Health Care Complaints Commission v Geary

Background

1. The practitioner was born in 1960. In 1984 he graduated in medicine from the National University of Ireland, Cork. He completed his internship and residency in Ireland. In 1986 he migrated to Australia. From 17 November 1986 to 15 December 1988, he held a NSW registration permitting him to practise as a general practitioner.
2. He worked from 1986 to 1996 in hospitals in many parts of Australia, including Fremantle, Launceston, Monash (Melbourne), Darwin and Adelaide. He trained for the Fellowship of the Royal Australian College of Physicians (RACP), with a view to specialising in Gastroenterology. He obtained his fellowship in 1997. (He became a fellow of the Australian College of Rural and Remote Medicine in 1998.)
3. He returned to General Practice. He was granted registration in NSW on 17 September 1997. At about this time, he settled with his wife and their young family in a rural town. He joined a group practice in the town. There were three partners and three associates. With the exception of a short period when his registration was cancelled for non-payment of the annual fee, he held registration continuously until 6 November 2013, the date when he was suspended from practice in connection with matters now the subject of these proceedings.
4. On 18 October 2013 the Director of the Local Health District made a formal notification in relation to three recent matters of concern involving the practitioner that had taken place at the local hospital. The first concern related to his state of presentation as the duty doctor (he was reported to have been unsteady on his feet, with slurred speech, and to have typed up clinical notes that made no sense). The second concern was that he had been obtaining Panadeine from the hospital dispensary under his wife's name, when she had not attended for assessment. The third concern was that he had been requesting Panadeine Forte for himself. In addition there was a separate mandatory notification the same month from doctors at the medical centre. They considered that the practitioner might be suffering from an impairment and reported that he had been self-prescribing Panadeine Forte, Zolpidem, Pseudoephedrine and Tramal SR.
5. The Pharmaceutical Services Unit (PSU) undertook an investigation. The investigation found that over a two year period, from 11 October 2011 to 11 October 2013, the practitioner had issued numerous prescriptions for medications in his and his wife's name, and had regularly self-prescribed various scheduled drugs. The search of dispensing data in the region in which he practised, recorded him as having prescribed medication to himself on approximately 648 occasions; to his wife on approximately 128 occasions; and to one or other of his two older children on approximately 32 occasions.

The First Suspension:

1. The Medical Council convened a s150 inquiry. Section 150 permits the Council to suspend a practitioner in the interests of protection of the health and safety of the community, or for other reasons in the public interest, following inquiry by a panel of delegates. The practitioner appeared and gave evidence to the inquiry.
2. On 6 November 2013 the Panel, on behalf of the Council, determined to suspend his registration immediately ('the first suspension'). He immediately resigned from the group practice. As is usual, the Council referred the matter for investigation by the HCCC, to consider whether disciplinary action might be required.
3. On 5 December 2013 the practitioner was admitted involuntarily to a psychiatric clinic following an attempted suicide. He was discharged on 10 December 2013.
4. In March 2014 and June 2014 in letters responding to the HCCC's investigation, the practitioner admitted all allegations of self-prescribing and admitted prescribing medications to his wife, and to his children. He stated that in the period 2011 to 2013 he had suffered from clinical depression.

HCCC Referral for Psychiatric Assessment:

1. On 27 June 2014 the HCCC referred the practitioner to a consultant psychiatrist (Dr Robert Fisher, Head of Psychiatry, St Vincent's Private Hospital) for assessment as to whether he suffered from an impairment within the meaning of s 5 of the National Law and, if so, whether he remained competent to practise. Section 5 of the National Law defines an 'impairment' relevantly as follows: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - (a) for a registered health practitioner …, the person's capacity to practise the profession.
2. In his report (dated 21 July 2014) Dr Fisher set out the history provided to him by the practitioner. The practitioner acknowledged that he had developed a dependence on Codeine, using Panadeine, Panadeine Forte as well as Diazepam ('Valium'). He attributed his commencement of the use of Codeine to a gym injury he suffered twenty years earlier when he lived and worked in Adelaide. The injury had, he said, resulted in chronic, severe lower back pain which he had sought to alleviate - in this way. He also said that he had difficulties in relation to alcohol consumption which sometimes reached high levels when he felt under stress. He referred to financial stresses that he had faced in recent years after the group practice decided to expand its operation, at what proved to be a very substantial cost. He also reported that he had been receiving treatment from a psychiatrist for a number of years, and was prone to depression.
3. Dr Fisher also noted that the practitioner was now undertaking a rehabilitation program that included regular treatment from his general practitioner and regular attendance on a psychologist.
4. Dr Fisher replied as follows to the question of whether the practitioner suffered from an impairment within the meaning of the National Law: I believe that [the practitioner] does suffer from an impairment, as defined, to wit he had developed a dependence on opioid medication, specifically the codeine contained in the Panadeine and Panadeine Forte. He has also continued to use Valium for management of his anxiety. He would appear to have suffered from a Major Depressive episode some 10 years ago, and it is my view that he is not currently impaired by either of those conditions.
5. As to whether the impairment affected his capacity to practise medicine, Dr Fisher said: I do not believe that [the practitioner] is currently impaired in his ability to practise Medicine. This is the situation which obtains whilst he maintains his current medication, and continues to see his treating Psychologist, and is monitored by his treating General Practitioner.
6. Dr Fisher went on to recommend that he also have a treating Psychiatrist, and explained: The nature of the anxiety and Major Depressive Disorder is that they are likely to show a pattern of recurrence, but the likelihood of relapse can be markedly reduced by taking prophylactic antidepressant medication, and applying cognitive behavioural techniques to manage stress more effectively.
7. As to his general competence to practise medicine, Dr Fisher considered that '[a]s he presented to me at consultation', he was competent. In that regard he noted that there was no evidence of any complaint from his patients or his colleagues over his clinical practice. He suggested that he be placed on the Impaired Registrants Program of the Medical Council, and be allowed to practise under conditions that entailed seeing a psychiatrist, having regular urine drug screening, and be barred from self-prescribing and prescribing for his family.

