by Dr Robert Fisher, who reported that the practitioner had admitted using nitrous oxide to manage a panic attack in 2016. Dr Fisher concluded that the practitioner was impaired and should be enrolled in the Health Program. The Medical Council determined to hold an Impaired Registrants Panel. Before that Panel could convene, on 21 February 2019, the Medical Council received an anonymous complaint that the practitioner had written prescriptions in his own name for drugs which, the notifier said, would affect the practitioner's ability to operate while under their influence. The notifier also said that the practitioner's partner also prescribed those drugs for the practitioner.
As a result, the Medical Council convened a hearing pursuant to s 150 of the National Law which was held on 4 March 2019 to determine whether the practitioner's prescribing posed a risk to the safety or health of patients or to the public, or whether the practitioner's prescribing and that of his partner of drugs for his use posed a risk to the safety or health of the public or a risk to the good reputation of the medical profession. Secondly, the hearing considered whether the practitioner was impaired.
The practitioner told the hearing that the medications, although prescribed in his name, were prescribed to stockpile for patients' use in his practice although he said some of the medication had been prescribed by him for his own use.
The Panel in its reasons for determination noted that the practitioner's explanation for the prescribing was contrary to recommended practice and his evidence that he prescribed medication for himself was contrary to the guidelines. The panel concluded that the prescribing warranted conditions being imposed on the practitioner's registration.
The Council appointed psychiatrist, Dr Robert Fisher, interviewed the practitioner and reported to the Medical Council that, in his opinion, the practitioner met the definition of impairment according to the National Law. He recommended that the practitioner be admitted to the Impaired Registrants Program, that he undergo hair drug testing and have regular appointments with a psychiatrist.
According to the Panel's reasons, the practitioner overall did not cavil with the basis on which Dr Fisher found him to be impaired, although he did not agree with the recommended hair drug testing. The practitioner said that even though he had been subject to urinalysis for some time (having been implemented by order of the Family Court as part of an ongoing dispute between the practitioner and his ex-wife over his time with the children), he would nonetheless accept the condition if the Panel decided it was necessary.
On 7 March 2019, conditions were imposed on the practitioner's registration which included the following health conditions:
"1. Not to prescribe for self-medication.
2. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner:
a) is to authorise the treating practitioner to inform the Medical Council of NSW 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.
3. To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner:
a) is to authorise the treating practitioner to inform the Medical Council of NSW 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.
4. To attend for treatment and monitoring by an Addiction Specialist (either an Addiction Medicine Specialist [FAChAM] or an Addiction Psychiatrist [Cert. Addiction Psych.]) of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner:
a) is to authorise the treating practitioner to inform the Medical Council of NSW 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.
5. Not to self-administer any:
a) prescribed restricted substance (Schedule 4 Appendix D drug) or drug of addiction (Schedule 8 drug); or
b) narcotic derivative, non-prescription compound analgesic or cold medication;
unless such medications are prescribed by his treating practitioner and taken as directed by his treating practitioner.
Within seven days of being prescribed such treatment from his treating practitioner, the practitioner must:
a) notify the Medical Council of NSW and Council appointed practitioners.
b) provide written confirmation of the treatment from the treating practitioner to the Council.
6. 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.
7. To comply with the Medical Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for:
thrice weekly urine drug screening;
quarterly hair drug screening.
8. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions."
On 24 June 2019, a further s 150 panel was convened in response to a report from Dr Atherton, the Council appointed psychiatrist, who said that in a recent interview, the practitioner's performance on a Cognitive Assessment was "well below the expected cut off" and he felt that the practitioner should undergo formal neuro-psychiatric cognitive assessment and that he should not practise medicine until the assessment had been conducted.
During that hearing, the Panel members indicated to the practitioner its concerns that he had missed 7 urine drug screens in April and May 2019 for which had given a number of explanations, including that he had work commitments and had attended a wedding. The Panel also raised with the practitioner that the urine drug screens between 25 March and 17 May 2019 showed the presence of quetiapine, lignocaine, oxycodone, morphine, codeine, opiates and benzodiazepines which the practitioner said were drugs prescribed for him by treating practitioners and he produced letters from his treating doctor about the prescription of those drugs.
The reasons of the Panel note:
"Despite this reticence to undergo UDS, he has recently had a mind shift and is in a better place. He noted that he undertook UDS on 20 and 21 June 2019. He understands that the Council is required to protect the public. He loves his work and is a safe, competent medical practitioner."
(emphasis in original)
Despite the practitioner's evidence that he had, in recent times, experienced a "mind shift" which he said would lead to future compliance with the conditions on his registration and in particular urine drug screening, the Panel said that given the number of occasions on which the practitioner missed the urine screens, it remained concerned about his compliance with Council imposed conditions.
The Panel concluded that the practitioner was impaired and, given the cognitive tests undertaken by Dr Atherton, for him to continue to practise would pose a risk to the safety or health of the public. Thus, the Panel determined that the practitioner should not practise until he urgently undertook a full neuro-cognitive assessment.
The practitioner's registration was suspended from 5.00pm on 24 June 2019.
A report of the neuro-psychiatric assessment by Ms McMillan was provided on 1 August 2019 which said that the practitioner's results on being tested were better than those from the tests conducted by Dr Atherton. Nevertheless, Ms McMillan expressed the opinion that the practitioner's level of cognitive functioning was below his premorbid level of functioning but said that his level of cognitive impairment would not significantly impact his ability to practise medicine, subject to there being appropriate conditions on his registration.
The neuro-psychiatric assessment was considered at an Impaired Registrants Panel on 13 September 2019.
The practitioner said that during the period of his suspension he had completed treatment for his neck and shoulder pain and he had been admitted to a clinic for anxiety and depression under the care of Dr Ahmed.
