Health Care Complaints Commission v Hanna

Health Care Complaints Commission v Hanna - [2024] NSWCATOD 26 - NSWCATOD 2023 case summary — Zoe

[8]

Complaint 5

The particulars of Complaint 5 are set out below. 1. The practitioner contravened condition 1 of his registration by providing dilute drug screening samples on the following dates: 1. 14 December 2021 2. 23 December 2021 3. 10 October 2022 4. 27 February 2023. 1. The practitioner contravened condition 1 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, on the following dates: 1. 25 January 2022 2. 27 January 2022 3. 12 December 2022. 1. On 7 February 2022 the practitioner contravened condition 1 of his registration in that he produced a result that was positive for the cocaine metabolite benzoylecgonine. 2. On 27 February 2023 the practitioner contravened condition 1 of his registration in that he produced a result that was positive for the cocaine metabolites benzoylecgonine and ecgonine methyl ester. 3. Between 23 November 2021 and 17 March 2023 the practitioner contravened condition 1 of his registration in that he displayed a pattern of behaviour that raises concerns about the participant's compliance with the Dental Council of NSW's Drug Screening Policy and Participant Procedure. That pattern of behaviour includes, but is not limited to, the following conduct: 1. the dilute samples listed in particular 1; 2. the absences listed in particular 2; 3. the positive result outlined in particular 3; 4. the positive result outlined in particular 4; 5. the following absences for which the practitioner provided the Council with medical certificates or an excuse relating to Covid-19 isolation: 1. 20 December 2021; 2. 5 January 2022; 3. 12 January 2022; 4. 28 February 2022; 1. the following urine drug screening results which detected cocaine or cocaine metabolites at levels below the reporting cut-off: 1. 21 January 2022 2. 3 February 2022; 3. 9 February 2022; 4. 14 June 2022; 5. 27 July 2022; 6. 10 October 2022; 7. 28 October 2022; 8. 2 November 2022; 9. 18 November 2022; 10. 22 November 2022; 11. 7 December 2022; 12. 14 December 2022; 13. 22 December 2022; 14. 10 January 2023; 15. 30 January 2023; 16. 23 February 2023; 17. 23 February 2023; 18. 16 March 2023; 19. 17 March 2023.
Dr Hanna admits particulars 3 and 4; denies particulars 1 and 5; and does not admit particular 2.

[10]

Policy documents

The particulars of the complaints against Dr Hanna are framed by reference to the conditions on his registration and a number of provisions of the Health Professional Councils Authority ("HPCA") documents.
The HPCA Drug Screening Policy dated 1 June 2018 provides as follows: "4.1 Compliance with this policy Participants must comply with all aspects of this policy … If a condition is inconsistent with this policy or procedure, the condition prevails. All aspects of screening, including how often participants must attend, will be overseen by the Council. Compliance will be monitored by our monitoring team. If a participant does not comply the Council may: • give the participant a warning and explain any other action the Council may take if they do not comply in the future • increase the frequency or length of drug screening • require that the participant attend an interview or hearing to consider the matter further • take immediate action, such as imposing more restrictive conditions (including a critical impairment condition) on or suspending the participant's registration and refer a complaint to the HCCC. • refer a complaint to the HCCC. 4.2 Non-compliance with drug screening Non-compliance with drug screening is any failure to follow the requirements of this policy, the Council's Participant procedure: drug screening, and any drug screening conditions on a participant's registration. If a participant does not comply, the Council will ask the participant for a written explanation, and may also ask the pathology provider for more information. The Council will then consider whether further action is required. In some cases the Council may take action without asking the participant for an explanation. Non-compliance with drug screening includes but is not limited to, the circumstances listed in the following table: (emphasis added) Screening type Circumstance • a positive result for a substance where there is no written confirmation from a treating practitioner that they advised, prescribed or administered that substance • the participant fails to commence screening within the require timeframe • the participant fails to attend for screening when required • the participant provides samples for screening outside of the approved collection and testing regimen All • the participant fails to complete request forms as required • the participant provides samples that do not meet the chain of custody • the participant uses, makes, alters or possesses an object or product to defraud a drug screening test • the provided sample is inadequate or unsuitable for testing • the participant fails to provide supporting information about any absences from screening within the required timeframe • a pattern of participant behaviour raises concerns about their compliance with this policy, the related procedure or related conditions

[11]