Return to Practice:

1. On 4 July 2014, while Dr Fisher's assessment was pending, the practitioner applied for a review of the Council's decision to suspend him. A Council Panel heard the application on 2 September 2014. The practitioner participated. It took into account Dr Fisher's report and other material.
2. On behalf of the Council, the Panel decided to set aside the suspension, and permitted the practitioner to return to practice subject to strict conditions (see ss 150A(3)(b) and 150(1)(b) of the National Law). He was not permitted to practise as a sole practitioner. He was required to practise as part of a group practice under supervision. The Council imposed private health conditions on his registration similar to those recommended by Dr Fisher.
3. He was banned from prescribing for himself or for his family members. He was banned from self-administering any Schedule 4D or 8 drug, or any narcotic derivative, non-prescription compound analgesic or cold medication, unless prescribed by his treating practitioner. If he was prescribed any of these drugs he was required to notify the Council-appointed psychiatrist and the Council. He was required to undertake regular urine drug testing and CDT testing (Carbohydrate-deficient transferrin - a blood test used to detect regular heavy alcohol consumption). He was required to attend on a general practitioner of his choice, a psychiatrist of his choice and a psychologist of his choice for treatment as directed by them. He was required to attend on the Council appointed psychiatrist (Dr Fisher) and present for a review interview in 3 months or as directed by the Council.
4. These orders took effect on 23 September 2014.

Variation of Conditions:

1. On 17 June 2015, an Impaired Registrants Panel (IRP) conducted a review of the practitioner's case. It concluded that he suffered from an impairment as defined in the National Law, basing their opinion on the oral and documentary evidence available to them and the opinion expressed by Dr Fisher. It concluded that he should be permitted to continue to practise. The Panel considered that most of the present conditions should continue to apply. There were two notable variations. He was now permitted to work in periods on a Saturday and Sunday in the group practice without another practitioner being on site. The requirement to attend on a psychologist of choice was removed. The practitioner voluntarily consented to the conditions, as revised. They appear at tab 23 of the HCCC's bundle of evidence. They became the new operative conditions replacing the conditions issued dated 23 September 2015. (In these proceedings, the HCCC's Application refers to the earlier conditions as 'the s 150A conditions', and the later conditions as the 'IRP conditions').

Second Suspension:

1. On 13 July 2015 the PSU reported that on 30 January 2015 the practitioner had resumed self-prescribing medications, and had done so frequently since that time. The medications included Pseudoephedrine, Zolpidem and Codeine. The PSU investigation also found evidence of other breaches of the private health conditions that had been placed on his registration following the lifting of the first suspension.
2. The Council summoned him to a new s 150 inquiry before a Panel of delegates. The Panel convened on 4 August 2015. The practitioner appeared and frankly acknowledged that he had resumed self-prescribing. The Panel canvassed with him its concerns over his apparent lack of regular provision of the urine drug tests and blood tests, noting a number of failures to abide by the timetable set by the conditions. The Panel questioned the practitioner over his failure to inform Dr Fisher as the Council-appointed psychiatrist of his resumption of self-prescribing. The Panel also noted that he not yet complied with the condition requiring him to obtain treatment from a psychiatrist of choice.
3. The practitioner referred in the course of the interview to a number of personal and financial stresses in his life (especially those brought on by the decision to expand the practice), his difficulties in relation to the excessive consumption of alcohol and his difficulties of a mental health kind. He acknowledged the wrongness of his conduct.
4. The Panel canvassed with him his current level of consumption of alcohol. He conceded that he had had an issue with alcohol dependence in the past. He stated there had been times when he had been abstinent for significant periods. He acknowledged that his alcohol consumption had again increased substantially in recent times. He indicated he was prepared to enter again into an abstinence program.
5. The Panel expressed their appreciation to the practitioner for having been 'up-front and honest' in his responses, and for his 'level of openness and honesty'.
6. In their decision of 21 August 2015 the Panel found that the practitioner suffered from an impairment within the meaning of the National Law. It decided given the 'extreme nature of the breaches of his conditions and the associated public interest considerations' that it was appropriate to suspend his registration. He has remained suspended since that time ('the second suspension').
7. The Council referred the additional matters raised by its further inquiry to the HCCC to include in its investigation. The HCCC's investigation gave rise to the Disciplinary Application now before the Tribunal.