The reasons for determination of the Panel note the practitioner as saying that he understood the role of the Medical Council is to protect the health and safety of the public and, at the time of the hearing in September 2019, he was approaching the conditions on his registration "from a different perspective".
The Panel determined to lift the suspension of his registration but proposed that conditions be imposed on his registration. The Panel noted that each of the proposed conditions was explained to the practitioner and he was encouraged to seek advice from his legal advisers or the Medical Council if he had questions about them. All of the proposed conditions were agreed and we observe that in this context the conditions on the practitioner's registration could only be imposed with his agreement.
Of the conditions imposed on 14 September 2019, the health conditions were:
"6. Not to prescribe for self-medication.
7. To attend for treatment by a general practitioner of his choice, at a frequency to be determined by the treating practitioner. The practitioner is to:
a. authorise the treating practitioner to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change);
b. provide the Council with the professional details of the treating practitioner.
8. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating practitioner. The practitioner is to:
a. authorise the treating practitioner to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change);
b. provide the Council with the professional details of the treating practitioner.
9. To attend for treatment and monitoring by an Addiction Specialist (either an Addiction Medicine Specialist [FAChAM] or an Addiction Psychiatrist [Cert. Addiction Psych.]) of his choice, at a frequency to be determined by the treating practitioner. The practitioner is to:
a. authorise the treating practitioner to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change);
b. provide the Council with the professional details of the treating practitioner.
10. To take any medication as prescribed by his treating practitioners.
11. 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 any:
a. prescribed restricted substance (Schedule 4 Appendix D drug) or drug of addiction (Schedule 8 drug); or
b. narcotic derivative, non-prescription compound analgesic or cold medication
unless such medications are prescribed by his treating practitioner and taken as directed by the treating practitioner.
Within seven days of being prescribed such treatment from his treating practitioner, the practitioner must:
i) notify the Medical Council of NSW and Council appointed practitioners;
ii) provide written confirmation of the treatment from the treating practitioner to the Council.
13. To comply with the Medical Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for:
a. urine drug screening 3 times a week, and
b. quarterly hair drug screening.
14. To attend for review by a Council appointed psychiatrist on a 3 monthly basis or as otherwise directed by the Medical Council of NSW.
15. To attend for neuropsychometric testing by a Council appointed psychologist, as directed by the Medical Council of NSW.
16. To attend a Medical Council of NSW Review Interview on a 3 monthly basis or as otherwise directed by the Council.
17. To authorise the Medical Council of NSW to forward copies of the Impaired Registrants Panel report and any subsequent Council Review Interview or other reports and any other information relevant to his health and treatment to the Council-appointed practitioners and to his treating practitioners."
A Review Interview was held with the practitioner on 20 December 2019. The Medical Council had received a further report from Dr Atherton dated 27 November 2019 who said that, in his opinion, the practitioner remained impaired and there should be no changes to the Health Practice Conditions. He reported that the practitioner was making good progress towards a more "accepting and healthy approach to his work and lifestyle" and that his cognition has improved. He proposed to review the practitioner in six months' time. No changes were made to the Health Conditions on the practitioner's registration and he remained in the Impaired Registrants Program.
Another Review Interview was held on 4 March 2020. At that time, the Panel had before it a further report of Dr Atherton who said that the practitioner was making good progress and there was no evidence that he was then currently at risk of relapse to benzodiazepine or opiate misuse. He recommended, however, that the practitioner remain on the Impaired Registrants Program and continue to engage with his current psychiatrist and psychologist. He considered it unnecessary for the practitioner to engage with an addiction specialist which was required by Condition 9 of the conditions imposed on 14 September 2019 following the lifting of the practitioner's suspension from practice.
At this review, the Panel raised with the practitioner that he had produced a number of dilute urine samples which he said resulted from him drinking large amounts of water to counter the dry mouth side effect of Endep. Other samples produced positive results for benzodiazepine which he explained was a result of his psychiatrist prescribing Temazepam for him. The Panel observed that the Council had not received notification of the prescription of benzodiazepines. A hair drug test had revealed the presence of cocaine and the practitioner said that it must be through casual contamination as he used cocaine in his treatment of patients.
The report of the Review Panel noted that it did not accept Dr Atherton's opinion that the condition requiring the practitioner to attend on an addiction specialist be removed and that the practitioner had been told that Dr Atherton could not fulfill that role while acting as a Council appointed psychiatrist.
The report also noted that it was reinforced to the practitioner that it is a condition of practice that he provide evidence of any change of prescribed drugs and a copy of the prescription must be sent to the Council.
As a result of the practitioner's failure to comply with a number of conditions as revealed in the 4 March 2020 review, on 10 March 2020 the Council decided to convene a further s 150 hearing which was conducted on 27 March 2020. During this hearing, the matters which ultimately formed the basis of the Commission's complaints to this Tribunal were discussed.
In short, the Panel concluded that the practitioner breached Condition 12 on several occasions.
Similarly, the Panel concluded that the practitioner had breached Condition 9 in that he had failed to attend on an Addiction Specialist. The Panel referred to a letter sent to the practitioner in September 2019 which noted that while the practitioner identified Dr Ahmed as his Addiction Specialist, he was not suitably qualified and referred to a letter sent to the practitioner in January 2020 rejecting his suggestion that Dr Atherton could not fulfill that role.
In relation to the practitioner's compliance with Condition 13, the Panel noted that the practitioner had missed testing and provided dilute samples on a number of identified occasions and was therefore in breach of that condition.
The Panel concluded:
"… [the practitioner's] sustained and repeated breaching of his conditions, which were placed on his registration to ensure the protection of the public. Despite many emails and letters to [the practitioner], there is an ongoing lack of adequate responses to Council to explain his non-compliance and positive test results, and thus the delegates formed a view that [the practitioner] presents a risk to the health and safety of the public."