The HPCA Participant procedure: drug screening policy dated 1 June 2008 as reviewed on 1 June 2023 relevantly states: "Summary This procedure explains to NSW health professionals and students who have drug screening conditions imposed on their registration how to participate in drug screening. … 6.2 What to avoid … … Some food and drink Do not drink too much water before you attend for urine drug screening, as this can dilute your sample and cause an unsatisfactory result. … 7.1 Collection centres Council-approved collection centres You must attend a council-approved collection centre for screening. Contact your nominated collection centre to confirm their opening hours and the time you need to attend… 8.2 Positive or unsatisfactory results A urine drug screening result is positive if both of the following apply: Positive urine drug screening result • It shows your sample contains a substance listed in Appendix A • A treating practitioner has not confirmed they advised, prescribed or administered that substance. • In some cases you may be tested again to confirm the result…. A hair drug screening result is positive if both of the following apply: Positive hair drug screening result • It shows your sample contains a substance listed in Appendix A • A treating practitioner has not confirmed they advised, prescribed or administered that substance. Dilute urine samples A dilute urine sample has a creatinine level below 1.76mmol/L If your urine drug screening result shows you provided a dilute sample, we will notify you and ask you to take the necessary steps to avoid further dilute samples. Unsatisfactory results The following table lists unsatisfactory results for each type of screening. Screening Type Unsatisfactory result • You provide more than one dilute urine sample Urine drug screening • … • Your urine sample was otherwise inadequate or unsuitable Hair drug screening Your hair sample is inadequate or unsuitable

[15]

Dr Hanna's evidence

In his statement dated 20 October 2023, Dr Hanna gave responses to Complaints 1-5.
In so far as Complaints 1-2, he explained that in relation to the charges that were brought against him in 2012 and 2021, as no criminal conviction had been recorded, he had understood from his lawyer that if he was ever asked to disclose whether he had been subject of a criminal proceeding, he could respond in the negative. That is the reason he says when he filled out his application and renewals for registration, he did not mention the charges. He accepts that this was incorrect and that he now knows he was required to disclose the charges.
When cross-examined, Dr Hanna appeared reluctant to answer questions directly in respect of his prior charges. The 2012 charge he said he could not really recall the event. He did not appear to have the same lack of memory about why he completed his registration forms at that time or the renewal applications in subsequent years. His resolute lack of memory about the incident in 2012 seemed implausible given it was the first time he had been criminally charged and resulted in a court appearance.
Dr Hanna candidly admitted Complaints 3 and 4. However, our impression of his evidence was that he sought to minimise the positive results. He was extremely careful in his answers to questions about whether he had used cocaine since November 2020. He persistently denied "using" cocaine after November 2020 and yet in the face of positive UDS for cocaine in February 2022 and 2023, his language appeared to us to be carefully crafted to differentiate intentional and non-intentional use of cocaine by saying his ingestion of cocaine was accidental and not by intention on both occasions. We did not get the impression he was being truthful.
In respect of the positive UDS in February 2022, when cross-examined about the timing of exposure to COVID-19 in late December 2021 or January 2022, his answers lacked believability. Despite having awareness of the strict protocols at that time (particularly as a health practitioner) around isolating if testing positive for COVID-19 or if a close contact of a person who had tested positive, and about the strict hygiene protocols to prevent the spread of COVID-19, his excuse for testing positive for cocaine just a few weeks after his alleged exposure to COVID-19 was that he had shared vapes or cigarettes with people at a party on the Saturday night prior to his UDS. He said those vapes or cigarettes possibly contained cocaine but he did not know at the time because he was intoxicated - the first time he knew was when he got the positive test. When the Tribunal queried this with him, Dr Hanna said he knows it was stupid and it was a mistake. Dr Hanna's narrative in respect of this incident struck us as rather contrived in the circumstances of a health practitioner who appeared to be acutely aware of the impact of the spread of COVID-19 particularly for his business which on more than one occasion he informed the Council had to be closed because of the possible spread of COVID-19 among staff (see for example his email of 18 January 2022).
We also note that his attempt to blame the effect of alcohol on the cocaine use was inconsistent with recounts he gave to at least one of the medical professionals, Dr Murray Wright, which we refer to below.
In relation to his positive test in February 2023, again he said he unintentionally had a positive test and did not know he was positive until the test results came in. This was different from the version of events he gave on 8 March 2023 where he said he was sharing vapes or cigarettes with friends and he noticed there was cocaine in them because of the negative effect it was having on him.
In respect of dilute samples, he denied intentionally digesting water prior to tests in order to dilute the results. He said he drank more water prior to the test because he had just had "gastro". This was despite the participant policy expressly cautioning against consuming excess water and the consequences that may follow.
Overall, our impression of Dr Hanna was that he was not being entirely honest despite his assertions in cross-examination that "I am being as honest as I can".