The Disciplinary Application

1. Section 144 of the National Law provides: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) Lack of competence A complaint the practitioner is not competent to practise the practitioner's profession. (d) Impairment A complaint the practitioner has an impairment. (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.
2. Complaint 1 deals with conduct that predated his first suspension. The allegations span the years 2002 to 2013.
3. The first part of the Complaint deals with abuse of his prescription authority. It alleges that he engaged in 648 instances of self-prescription between October 2011 and October 2013 (Particular (P) 1), that on 4 September 2013 he used a prescription written in Patient A's name to obtain Pethidine Polyamp 100mg x 10 for his own use (P2) and that he wrote prescriptions for Panadeine Forte in the name of family members for his own use in the period 2002 to 2013 (P3).
4. The second part of the Complaint 1 deals with breach of the standards preventing doctors from treating family members. They refer to events of prescription or treatment affecting different family members in the periods September 2009 to October 2013 (P4), 2002 to 2013 (P5) and after April 2006 and between June 2012 and October 2013 (P6).
5. The Complaint seeks a finding of unsatisfactory professional conduct.
6. Complaint 2 refers to the practitioner's numerous breaches of the conditions under which he was permitted to return to practice in the period September 2014-August 2015. A finding of unsatisfactory professional conduct is sought.
7. Complaint 3 alleges that the practitioner suffers from an impairment within the meaning of s 5 of the National Law, which detrimentally affects, or is likely to detrimentally affect, the practitioner's capacity to practise the profession of medicine.
8. The complaint, as filed, set out four conditions from which it was said the practitioner suffered, each of which separately or together justified a finding that he was impaired within the meaning of the National Law. They were particularised as: 1. opioid dependence disorder 2. a dependence on Valium 3. a major depressive disorder 4. generalised anxiety and panic disorder.
9. Section 139(a) provides 139 Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person - (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession;
10. Complaint 4 asserted 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.
11. As noted above, s 144 (e) of the National Law allows a complaint to be made about a registered health practitioner on the basis that he or she 'is otherwise not a suitable person to hold registration in the practitioner's profession'. The Tribunal may suspend or cancel a practitioner's registration if he is not a 'suitable person' for registration in the profession: s 149C(1)(c), National Law.
12. Complaint 5 is that the practitioner Is not a suitable person to hold registration as a medical practitioner within the meaning of s 144 of the National Law.
13. As originally filed, the Complaint set out the following particulars in relation to his lack of suitability: 1. On 8 November 2013 the practitioner inappropriately self-prescribed tramadol hydrochloride 200mg (x20 tablets) at a time when his registration was suspended. 2. Particulars of Complaint Three are repeated and relied upon. 3. Particulars 1, 2 and 3 of Complaint One are repeated and relied upon. 4. Particulars of Complaint Two are repeated and relied upon.
14. Complaint 6 is that the practitioner's unsatisfactory professional conduct is of a sufficiently serious nature to justify a finding of professional misconduct, and might warrant suspension or cancellation of his registration.
15. The Application seeks appropriate disciplinary orders, and the costs of the HCCC.

Reply

1. In his Reply to the Application filed 24 October 2017, the practitioner admitted all of the particulars of Complaints 1 and 2. He accepted that he suffered from an impairment (Complaint 3), and that, because of it, he was not currently competent to practise within the meaning of s 139(a) of the National Law (Complaint 4).
2. He did not admit that his registration should be revoked on the basis that he was not a suitable person to hold a registration (Complaint 5). He relied on the report of Dr Farnbach (his treating psychiatrist) dated 14 October 2017.
3. He did not respond to Complaint 6. To reiterate Complaint 6 asserts that the unsatisfactory professional conduct to which Complaints 1 and 2 refer are of sufficient seriousness to warrant an order of suspension or cancellation of the practitioner's registration.

The Hearing

1. As noted in the course of our outline of the background to these proceedings, the practitioner did appear before the three Council inquiries, and did respond in writing to the HCCC's investigation. He has not participated actively in the proceedings before the Tribunal. Prior to the date of hearing (12 December 2017), his participation had been confined to the filing of two documents: his Reply to the Application (dated 23 October 2017) and a report from Dr Peter Farnbach, his treating psychiatrist (14 October 2017).
2. He did not attend the hearing. At the commencement of the hearing, Ms Burke handed up a further report from Dr Farnbach (dated 7 December 2017, in the form of an email). Dr Farnbach expressed the opinion that while the practitioner was quite capable of providing instructions, he was unable to attend the hearing either in person or by video link due to the deleterious effect that would have on his mental health, in particular an unacceptably high risk of relapse in the degree of his bipolar disorder.
3. The following documentary material was before the Tribunal.

HCCC:

1. Five volumes of evidence in support of the Application, mainly comprising the pharmaceutical and Medicare documentation in support of the allegations of self-prescription, and the personal use of prescriptions issued in the names of family members. On the issue of the mental and physical health of the practitioner, the material included several reports and related correspondence from the Council-appointed psychiatrist, Dr Fisher, in the period from 21 July 2014 to October 2017. The material included the practitioner's correspondence with the HCCC between 2014 and 2016 and his submissions. The material (volume 2 tabs 45-50) also included material relating to an 'earlier complaint' made in 2014, but no emphasis was given to that at the hearing. The material included relevant ethical guidelines, including in relation to self-treatment and treating relatives. The final two volumes, tendered at hearing without objection, comprised medical records produced under summons from a doctor and two hospitals who had treated the practitioner.

Practitioner:

1. The Reply to the Application, filed 24 October 2017, to which we have already referred; and the two reports from his treating psychiatrist, Dr Farnbach, to which we have already referred.
2. There were no written submissions from either party in advance of the hearing.
3. The Tribunal heard oral evidence from Dr Farnbach and Dr Fisher.
4. The Tribunal Panel included two professional members: Dr G Smith, an addiction psychiatrist; and Dr R Chapman-Konarska, a general practitioner.