The Panel suspended the practitioner from practising commencing at 5.00pm on 3 April 2020.
The Panel referred the matter to the Commission and, ultimately, the complaints before the Tribunal were brought.
On 20 May 2020, the practitioner sought a review of the Council's decision to suspend him from practice and a s 150A hearing was convened in June 2020 to consider whether there had been a change of the practitioner's circumstances that justified setting aside or varying the Council's decision to suspend his registration.
Matters of concern to the Panel that had been raised at the s 150 hearing in March 2020 were again discussed with the practitioner. At the time of the s 150A hearing, the practitioner had commenced seeing an Addiction Specialist, Dr Florida, in compliance with the Condition 9 on his registration. The reasons noted the practitioner's explanation that this breach of the condition was inadvertent because he had received contradictory advice as to whether attending Dr Ahmed, his psychiatrist, would fulfil the condition.
During his suspension from practice in April 2020, the practitioner continued to attend for urine drug screens. In that time, however, he produced two dilute urine samples which he said was due to the side effects of Endep and his consumption of water to counter them. The Panel suggested he discuss alternate medication with his treating doctor and observed that the practitioner had received this advice in the past as a means of addressing the dilute urine samples.
As to the practitioner's compliance with the conditions, the Panel said:
"[The practitioner] explained that he had felt resentful and sorry for himself, regarding his involvement with the Medical Council. He did not take ownership of his issues and responsibilities for some time, however his work with Dr Florida has assisted him in viewing his circumstances in a different light.
….
He described a fundamental mind shift and an intention to continue to improve moving forward."
The Panel's report said:
"The delegates noted [the practitioner's] history of non-compliance and breaches of the conditions on his registration. It was noted that [the practitioner's] past reasoning, excuses and minimisation strategies did not reflect well upon his engagement with the Medical Council, nor his commitment to adhere to conditions that were placed upon his registration for the protection of the public.
However, the delegates determined that, given the changes [the practitioner] has implemented - both practical and in terms of the significant observable change in his mindset - it was appropriate to lift the suspension of his registration."
Thus, the Panel concluded that it was appropriate to lift the suspension of his registration. However, it went on and noted:
"[The practitioner] was counselled in no uncertain terms by the delegates the necessity for him to ensure no further breaches of his conditions. The delegates advised [the practitioner] to review in detail all the correspondence provided to him by Council regarding his compliance requirements, and that further claims of confusion or ignorance would not be accepted."
The suspension was lifted on 15 June 2020 and the health conditions imposed on 13 September 2019 were reimposed.
On 14 September 2020, the practitioner returned a dilute urine sample and on 18 September 2020 a hair drug test returned a positive result for cocaine. The practitioner expressed surprise at the dilute sample and said that the specific gravity test at the testing centre had been normal and further that he could only explain the cocaine result by reference to his use of cocaine in his work. It was observed that the thrice weekly urine drug screens produced around that time had not shown positive for cocaine and it was accepted that the most likely explanation for the positive test was environmental contamination.
On 11 December 2020, the Medical Council convened another s 150 hearing and imposed a further condition on the practitioner's practice, being "Not to possess, handle, supply or administer cocaine."
A Review Interview was held with the practitioner on 11 June 2021 and the Panel noted the practitioner's positive progress and that the urine drug screens have been negative. No changes were made to the conditions of practice and he was advised that after 18 months of thrice weekly urine drug screens he would move to random screening for 12 months.
The Tribunal hearing of the Complaints commenced on 19 June 2022 and proceeded to 20 June 2022 when it was adjourned because on 18 May 2022 the practitioner returned a urine sample which was positive for an opioid.
Furthermore, the Medical Council complained that the practitioner had attended for hair drug testing earlier than scheduled, in May rather than in June 2022.
The Complaint was amended to include these two matters as additional breaches of the practitioner's conditions of registration which were considered by the Tribunal in the continuation of the hearing.
[2]
Complaint 1
Complaint 1 contends that the practitioner is guilty of unsatisfactory professional conduct in that he contravened conditions of his registration and/or engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
The Commission supported this complaint with 8 particulars. The particulars refer to breaches of health conditions 9, 12 and 13 imposed in June 2020 which are in identical terms to conditions 4, 5 and 7 imposed in March 2019.
But for particulars 6(f), 6(g), 7 and 8, all of the particulars on which the Commission relies to found the complaint are admitted by the practitioner although the practitioner provided factual context in relation to each breach.
[3]
Particular 1
"The practitioner contravened condition 12 of his registration on the following dates:
a. [withdrawn]
b. Urinary drug testing on 13 January 2020 indicated that the practitioner had self-administered an amphetamine.
c. Urinary drug testing on 18 May 2022 indicated that the practitioner had self-administered an opioid."
Condition 12 is as follows:
"12. Not to self-administer any:
a. prescribed restricted substance (Schedule 4 Appendix D drug) or drug of addiction (Schedule 8 drug); or
b. narcotic derivative, non-prescription compound analgesic or cold medication
unless such medications are prescribed by his treating practitioner and taken as directed by the treating practitioner.
Within seven days of being prescribed such treatment from his treating practitioner, the practitioner must:
i) notify the Medical Council of NSW and Council appointed practitioners;
ii) provide written confirmation of the treatment from the treating practitioner to the Council."
There was no dispute as to the results of the urine drug screens on which these particulars are based and the practitioner admitted that the production of the positive result was sufficient to constitute a breach of the condition. However, the practitioner contended that in neither case did he knowingly self-administer either an amphetamine or an opioid.
Dealing first with the presence of amphetamine in his urine on 13 January 2020, the practitioner said that the day before the test, he drank a glass of juice which, unknown to him, contained his young son's Vyvanse, an amphetamine based drug used to treat the child's ADHD. There is no doubt that the drug was prescribed for the child.
It was conceded by those acting for the practitioner that the positive screen for amphetamine is sufficient to prove a breach of Condition 12.
In his evidence, the practitioner said that at the time he drank the juice, he understood that his daughter was giving his son the medication each day by putting it into juice and that she had been giving him his medication this way for some time. The practitioner said that he saw a glass of juice in the fridge and drank it without thinking. It was later that day that the practitioner was told by his daughter that the medication was in the juice.
The practitioner did not notify the Medical Council of having consumed the drug because he said he was not sure what was in the drug. However, he agreed that one of his conditions required him to inform the Medical Council if he took prescription drugs other than those of which they were notified.
He was unable to explain why he did not inform the Medical Council. He said (Tcpt, 28 November 2022, p 67):
"I didn't think about it properly because I really didn't because if I did I would have … written an email straightaway…I'm not quite sure why …"
We find this particular established.
We turn to consider the second asserted breach of Condition 12 that occurred in May 2022. At this point, the practitioner was no longer required to have thrice weekly urine drug screens but was subject to 15 random drug screens in a six month period. Every day, he was required to call a number provided to him to see whether he was to be tested on that day. On 18 May 2022, he was told he was to be tested. That test produced a positive result for an opioid.
The practitioner said that he had either on the day of testing or the previous day eaten several poppy seed bagels. At a time after he was tested on 18 May 2022, he photographed a packet of bagels, a toaster and a knife and sent that photo to the Medical Council. It is clear that this photo was not taken at the time the bagels were eaten but at the time he sent the photograph to the Medical Council, and tolerably clear that the practitioner in effect re-set the scene from earlier by posing the bagels with the toaster etc.
He said he regarded eating three poppy seed bagels on this day as a "bit of a treat".
In response to receipt of the photo, the Medical Council directed the practitioner's attention to the drug screening policy which, amongst other things said:
"Do not eat food that contains poppy seeds. You cannot use poppy seed consumption to explain a positive screening result."
The practitioner denied he understood this amounted to a condition that he not eat foods containing poppy seeds, but understood that the consumption could not be used to explain a positive test and that eating poppy seeds could lead to a positive opioid test. He then said:
"Well … there's a question of whether it was actually - the level was high enough to trigger a false positive. … I knew there were ways to provide that it was poppy seed and maybe that was in the back of my head reassuring me that I could always prove it was poppy seeds …"
Although he agreed that he did not expect the Medical Council to operate so as to accommodate his individual circumstances, the practitioner asserted that a second test would have assured the Medical Council that he had not used an opioid.
The breach of condition is made out.
[4]
Particular 2
Here, the Commission contends that the practitioner breached Condition 12 by failing to provide the Medical Council with notification of the prescriptions written for him and written confirmation by the prescribing practitioner. The particular states:
"a. Endep prescribed on 22 October 2019, then 15 November 2019, 18 December 2019, 30 January 2020, 23 March 2020 - the practitioner failed to provide the Council with written confirmation of the prescription within seven days and not until 1 April 2020;
b. Temazepam prescribed on and from 30 January 2020 to about February 2020 - the practitioner failed to provide the Council with written confirmation of the prescription from his prescriber within seven days and not until 7 April 2020."
Both of these particulars were admitted by the practitioner and we find them made out.
In response, the practitioner said that his failure to comply with the conditions was "not a deliberate act to avoid my responsibilities" and continued to say that, at that time, there were "many different aspects" of his life which were "distracting him".
It was not, nor could have been suggested, that the practitioner did not understand what it was that he was required to do. His failure to comply with this condition had been the subject of discussion with him before.
In the Written Reasons for the s 150 hearing convened on 27 March 2020, the Panel said:
"The delegates noted [the practitioner's] failure to provide letters from treating practitioners regarding prescriptions he has been, or is currently, prescribed, in particular Endep, Endone and Temazepam.
…
[The practitioner] has provided a photograph of the Endone prescription - the prescription appears to have been written on another doctor's prescription pad by Dr Chew, a radiologist, dated 18 March 2020, with [the practitioner's] name but no address. There is no evidence that Dr Chew treated [the practitioner] nor had any therapeutic relationship with [the practitioner].
…
[The practitioner] provided to Council a photograph of the box of Temazepam prescribed by Dr Ahmed and dated 30 January 2020. [The practitioner] has returned positive test results for benzodiazepines dating from September 2019.
There is no written confirmation of the treatment from the treating practitioner to the Council.
Regarding the Endep, requests have been made for evidence from [the practitioner] however it appears this has not been provided to date. Council is unaware of the prescriber and the purpose of this medication, although [the practitioner] claims use for sleep management.
We do not understand how the breach was other than deliberate in the sense that the practitioner understood his obligations to provide the information and he failed to do so.
We note the submission of the Commission that these defaults occurred after the practitioner had twice been suspended from practising, first from March until June 2019 and then from September 2019 until April 2020, the latter suspension being directly related to his failure to comply with the health conditions on his registration.
There was no dispute either that the practitioner's failure to comply with this part of the condition led to correspondence to him from the Medical Council requesting the information. Ultimately, a s150 hearing was convened and the practitioner suspended from practice.
[5]
Particulars 3 and 4
These particulars relate to Condition 9 which required the practitioner to attend an Addiction Specialist for treatment and monitoring, and that the practitioner provide the Medical Council with the professional details of the Addiction Specialist.
Condition 9 is as follows:
"9. To attend for treatment and monitoring by an Addiction Specialist (either an Addiction Medicine Specialist [FAChAM] or an Addiction Psychiatrist [Cert. Addiction Psych.]) of his choice, at a frequency to be determined by the treating practitioner. The practitioner is to:
a. authorise the treating practitioner to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change);
b. provide the Council with the professional details of the treating practitioner."