Amended Complaint

1. The HCCC applied for leave to substitute an Amended Complaint for the Complaint as originally filed.
2. The Amended Complaint included corrections of a minor kind to the primary text of Complaints 4, 5 and 6. Ms Burke did not oppose them.
3. There were two proposed amendments of a substantive kind. The first concerned Complaint 3 (the complaint of impairment).
4. As noted above, the complaint as filed referred to four possible types of impairment affecting the practitioner's capacity to practise medicine. The Amended Complaint now sought to add a fifth possibility, drawn from the recent opinion of Dr Farnbach, i.e.: 5. The practitioner suffers from bipolar disorder.
5. Ms Burke indicated that the practitioner did not oppose the amendment.
6. We gave leave for the Complaint to be amended in the above respects.
7. The one amendment about which there was disagreement between the parties related to a proposed change to the particulars of Complaint 5 (the complaint that the practitioner was not a suitable person to continue to hold registration).
8. As filed, Complaint 5, it will be recalled, had four Particulars. Particular 1 referred to an event of self-prescription (of Tramadol hydrochloride) that occurred 2 days after the commencement of the first suspension. Particular 2 repeated and relied upon the particulars of the complaint of impairment. Particular 4 repeated and relied upon the particulars of Complaint 2 (the breaches of the conditions imposed on return to practice after the first suspension).
9. The remaining particular, P3, repeated and relied upon the first three particulars of Complaint 1 (conduct in the period 2002 to 2013 leading to the first suspension). Those particulars related to the practitioner's abuse of his prescription authority. The amendment now proposed sought to add to P3 the further particulars set out in Complaint 1, i.e. Ps 4-6 which concerned treatment of family members.
10. Ms Burke noted that the practitioner had been deprived of a practical opportunity to consider and respond to this late extension of the scope of Complaint 5. We accepted that given the practitioner's absence from the proceedings there was a difficulty of this kind. However we decided to allow the amendment to proceed for the moment. In that regard, we noted that the practitioner has admitted from the outset the conduct to which these particulars refer. We would have regard to any submissions made at the end of the proceedings as to the weight to be given to this matter in connection with the issue of suitability.

Consideration of Complaints

1. As noted earlier the practitioner did not dispute any of the particulars relied upon in support of Complaints 1 and 2. We will deal relatively briefly with this aspect of the case.

Complaints 1 and 2

1. There was no dispute that, on the basis of the practitioner's admissions and the evidence compiled by the HCCC, that the practitioner has engaged in unsatisfactory professional conduct over a considerable period of time (some instances dating as far back as 2002). His written admissions have been unqualified. We do however lack any written statement or affidavit from him containing a broader personal explanation. In that regard we have had regard to the information found in the psychiatric reports, and in the HCCC's material, especially his evidence to the various inquiries.
2. He routinely self-prescribed over many years. Complaint 1 referred to 648 instances of self-prescription in the years 2011 to 2013 as well as more than 100 prescriptions ostensibly directed to the needs of family members which he used personally. His self-administration was of a habitual character. In our opinion, his conduct shows that at an early stage he had lost any perspective as to the unethical nature of the conduct, its wrongness, the damage it did to the public standing of the profession, and the harm and difficulty it caused for the maintenance of co-operative and professional relations between medical practices and pharmacies.
3. The second part of Complaint 1 itemised instances of inappropriate treatment of family members. He engaged in providing medical care and treatment to one family member between September 2009 and October 2013, and in the case of another family member did the same from 2002 to February 2013, complicated in the years October 2008 and March 2013 by the fact that that family member had an independent therapeutic relationship with a general practitioner.
4. In his explanations to the earlier inquiries (those of September 2014 (the Council's s 150A inquiry), June 2015 (the IRP inquiry) and August 2015 (the Council's second s 150 inquiry)), and in correspondence with the HCCC, he sought to justify his conduct in treating his family members on the basis that conduct of this kind by practitioners, especially in rural locations, had not been uncommon in the past. The practitioner did recognise in his responses to the first inquiry that ethical guidelines now governed conduct of this kind.
5. As noted in the Medical Board Guideline (issued c 2009, rev ed 16/5/16. at tab 76 of the HCCC's material): In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient.
6. Importantly, on 4 October 2011 the Medical Council issued a more detailed statement in relation to self-treatment and treating relatives (tab 77, rev ed 4/10/16). It dealt with the special factors that might justify treatment of a relative as an exception to the general rule. There is no suggestion in this case that the practitioner's conduct fell within those special factors, such as remoteness from other general practitioners or emergency situations. The practitioner practised in a town with other practitioners, and a relatively short drive from nearby larger towns.
7. Complaint 2 dealt with his breaches of the conditions under which he was permitted to resume practice in September 2014, pending any disciplinary proceedings. The breaches were numerous and affected all of the key conditions. They are enumerated in the particulars to Complaint 2, and all have been admitted.
8. This conduct points to a deep-seated inability to adjust to the new discipline to which he had submitted and to honour the professional commitments he had given. There was minimal adherence to the conditions. He did little to observe the critical conditions under which he was allowed to return to practice, the personal health conditions (in particular, those related to regular urine and blood testing and psychiatric treatment). He appears only to have taken seriously the practice conditions, which of their nature needed to be known to his colleagues and meant that he was subject to their oversight.

Assessment:

1. The conduct the subject of Complaint 1, and admitted by the practitioner, clearly falls within the primary definition of unsatisfactory professional conduct for the purposes of the National Law, s 139B(1): (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 the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
2. It is plain that the practitioner routinely failed to display the judgment expected of a practitioner of his experience. He habitually broke the standards that bound him in relation to self-prescription. He abused his powers thereby fostering a dependence on pain-relieving drugs. In addition, he transgressed ethical standards relating to the care and treatment of family members. Unethical conduct is also encompassed by s 139B(1), i.e.: (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
3. The breaches of the conditions governing his return to practice were serious and numerous. They clearly amounted to unsatisfactory professional conduct within the meaning of s 139B(1)(a) and also within the meaning of s 139B(1)(c), i.e.: (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; or (ii) an undertaking given to a National Board.