The particulars state:
"3. From 22 March 2019 until 3 April 2020 (except for the period 25 June 2019 until 13 September 2019) the practitioner contravened health condition 4/9 of his registration (at the respective times) by failing to attend for treatment and monitoring by either an Addiction Medicine Specialist [FAChAM] or an Addiction Psychiatrist [Cert. Addiction Psych].
4. From 22 March 2019 until 3 April 2020 (except for the period 25 June 2019 until 13 September 2019) the practitioner contravened health condition 9 of his registration by failing to provide the Council with the professional details of his treating practitioner who is an Addiction Medicine Specialist [FAChAM] or an Addiction Psychiatrist [Cert. Addiction Psych]."
These particulars were admitted and we find them established.
In April 2019, one month after the imposition of Condition 9, the practitioner informed the Medical Council that he was attending Dr Tanveer Ahmed in purported compliance with the condition. The Medical Council declined to accept Dr Ahmed as appropriately qualified to serve as his treating addiction specialist.
If not before, but certainly at the s 150 hearing convened in June 2019, the practitioner agreed he knew that the Medical Council considered that Dr Ahmed was insufficiently qualified as an Addiction Specialist for the purposes of meeting the terms of the condition. The practitioner said Dr Ahmed told him he had the relevant qualifications.
We note, however, that on 25 September 2019 the practitioner's compliance officer wrote to him and identified several compliance breaches including that of Condition 9. Attached to the letter is a copy of Condition 9 (Exhibit A, Tab 48, p 46) and a notation:
"You have previously advised the Council that Dr Tanveer Ahmed is your addiction specialist. You should note that Dr Ahmed does not hold the qualifications of either and Addiction Medicine Specialist or an Addiction Psychiatrist as required by this condition. …"
The practitioner was asked to provide details of his treating Addiction Specialist by 4 October 2019. By another letter dated 21 January 2020, the practitioner was again asked to provide the name and contact details of his treating Addiction Specialist and was told that, despite his request, the Council appointed psychiatrist could not fulfill that function. The practitioner's failure to comply with this condition was also the topic of discussion before a s 150 hearing panel in March 2020. After this panel hearing, the practitioner was suspended from practising. At a s 150A hearing held in June 2020 to review that decision, the panel noted that the practitioner had complied with that condition by seeing Dr Florida.
In his written statement to the Tribunal dated 23 May 2022, the practitioner said (par 32) that he noted Dr Atherton's report of 17 February 2020 recommended a removal of the requirement that he attend an addiction specialist and that he continue with Dr Ahmed and said;
"… On this basis, I did not identify and commence treatment with an Addiction Medicine Specialist or an Addiction Psychiatrist."
The practitioner then continued and said (at par 33) when he became aware that the condition was "still enforced", he made arrangements to find and engage with an appropriately qualified specialist. The practitioner continued and said (at par 40) that he complained about this requirement to the Medical Council "but to no avail".
In April 2020, the practitioner commenced seeing Dr Florida, who is an appropriately qualified Addiction Specialist.
It is clear that from at least April 2019 shortly after the condition was imposed, the practitioner had failed to attend an Addiction Specialist. To fall back on his assertion that Dr Ahmed told him he was qualified affords the practitioner little comfort in the light that the Medical Council had told him he was not, and further informed him that Dr Atherton was not appropriate to fulfill the condition. Equally, there seems to be no basis for him to think that at any time after the condition was imposed on his registration, the condition was not being enforced.
[6]
Particular 5
This particular asserts that the practitioner contravened condition 13 of his registration in providing dilute urine samples
Condition 13 is:
"13. To comply with the Medical Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for:
a. urine drug screening 3 times a week, and
b. quarterly hair drug screening."
The particular states:
"5. The practitioner contravened health condition 13 of his registration by providing dilute urine drug screening samples in contravention of the Medical Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) …"
The particular then lists 12 dates from 9 April 2019 until 3 April 2020. The practitioner admits the occasions detailed in the particular and thus the breaches of conditions are made out.
The practitioner said that from October 2019 he was prescribed Endep which he said has a known side effect of causing a dry mouth. Before that from 2016, he was prescribed sertraline which he said caused a dry mouth. The practitioner said that while he took steps to reduce his fluid intake to avoid producing dilute urine samples, it was not effective.
The practitioner's evidence was, in essence, that he needed the medication to keep well and tried to address the side effect of dry mouth. He commenced on a lower dose of Endep in 2020 which he said reduced the side effect. However, the practitioner maintained that he was not in control of the quality of his urine sample and denied he had made a conscious effort to drink fluids to distort the sample.
While the practitioner acknowledged that it was his obligation to ensure the urine samples he produced were not dilute and that a dilute sample acts to hinder the objective test for drug use which is the purpose of the urine drug screens, he said that he offered to pay for the Medical Council to perform a second test on the samples to avoid the difficulties posed with a dilute urine sample. He said:
"I was desperately trying to adhere to their things, at the same time trying to get myself better, and I was offering them alternatives to the current testing regime that scientifically could have got around that problem."
Counsel for the Commission said (Tcpt, 28 November 2022, p 60):
"So did you understand that by returning dilute results you were in effect undermining the purpose of you being engaged in a compulsory drug screening process?"
To which the practitioner said:
"They had the ability to - to test those samples by another method."
The practitioner went on and said that he was not in control of the passing of dilute samples and that it was a function of his physiology.
It appears that, at least to a degree, the practitioner was in control of the quality of his urine sample because it was not every time that he was tested, a dilute sample was produced.
[7]
Particular 6
This particular contends that the practitioner breached health condition 13 of his registration in that he failed to attend for urine drug testing.
"6. The practitioner contravened health condition 13 of his registration by failing to attend urine drug testing on the following dates or the next business day, failing to notify the Council within 24 hours of non-attendance, and/or failing to provide an appropriate illness certificate within 5 business days to support the non-attendance, in contravention of the Medical Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time):
a. 20 May 2019;
b. 27 May 2019;
c. 29 May 2019;
d. 14 June 2019;
e. 17 June 2019;
f. 8 October 2019;
g. 11 December 2019;
h. 13 December 2019;
i. 20 December 2019;
j. 27 December 2019."
Of the 11 dates nominated, the practitioner admits that on the first 5 occasions, he failed to attend and the practitioner said in his statement (at par 57) that this was a difficult time for him personally and he was dealing with an acrimonious dispute with his ex-wife and said "I was not personally equipped to deal with the changes brought about by the drug testing regime imposed on me by Medical Council."
In relation to these occasions, we find the particulars made out.
The practitioner denies breaching the condition on remaining occasions.
[8]
8 October 2019
At this time, the practitioner was required to attend for urine drug screening three times per week. One of those times was a Monday. Monday 7 October 2019 was a public holiday and the practitioner did not attend. However, he failed to attend for testing on 8 October 2019, or rather contends that he was not required to attend for testing the day after a public holiday to "make up" for the day missed because of the holiday.
The Commission contends in pressing this particular, that the rules for practitioners subject to urinalysis is that they are not required to attend for testing on a public holiday but must attend on the next business day to make up for the day lost.
It was agreed that the handbook provided to practitioners who are being drug tested makes it clear that a practitioner is not obliged to be tested on a public holiday.
The Commission relied on a document which forms part of Medical Council's Drug Screening Policy and Participant Procedure which stipulated that when a day is missed because of a public holiday, the practitioner must attend the next business day for testing. The practitioner said that while he received the drug testing protocol which contained a number of hyper-links to other documents, the document he opened did not contain the stipulation that a make-up test be taken. When attempts were made during the hearing to reproduce the documents accessed by the practitioner, it seems that the document which he accessed was no longer available.
A great deal of evidence attended this point however, it seems that in short, the practitioner assumed he was not required to attend to make up for the missed test and he was not told nor was he given a document to that effect and so, did not attend on 8 October 2019.
The practitioner was then subject to thrice weekly drug testing; he did not enquire as to whether a make-up test was necessary. He agreed that at all material times, he had an officer of the Medical Council who was available to him to assist him to comply with the conditions and to explain matters which he might find confusing.
Although the practitioner understood that he was obliged to be tested three times per week and he accepted that it was his obligation alone to ensure he complied with the testing regime, that he did not enquire to ensure he was not breaching the testing requirements is difficult to understand. However, accepting that he had access to a document provided by the Medical Council which was silent as to the need to attend for a make-up test where one is missed because it falls on a public holiday, we do not find that the practitioner breached the condition on this date.
[9]
11 and 12 December 2019
On 11 and 12 December 2019, the practitioner did not attend for testing because he was ill. The contention is that the practitioner breached the terms of the condition by failing to give notice to the Medical Council within the specified time of failing to attend because of illness nor did he provide a medical certificate in the appropriate form. That the practitioner was unwell was not in dispute.
There was no dispute that the handbook for practitioners undergoing drug testing sets out the process for informing the Medical Council of failure to attend because of illness. A particular form of medical certificate is required in the event of a practitioner missing a test. The Medical Council requires an assessment from the treating practitioner whether the practitioner was unfit to attend screening.
The practitioner obtained a medical certificate on 18 December 2019 to cover his illness on these dates which stated that he "… had a medical condition and is unfit for work from 10/12/2019 to 13/12/2019". That certificate was received by the Medical Council as an attachment to an email of the practitioner's solicitor sent on 28 January 2020.
The practitioner said that he attended a general practitioner for the purposes of obtaining the certificate but did not tell the doctor the purpose for which it was to be given, that is to explain missed urine drug screening and to provide an independent assessment that the practitioner was not fit to attend the screening. He said that he told the general practitioner only that he needed a medical certificate. It is hardly surprising then that the information provided by the general practitioner was insufficient for the Medical Council's purposes. It did not contain the required information nor was it provided within the required time.
The breach of the condition on these dates is made out.
[10]
20 December 2019
The practitioner admits that he failed to attend for testing on 20 December 2019. He said that he was required to attend an Impaired Registrants Panel on that day. It is not clear how that attendance provided a basis for the practitioner's not attending testing and none was advanced. In submission, counsel for the practitioner argued that the practitioner was "spoken to about the failure to attend" at a s 150 Panel hearing which ultimately resolved to suspend him from practice, but conceded the attendance on the panel did not excuse the practitioner from attending.
The breach of the condition on 20 December 2019 is made out.
[11]
27 December 2019
On 27 December 2019, the practitioner failed to attend testing. On about 18 December 2019, he wrote to the Medical Council seeking permission to take leave from testing because he planned to go camping with his children over the Christmas period. After having sought leave from testing, the practitioner attended an Impaired Registrants review at which his application was discussed and the practitioner agreed with the Panel's note that he said:
"If the Council insists he undergo UDS at a testing centre near where he was camping he would stay at home …"
Leave was declined. The practitioner did not attend for testing on 27 December 2019. There was considerable discussion in the evidence about where exactly he was over the Christmas period, and whether the practitioner went camping or not, which was unclear and contradictory in parts to the point where it is not possible for us to determine whether or when he went camping with his children. However, in our view, the salient point is that, having sought to be excused from testing and that being denied, the practitioner nonetheless failed to attend, nor is his failure to attend explained by his evidence that "I needed a break …".
This breach of the condition is established.
[12]
Particular 7
This particular is as follows:
"7. The practitioner contravened health condition 13 of his registration in that he attended for hair drug screening earlier than the scheduled quarterly hair testing, namely on or about 18 May 2022 instead of at a time in June 2022."