Complaints 3, 4 and 5 (Impairment, Competence and Suitability)

1. The evidence given by Dr Fisher and Dr Farnbach at hearing concentrated on the issues of impairment (Complaint 3) and competence (Complaints 4). Dr Farnbach's evidence also canvassed the appropriate disciplinary order. Their evidence did not address the complaint of lack of suitability (Complaint 5).
2. At present, the practitioner appears to be in active treating relationships on two fronts - Dr Farnbach is his regular treating psychiatrist and Dr Tillett has been his treating general practitioner, now for many years. The HCCC material also included reports from treatment provided at earlier times by various psychologists.
3. Impairment: Section 5 of the National Law defines an 'impairment' relevantly as follows: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - (a) for a registered health practitioner …, the person's capacity to practise the profession.
4. It does not follow that an impairment that 'affects or is likely to detrimentally affect' a person's capacity to practise medicine should necessarily result in the practitioner not being permitted to continue to practise in any away or necessarily result in deregistration. See further, Lindsay v Health Care Complaints Commission [2010] NSWCA 194 per Sackville AJA at [168]-[169] (Young, Giles JJA agreeing). A health practitioner with an impairment in the above sense may be able to continue in practice, subject to a management plan that satisfactorily contains any risk to the safety and welfare of the public. The medical profession's impaired registrant procedures play an important role in that regard.
5. In this case the parties agreed that the practitioner presently suffered from an impairment within the meaning of the National Law, and that it is of such a degree that he is not presently competent to practise. We agree. There were differences between the parties over how the impairment might best be described.
6. Dr Farnbach has been the practitioner's treating psychiatrist since February 2017. Dr Fisher's professional connection with the practitioner extends back to June 2014. His has not been a treating relationship but one of assessment,
7. 2017 Dr Farnbach said that the practitioner had suffered from: and at some stages oversight and monitoring.
8. Dr Farnbach was firmly of the view that the practitioner had suffered from bipolar disorder since adolescence. He described the condition as one of 'bipolar affective disorder'. In his report dated 24 October: [S]ymptoms of bipolar disorder since adolescence - he has very clearly had mood episodes and periods of quite distinct hypomania, which were unfortunately never diagnosed as bipolar.
9. He considered that the illness had become progressively worse. He referred to the practitioner's history of multiple admissions since early 2016, initially into care at the Epworth Hospital and later South-Eastern Hospital (both in Melbourne), the hospitals where Dr Farnbach worked at the relevant times. He stated that: His condition has come under a substantial degree of control, however, he is still prone to depressive episodes and significant anxiety.
10. Dr Farnbach informed us that the practitioner has been receiving TMS (Transcranial Magnetic Stimulation, a treatment for depressive symptoms) since February 2017, on a monthly to six-weekly basis, and the treatment is for the indefinite future at this stage. He is also having treatment with mood stabilising medications. He agreed that the practitioner did have an anxiety disorder, but as noted above he considered that much of his behaviour derived from a longstanding bipolar disorder. Dr Farnbach said that the practitioner had had episodes of mood disorder that in his opinion were not attributable to alcohol, drugs or other metabolic causes.
11. Dr Fisher's reports in his capacity as the Council-appointed psychiatrist are found in the HCCC's bundle, and his latest reports prepared for these proceedings are at Tabs 22A and 22B of the HCCC's bundle. They include a report dated 11 December 2017 (three days before the hearing, Tab 22B).
12. Dr Fisher expressed caution in his latest reports regarding the diagnosis of bipolar affective disorder. He differentiated an impairment of that degree from his preferred assessment, i.e. that the practitioner suffers from opioid and benzodiazepine dependence, and major depressive disorder with marked anxiety. He preferred, as we understood his opinion, the descriptions of the nature of his impairment given at particulars 1 to 4 of Complaint 3, over the description added by particular 5 deriving from Dr Farnbach's opinion.
13. Dr Fisher elaborated on his view in evidence. He explained that there was, for him, a lack of sufficient illustrative evidence in the written reports of Dr Farnbach to persuade him that the practitioner had experienced symptoms consistent with hypomania, such that he (Dr Fisher) might confidently conclude that the practitioner suffers from, or is likely to suffer from, bipolar disorder. He did not wish to exclude the possibility outright. It may be that illustrations exist, but he was not aware of them. He added that he had not encountered any information or any behaviour from the practitioner during their meetings in the period 2014 to the present which might suggest he had had episodes of hypomania. He also referred in his report and in his evidence to the relative gravity of an assessment of bipolar disorder.
14. As noted in Health Care Complaints Commission v Street [2014] NSWCATOD 124 at [62]: It is necessary to identify a present impairment to find the complaint proven (see Tung v Health Care Complaints Commission [2011] NSWCA 219 at [58], [60]). It is not necessary to define the condition suffered with a high level of precision, or in terms of narrow diagnostic labels (Grant v Health Care Complaints Commission [2003] NSWCA 73 at [11]).
15. We will not pursue this area of difference between the experts any further.
16. We are satisfied that the practitioner has a current impairment within the meaning of the National Law. He is, at the least, suffering from severe depression (see Dr Fisher's opinion). Though he may be, as reported by Dr Farnbach, not consuming alcohol or abusing prescription and scheduled drugs at present, we are satisfied that he has persisting vulnerabilities to opioid dependence, dependence on Diazepam and has generalised anxiety and panic disorder.
17. We are not inclined on the material before us at this stage to go as far as finding that he suffers from bipolar disorder.