On 18 May 2022, the practitioner was obliged to attend for a urine drug screen. At this point, the testing was random rather than the fixed thrice weekly testing. On the same day, the practitioner attended his general practitioner in relation to a scalp condition and she prescribed a lotion to use to treat it. Shortly after that attendance, on the same day, the practitioner had his hair cut and then returned to the collection centre where he had earlier provided a urine sample and had a hair sample taken.
At that time, the practitioner had been notified by the Medical Council that his next hair drug screen test would be in June 2022. The practitioner informed the Medical Council that he had submitted to a hair drug test on 18 May and was, as a result not required to attend in June.
It was not suggested that the practitioner's hair was of insufficient length to allow a proper sample to be taken either on 18 May or later in June 2022.
The Condition required the practitioner to attend for quarterly hair testing. It was not submitted that the test was undertaken outside that time frame so as to amount to a breach of the Condition and we are not satisfied that this particular is established.
[13]
Improper or unethical conduct
By Particular 8, the Commission relies on all of the breaches asserted to demonstrate that the practitioner has engaged in improper or unethical conduct.
[14]
Particular 8
This particular is as follows:
"8. The practitioner's overall failure to adhere to the conditions on his registration from about 9 April 2019 through to 18 May 2022 as set out in the above particulars is repeated and relied on."
Unsatisfactory professional conduct is defined by s 139B(1) of the National Law as:
"(a) Conduct significantly below reasonable standard
Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of that practitioner's profession is significantly below the standard reasonably expected of an equivalent level of training or experience.
….
(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice of purported practice of the practitioner's profession."
The assessment of whether a practitioner has engaged in improper or unethical conduct must be read in the context of s 139(B)(1) that is relating to the practice of the practitioner's profession. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190, the Court considered the dictionary meaning of both improper and unethical. The Court accepted (at [31]) "improper" as bearing the meaning "not in accordance with propriety of behaviour…" and "unethical" as "contrary to moral precept, immoral …".
Here, the Commission argued that the practitioner's repeated breaches of the conditions of his registration "… demonstrate a course of conduct that is inimical to the orderly management of impaired practitioners by the regulatory body …", and is thus improper and unethical.
Guided by the authorities above, we do not find it established that the practitioner's conduct in repeatedly breaching the health conditions on his registration amount to conduct which is either improper or contrary to moral precept and we do not find Particular 8 made out.
[15]
Imposition of conditions pursuant to s 150 of the National Law
In considering the breaches established and what flows from that finding, it is important to set out the underlying principles and rationale for the imposition of conditions on a practitioner's right to practise.
Section 150 of the National Law provides that:
150 Suspension or conditions of registration to protect public [NSW]
(1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest -
…
(b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the council considers appropriate; …
In Kirby v Dental Council of NSW [2020] NSWCA 91, the Court of Appeal considered the effect of orders made pursuant to s 150 for suspension or imposition of condition on the registration of a practitioner. Brereton JA said (at [15]):
"In the context of a provision headed 'Suspension or conditions of registration to protect public', and the objective and guiding principle stated in s 3A, the touchstone for the exercise of the Council's power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or that the action is otherwise in the public interest. If so satisfied - regardless of how the matter comes to its attention - it must act. The power is conferred purely for the protection of the public, and thus the Council's sole concern is what if any action is required for the protection of the health and safety of any relevant persons and/or the public interest. This is not a professional disciplinary power, but purely protective. Although disciplinary proceedings may flow from s 150 action (as a result of the referral to the HCCC under s 150D), they are dealt with separately, under other provisions of the National Law which provide for dealing with complaints."
It is apparent, both through the practitioner's reported comments to the various panels and hearings convened by the Medical Council to which we have referred and from his oral evidence in the Tribunal hearing, that the function and purpose of the imposition of conditions was understood by him.
Here, the conditions were imposed on the practitioner's right to practise after he was found to be impaired, a conclusion unchallenged in these proceedings. In March 2019, the conditions were imposed in response to the finding that the practitioner was impaired in light of concerns as to his prescription drug use. After he was suspended and a return to practice was being considered, conditions were again imposed.
On a number of occasions, the practitioner was asked and agreed that the purpose of the imposition of conditions was to protect the public, to ensure that he could practise safely. Equally, he agreed that the purpose of thrice weekly drug testing was to enable the Medical Council to have an objective test by which it could determine whether he was inappropriately using drugs in breach of the conditions.
The practitioner understood that to fail to attend for testing, to produce a dilute urine undermined the efficacy of the testing regime and therefore the safety of the public. He agreed that he was obliged to notify the Medical Council if he consumed prescription drugs other than those of which they were already aware.
In short, the practitioner readily agreed that the various testing regimes permitted the Medical Council to have an objective assessment of whether he was compliant.
[16]
Discussion
Each admitted breach of conditions is per force unsatisfactory professional conduct. The practitioner's extensive evidence was to give context to the breaches and explain the circumstances in which they occurred.
In his statement, the practitioner said that he had not intentionally acted to be in breach of his conditions, yet on a number of occasions, that is exactly what he did. For example, on 27 December 2019, the practitioner knew he was obliged to be tested and that he had not been excused from attending, but he did not attend. He did not attend urine drug screen testing on a number of occasions and sought to explain his non-compliance in various ways, including being "distracted" by other matters occurring in his life. While he agreed he understood the need to provide the Medical Council with information of the drugs prescribed to him and a note about their prescription from the prescriber to explain the presence of drugs in his urine from time to time, the practitioner failed to provide the information for many months notwithstanding letters and emails from the Medical Council reminding him of that obligation.
In relation to the dilute urine samples and the positive response to opioids, the practitioner asserted that the Medical Council could have performed different tests which would have clarified the test results and was somewhat critical that they had not.