Competence:

1. The Tribunal may suspend or cancel the registration of a practitioner if it is satisfied that 'the practitioner is not competent to practise the practitioner's profession': s 149C(1)(a).
2. 'Competence' is a term commonly used in contexts such as the present to refer to an individual's ability to carry out satisfactorily the special skills required in the particular profession. This case does not raise directly issues of that kind. There are, for example, no patient complaints.
3. We are concerned in this case primarily with the existence of factors in the practitioner's personal circumstances (his physical and mental health) that bear on his continued competence to practise. The parties agreed that, because of these factors, the practitioner was not presently competent to practise medicine. We agree.
4. The registration and licensing system has at its core the proposition that the registered person be presently competent to carry out the skills of the profession and, in addition, to abide by the obligations of an ethical or regulatory nature to which he or she is bound. In this instance there have been manifest failures by the practitioner over many years to adhere to obligations of that kind. Complaint 1 itemises failures going back as far as 2002. Complaint 2 itemises his failures to comply with the terms under which he was allowed to resume practice in 2014. Most importantly, his present state of impairment is such that there is an unacceptable risk that he may conduct himself in his dealings with patients in a way that might cause them harm, or he might engage in self-harm.
5. We are satisfied that Complaints 3 and 4 are established.

Suitability:

1. The practitioner does not accept that he should be found not suitable to hold a registration (see Reply).
2. At hearing Mr Maybury for the HCCC referred to the following matters that in his submission justified a finding that the practitioner was not a suitable person to continue to hold registration: the systemic nature of the practitioner's misconduct
3. the level of deceitfulness it involved.
4. the practitioner's failure to proffer any explanation to the Tribunal for his conduct, by way of at least written evidence such as an affidavit.
5. He questioned the adequacy of the basis for the practitioner's non-appearance at the Tribunal in circumstances where his treating psychiatrist (and counsel who appeared on his behalf) acknowledged his continued ability to give instructions.
6. In her closing submissions, Ms Burke indicated that her client did not concede the allegations made against him by Mr Maybury, which in essence were to effect that he was not fit to be a member of the profession because of the moral turpitude said to be reflected in misleading statements he had made to functionaries such as the review Panels and the Council-appointed psychiatrist, and his behaviour generally in relation to self-prescribing and using family members' names in prescriptions not intended for their use.
7. In our view, special care must be taken in laying a charge that a practitioner is no longer a 'suitable' person to practise a profession. In our view, this cautious view is reflected in the way this ground for complaint is addressed in the National Law.
8. There are four primary categories of permitted complaint in s 144: 1. criminal conviction or criminal finding, 2. unsatisfactory professional conduct or professional misconduct, 3. lack of competence and 4. impairment. The section then lists as its final complaint category 1. 'suitable person' and allows for the making of a complaint that the practitioner is 'otherwise not a suitable person to hold registration in the practitioner's profession'. As we read s 144, it is at least arguable that the suitability ground is there as a fail-safe to deal with cases of a serious kind where the available evidence might not support findings under the usual headings sufficient to justify an order for removal from the practising profession.
9. The adjective 'suitable' is, of its nature, highly inexact in its meaning. It is connected with the family of words that include the verb 'to suit' and the noun 'suitability'. The Macquarie Dictionary (2004 ed.) lists 16 meanings of the verb 'to suit'. The final meanings in the list are of relevance to the present context. They capture the vagueness and elasticity inherent in the word suitable. 'To suit' is defined, for example, as 'to make appropriate', 'to be suitable, agreeable or acceptable'. The definition of 'suitable' gives meanings such as 'appropriate, fitting, becoming'.
10. It is inherent in a finding that a person is not a 'suitable person to hold registration' that he or she must be removed from the profession. What we think is contemplated by this provision is an inquiry into the person's fitness in the sense of an inquiry going to the person's character and integrity. It would, we think, be necessary to demonstrate a fundamental deficiency of character so serious as to warrant in its own right exclusion from the profession.
11. In our view, introducing into disciplinary cases a separate complaint of lack of suitability may tend to stand in the way of appropriate resolution of cases where there is some preparedness to co-operate with and not impede the process, as has been seen here in the early and frank admissions made in this case from an early stage.
12. Practitioners, we acknowledge, have a duty to co-operate with and respond to disciplinary investigations and disciplinary proceedings brought against them. But it is not unknown for practitioners to disengage from the process or only give limited responses, especially in cases where there is evidence of mental ill health, and conditions such as depression. In our view, it will ordinarily be sufficient to deal with omissions of this kind through the spectrum of the professional misconduct/unsatisfactory professional conduct inquiry, and in the consideration of the appropriate disciplinary order.
13. We accept that there may be, in some cases, behaviours found proven as instances of unsatisfactory professional conduct or professional misconduct that do have relevance to an assessment of 'suitability' (for example, findings of falsification, dishonesty, sexual abuse).
14. Similarly, we accept that the complaints of misconduct found proven in this case (i.e. Complaints 1 and 2, referred to in Particulars 1 and 2 of Complaint 5) might be seen as raising issues as to the character and integrity of the practitioner - the habitual nature of the offending, the deviousness involved in using prescriptions written in the names of family members, and the relapses after the suspension was lifted.
15. However, we doubt that it would ever be appropriate to rely on impairment as a ground for a finding that a person is not a 'suitable' person, as P3 of Complaint 5 seeks to do in this case. If we are correct in our view that 'suitability' has at its heart issues of character and integrity, and suchlike, then we doubt the appropriateness of treating a type of disability (albeit in some instances one deriving from self-abuse or addiction) as an issue going to character and integrity. As we see it, the public protection concern raised by proof of an impairment is the degree to which it affects the capacity of a practitioner to practise medicine in a way that meets the basic standard of competence expected of practitioners. This focus will, we think, usually be sufficient to dispose of an impairment case.
16. So far as the present Complaint is concerned, we consider that the evidence given in relation to impairment provided a possible and likely explanation for much of the conduct in which the practitioner engaged, in particular his opioid dependence and its effects, and the dissembling, deceit and breaches which followed. We are not satisfied that the findings we have entered in respect of Complaints 1 and 2 justify a further finding that the practitioner is to be regarded as a person not suitable to hold registration. Moreover, the evidence is that he is now actively engaged in a treatment program under Dr Farnbach that is achieving positive advances.
17. The Complaint has one remaining Particular (P1), and it refers to conduct said to have occurred on 8 November 2013, two days after he was suspended from practice. To reiterate, it asserts: On 8 November 2013 the practitioner inappropriately self-prescribed Tramadol hydrochloride 200mg (x20 tablets) at a time when his registration was suspended.
18. There were no written submissions in this matter (from either party) prior to hearing. We simply state that as a matter of fact, not as a criticism of any kind. There were no directions, for example, requiring written submissions. There were no oral submissions at hearing that sought to explain to us why this Particular should, assuming it were found proven, warrant a finding that the practitioner was not suitable to continue to be a member of the profession.
19. We are not inclined on the basis of the material before us to enter, what we see as the grave finding, that the practitioner is no longer a suitable person to hold registration in the profession.
20. We dismiss Complaint 5.

Assessment of Gravity of the Proven Misconduct (Complaint 6)

1. This issue is the subject of Complaint 6.
2. Section 139E provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration
3. The misconduct is to be assessed in an objective way. In our view, the assessment of the gravity of the conduct does not require any elaborate analysis in this case.
4. The practitioner engaged in numerous, repeated breaches over many years of the prohibitions on self-prescribing, and frequently falsified prescriptions to achieve that end. Each action was capable in its own right of being regarded as unsatisfactory professional conduct. His failure to adhere to the private health conditions in the period September 2014 to August 2015 were pervasive. He took no steps to comply with some of the conditions and did not strictly comply with any of them. He failed to report his failures to the monitoring body or to the Council appointed psychiatrist.
5. In our view these matters are more than sufficient to justify a finding of professional misconduct within the meaning of s 139E(a) of the National Law.

Findings

1. We find proven Complaints 1, 2, 3 and 4.
2. We find the practitioner guilty of professional misconduct.

Proposed Orders

1. As noted earlier, the HCCC submitted that the appropriate orders in this case were: cancellation of the practitioner's registration, a prohibition on any application for review of the order for at least two years (and at most four years), and an order for its costs.
2. Ms Burke emphasised that the practitioner had in his Reply admitted the conduct the subject of Complaints 1 and 2, and did not cavil with a finding of unsatisfactory professional conduct. The pratitioner acknowledged that he suffered from an impairment, and that Complaint 3 was therefore established. He had also accepted that he was not presently competent to practise (Complaint 4).
3. As to the appropriate order in the circumstances, Ms Burke pointed to the practitioner's substantial career in practice over nearly 30 years, almost entirely in rural Australia. She noted that there was no history before the Tribunal of any complaint by any patient in that time.
4. She advised us that the practitioner accepted that he was not presently fit to resume practice. However, he submitted that an order continuing his suspension was sufficient to protect the public. He was receiving regular treatment from his treating psychiatrist, Dr Farnbach. Dr Farnbach considered that the practitioner's prospects of a recovery sufficient to permit return to practice in the medium term were strong.
5. At hearing, Ms Burke suggested that any order continuing the suspension perhaps be the subject of a self-executing order enabling it to be converted to an order for deregistration if he does not succeed in having it lifted within a prescribed period such as 18 months or two years.
6. She submitted that this was a fair way to resolve this case.
7. Mr Maybury for the HCCC opposed an outcome of this kind, submitting that the Tribunal must reach a conclusion as to the practitioner's present fitness to continue in practice, and if he is not fit, he should be deregistered.
8. The Tribunal invited the practitioner to file and serve any examples of orders that had been made of the kind now proposed (suspension subject to a self-executing order of cancellation if suspension not lifted within a prescribed period), and gave the HCCC a period in which to respond to any filing of that kind.

Written Submissions on Proposed Orders

1. On 14 December 2017, Ms Burke filed the orders proposed by the practitioner, along with citations of recent cases seen as supporting such an approach. We will not canvass those precedents in these reasons.
2. During our hearing, Ms Burke had proposed a suspension order subject to an expiry date, giving way, if not lifted at the date of expiry to an order of cancellation. The value of that approach from the viewpoint of a practitioner is that if the suspension is lifted prior to its expiry, the practitioner can resume practice immediately. In her written submission she proposed a suspension with an expiry date giving way to a prohibition order.
3. The proposed orders were expressed as follows: 1. [The practitioner's] registration on the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) remains suspended for a further period of 2 years, pursuant to section 149C(1) of the National Law. 2. Pursuant to section 149C(5) of the National Law, on expiration of his suspension, [the practitioner] is prohibited from providing health services, as medical practitioner ('prohibition order') until such time as [the practitioner] applies for review of the prohibition order, pursuant to s 163A of the National Law and that review is determined under section 163B of the National Law.

Possible Continuation of the Suspension Order:

1. The main evidence in support of the proposition that a continuation of the suspension order might be appropriate was given by Dr Farnbach.
2. In Dr Farnbach's opinion, the practitioner should at some point in the near future be sufficiently recovered to permit him to return, on conditions, to general practice. In his opinion, those conditions would confine him to work in a group practice, under appropriate supervision, and not full-time. He contemplated a staged re-entry to practice with a cap on the hours that might be worked, not exceeding a half-time per week load.
3. On 18 December 2017 the HCCC replied to the practitioner's proposed orders and associated material.
4. The HCCC's submissions noted that the orders as proposed differed in approach from the form of order canvassed in closing submissions, in that they did not refer directly to deregistration. Instead the second order sought to utilise the mechanism of a prohibition order to achieve the end of the practitioner's removal from practice if he did not have the suspension lifted within the prescribed period (proposed to be two years). The submissions argued, in essence, that a prohibition order could not, or should not, be used in this way. The HCCC maintained its position that the appropriate orders in this case were those it had proposed.