He said in relation to the dilute urine samples:
"I think if there was some rigour around the urine - the testing then we could have removed the possibility that I was diluting them on purpose …"
When asked whether he suggested that there ought to be an exception to the testing regime made for him, he said:
"I think that the medication that I was on to get myself better, and should have been taken into account or could have been taken into account …"
He clarified that he was not suggesting the dilute samples be ignored but that the Medical Council should have adopted other testing methods to take into account his particular circumstances.
These established breaches of conditions must be seen against the practitioner's statements made to the various s 150 hearings that he had experienced a "mind shift" (June 2019 and May 2020) and was approaching the necessity of complying with the conditions from a different perspective (September 2019) and against his evidence that being suspended in April 2020 marked a "wake up call" in his acceptance of the conditions to a degree that the suspension in 2019 did not.
However, his evidence about his consumption of poppy seed bagels seems to undermine that change in attitude. Although the practitioner agreed that the guidelines for practitioners undergoing drug testing said in terms; "… do not eat food that contains poppy seeds. You cannot use poppy seed consumption to explain a positive screening result", the practitioner insisted that he did not believe he was breaching a condition in eating the poppy seeds because; "… if it was a condition I don't have poppy seeds I wouldn't have had poppy seeds." He said he had eaten poppy seeds before without it triggering a positive urine test for opioids.
Dr Atherton in his report of 25 August 2022 said of this:
"Clearly this is irresponsible, impulsive and reckless …"
We agree.
In the context of this matter, unsatisfactory professional conduct is defined in s 139B(1)(c) of the National Law as:
(c) Contravention of conditions of registration or undertaking
A contravention by the practitioner (whether by act or omission) of -
(i) a condition to which the practitioner's registration is subject; …
As was said in Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 ("Amalakumar") at [24]:
"We reject the suggestion in the practitioner's case that we have any discretion as to whether a contravention of the kind set out in s 139B(1)(b) of the National Law constitutes unprofessional conduct. Section 139B(1)(b) is unlike s 139(1)(a) or s 139(1)(l), for example, in that it requires no evaluation, assessment or characterisation of the conduct alleged in order to be established."
While the court there spoke of s 139B(1)(b) of the National Law, in our view there is no difference in approach from there adopted to s 139B(1)(c) which provides that a breach of a condition, having been found as a fact, constitutes unsatisfactory professional conduct.
The Court continued in Amalakumar and said, at [27]:
"In the present case, the contravention by the practitioner of a provision of the National Law has been established as a matter of fact. The section designates that contravention as unsatisfactory professional conduct. The Tribunal has no discretion, notwithstanding the fact that we accept that the practitioner contravened his reporting obligations under the National Law as a result of being given the wrong legal advice."
In coming to a determination of the effect of the breaches of conditions found by the Tribunal to be made out in relation to this complaint, we must be "comfortably satisfied" that the complaint had been established on the balance of probabilities having regard to the potential seriousness of the consequences for the practitioner (see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 and Gautam v Health Care Complaints Commission [2021] NSWCA 85).
Taking into account the admitted breaches of the conditions particularised and the practitioner's evidence as to the context in which these breaches were occasioned, we are satisfied that Complaint 1 is established and the practitioner is guilty of unprofessional conduct.
[17]
Complaint 2
The Commission contends:
"The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:
i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or
ii. 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."
In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19]-[20], the Court characterised professional misconduct:
"19. … The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation. …
20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. … Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. …"
A finding of professional misconduct does not necessarily dictate cancellation or suspension of the practitioner's registration, however clearly by its terms it speaks to serious conduct.
In determining whether the practitioner's conduct is of sufficient seriousness to amount to professional misconduct, we take into account that at the time the health conditions were first imposed, the practitioner was found to be impaired and that impairment related to a drug abuse disorder, albeit in remission. The purpose of the imposition of the conditions was to ensure the safety of the public while allowing the practitioner the right to practise.
The purpose of drug screening, both in hair and urine, was to provide the Medical Council with objective evidence of the practitioner's compliance with the conditions and thus the health and safety of the public. So too the condition that required the practitioner to advise the Medical Council of a change in the prescription of medications to him, and if he took medication of which the Medical Council was otherwise unaware, provided another important objective criterion by which his compliance could be measured.
The condition that the practitioner attend on an Addiction Specialist was another means of assisting him to remain well and support the adherence not to use drugs and ensuring the safety of the public. The provision of a compliance officer within the Medical Council too was in order to support the practitioner in understanding and complying with the conditions.
The practitioner breached the conditions on a number of occasions over a number of years and the breaches occurred notwithstanding that he was suspended from practice twice and was reminded on many occasions by the Medical Council of the need for compliance. While the practitioner said on several occasions that he had a change of attitude to the imposed conditions, he continued to breach them.
We have taken into account the practitioner's evidence about the circumstances in which the breaches of conditions occurred, but we are nevertheless comfortably satisfied that the breaches when considered together are sufficiently serious as to amount to professional misconduct.
The practitioner opted to have two stages of hearing in relation to the Commission's complaint, the first to determine whether the Complaints are established and what conclusion follows. The second stage is to consider what are the consequences for the practitioner from the Tribunal findings. The hearing will thus be resumed to determine that second stage.
[18]
Orders
1. Pursuant to s 139E of the Health Practitioner Regulation National Law (NSW), the practitioner is guilty of professional misconduct.
2. The proceedings are to be listed for hearing to determine the orders which are necessary to protect the health and safety of the public. The parties are to prepare and deliver to the Registrar within 7 days of these orders an agreed minute of proposed directions for the completion of the matter, following which a further date for hearing will be allocated.
[19]
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
[20]
Amendments
14 July 2023 - Coversheet - amend Respondent's counsel to "R Coffey".
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Decision last updated: 14 July 2023