Consideration

1. Our order must be one that properly serves the end of public protection. In that regard it might be said that an order for continuing suspension (with an expiry date of the kind canvassed by Ms Burke, triggering deregistration) provides a sufficient protection, in that the health and safety of individuals is not placed at risk. The practitioner cannot practise; therefore no patient runs the risk of being harmed.
2. The central consideration is what is in the best interests of the protection of the safety and welfare of the community. Those interests include the maintenance of disciplinary standards.
3. Our order should respond to the gravity of the offences and be proportional in that sense. It should be at a level which will deter other members of the profession from engaging in similar conduct. Disciplinary orders have an educative role, especially for members of the regulated occupation or profession. Equally, there is a place for the making of orders that may be less harsh than the usual. A practitioner may have shown remorse, and taken steps, especially during the period of any s 150 suspension, to rehabilitate which justify such a course.
4. As noted by Basten JA (Leeming, Payne JJA agreeing) in Chen v Health Care Complaints Commission [2017] NSWCA 186 (31 July 2017): 21. …[I]n determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it.
5. We accept in this instance that the practitioner has begun to take steps to address his opioid dependence, and his mental health and other personality difficulties. This is a positive development. Dr Farnbach states that he has stopped taking any drugs other than those prescribed by his GP and Dr Farnbach, and he has stopped consuming alcohol.
6. The difficulty we have in this case is that we have little information from the practitioner. The practitioner has participated minimally in the Tribunal's processes. We have not had the usual opportunity to hear directly from the practitioner and to ask him questions.
7. As a result, we are not in a position to form any confident view as to the appropriateness of an order involving continued suspension.
8. In our view, the usual order in a case of this kind would be one of deregistration. The misconduct the subject of Complaint 1 was repeated and occurred over a number of years. Self-prescription enables the prescriber to be a judge in his or own cause, thereby undermining the proper practice of medicine. A doctor should be an exemplar of the proper practice of medicine. The decision to prescribe a medication must be based on a professional assessment made by a doctor independent of the patient. In this case the self-prescribing took two forms: prescriptions in the name of the practitioner; and prescriptions ostensibly for family members, but intended for the personal use of the practitioner.
9. He repeated his previous misconduct when he returned to practice following the lifting of the suspension. He thereby specifically breached the restrictions imposed on his registration. He also breached them in a number of other ways as set out in the particulars to Complaint 2. Most importantly he failed to comply strictly with a number of the health conditions and the reporting conditions. These were grave breaches of the trust that had been placed in him by the Medical Council in allowing him to resume practice.
10. His breaches were of a degree, where, in our view, the proper order is one of cancellation of his registration.
11. For the reasons given, we have not accepted Ms Burke's primary submission (continuation of the suspension order).
12. Had we accepted Ms Burke's primary submission, we would not have been inclined to allow a prohibition order to become the default order at the end of the term. As we understand the scheme of the legislation, a prohibition order is an order of an ancillary kind in disciplinary proceedings. It would normally be sought by the applicant and be used to deal with any risks that the practitioner presents to the health and safety of the public that cannot be adequately served by an order for cancellation of registration. The key consideration in deciding whether to issue a prohibition order is whether the person who is the subject of an order of suspension or cancellation 'poses a substantial risk to health of members of the public' (s 149C(5)). There needs to be evidence that reasonably suggests that the practitioner cannot or should not be trusted to observe the suspension or cancellation order giving rise to a 'substantial risk'. This is not a case of that kind.

Bar on Application for Reregistration

1. If the practitioner is to return to the profession, he will as a result of our order be required to undertake the process of applying for reregistration.
2. The HCCC submitted that we should exercise our power to fix a period during which no application for reregistration is to be made. The HCCC suggested the bar be between two and four years.
3. As also noted by Basten JA in Chen (Leeming, Payne JJA agreeing): 22. The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. ...
4. The practitioner has been suspended now for over two years. If we accept the HCCC's submission, the practitioner will have been out of practice for between four and six years by the time of any application for reregistration. In our experience it takes the best part of a year for an application to be processed, heard and decided. This would as a practical matter mean that he would not be likely to receive any final determination of the application for five to seven years.
5. The practitioner is receiving regular treatment from Dr Farnbach. As we have noted, Dr Farnbach has an optimistic view of the practitioner's chances of recovery and ability to return to practice under strict conditions.
6. We do not wish to impose a bar of the degree sought by the HCCC as that may place at risk his continued participation in a recovery program and may unduly constrain his ability to apply for registration at an appropriate point.
7. In these circumstances, a one year bar is sufficient we think to address the public interest in seeking to ensure that the practitioner remains out of practice for an appropriate time.

Costs

1. Clause 13 [NSW] of Sch 5D of the National Law provides relevantly: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. … (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013 .
2. The HCCC has applied for its costs of the proceedings. It has succeeded in its application. The usual order will be made.

Order The Tribunal finds the respondent guilty of professional misconduct. The Tribunal orders that:

1. The respondent's registration be cancelled, as from the date of publication of this decision.
2. The respondent be prohibited for one year from applying for reregistration.
3. The respondent pay the applicant's costs of these proceedings, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2018