[16]

Medical evidence concerning Dr Hanna

The HCCC relied on the expert evidence of Dr Michael Robertson, pharmacologist and forensic toxicologist, in his reports dated 20 June 2022, 4 June 2023 and 8 August 2023.
Dr Robertson has a Ph.D in medicine specialising in toxicology. He has over 30 years professional experience and has studied the affects and effects of drugs and poisons on humans and performed research in the field of pharmacology and toxicology including methods of drug analysis.
In his report of 20 June 2022, Dr Robertson explained the differences between chromatography screens and immunoassay. He explained that when cocaine is metabolised it produces BZE and EME. He said BZE is eliminated in the urine following cocaine use with only very small amounts of cocaine being excreted.
He opined that if one assumed Dr Hanna was inadvertently exposed to cocaine on Sunday 6 February 2022, it is less likely that the BZE in his results on 7 February 2022 were from this exposure as BZE would have been rapidly excreted. He acknowledged he could not be sure about the amount of cocaine allegedly inadvertently ingested so could not rule out the possibility.
He also noted the sample had a creatinine concentration of 2 mmol/L which was quite dilute. He explained that creatinine is the muscle-by-product produced by the body and is used as a marker of the level of dilution of the urine. Low levels of creatinine suggest more dilute urine. Dilute samples may be caused by excessive water consumption and may produce results with drugs at a concentration below the defined cut-off level.
Dr Robertson in his report of 4 June 2023 noted that where cocaine is smoked, it is only present in the urine for a few hours but its metabolite, BZE, may be detected at or above the 150ug/L cut-off for 24-48 hours. Dr Robertson opined that while UDS results on 30 January and 23 February 2023 were below the reporting limit, "the presence of BZE and EME in these samples is consistent with the use of cocaine in the day or days prior to both 30/1/2023 and 23/2/23".
In his report of 8 August 2023, Dr Michael Robertson stated: "In addition to the two previously reported positive results (07/02/2022 and 27/02/2023), benzoylecgonine (the major urinary metabolite of cocaine) was detected in samples collected on 21/01/2022; 09/02/2022; 14/06/2022; 27/07/2022; 10/10/2022; 02/11/2022; 18/11/2022; 22/11/2022; 07/12/2022; 14/12/2022; 22/12/2022; 30/01/2023;23/02/2023; 16/03/2023; and 17/03/2023. Whilst I am unable to determine whether Dr Hanna knowingly used cocaine on the above occasions, the presence of benzoylecgonine in the urine samples referred to above and including the two previously reported positive results demonstrates an amount of use, knowingly or otherwise, on multiple occasions since November 2020."
The report goes on at [2(c)] to state: "As stated above, the presence of benzoylecgonine in the urine is consistent with the use of cocaine by Dr Hanna in the day or two prior to the collection of the samples. From the provided table, there appears to have been at least 16 occasions of cocaine use between 21 January 2022 and 22 March 2023. I note samples collected on 16/03/23 and 17/03/23 were both positive and as such may not represent re-use on 17/03/23 but rather ongoing excretion of benzoylecgonine. There is no way to determine the intent of ingestion from a urine sample alone."
Dr Robertson relied on the letter from Dr Charles Appleton, director of biochemistry/toxicology at qml Pathology in July 2023, which included a table Dr Appleton had prepared which was populated with the mass spectrometric levels of the cocaine metabolites BZE and EME where present above the method's validated lower limit of reporting of 30ug/L. While the cut-off defined in the Standard is 300ug/L, he recorded the occasions where Dr Hanna's cocaine metabolite immunoassay screen had a result of 50ug/L or more on 24 out of 62 results. In other words, while not at a level of detection under the Standard for reporting, it confirmed the presence of the metabolites on these occasions. Dr Appleton noted the cut-off for BZE and EME of 150ug/L whether for screening or confirmation but noted that where the presence of BZE or EME is discovered in a UDS "there is no uncertainty regarding its presence".
Dr Robertson opined that, based on Dr Appleton's table, there "appears to have been at least 16 occasions of cocaine use between 21 January 2022 and 22 March 2023". This evidence was not challenged.
Dr Robertson explained in cross-examination that when reporting the results of a UDS under the Standard, even if the drug level is below the cuff-off level you report that as a negative despite the drug being present.
In respect of dilute samples, in his report Dr Robertson explained that a single glass of water can result in a material reduction in creatinine within several hours of consumption and can last for a number of hours. He noted that Dr Hanna's 27 February 2023 UDS was "unusually dilute".
Dr Robertson was cross-examined about the use of the expression "non-negative" in the reporting of results of UDS. He agreed that the expression "non-negative" is not referred to in the Standard. He said it is just another way of saying "positive" but that in the industry you do not use the expression positive unless the sample is confirmed as a positive sample - non-negative is in effect a presumptive positive. A non-negative is a result which is at or above the cut-off but then has to go to the confirmation process which has a level which is lower than the screening cut-off level. He said that a negative or a non-negative does not mean that the drug is not present in the sample; it is just that it is not at the cut-off level required for reporting.
Dr Robertson accepted that the reason there was a cut-off in the Standard was to prevent against reporting in circumstances of innocent exposure and disputes from inadvertent ingestion. The cut-offs, he explained, were high enough that use in the 1-2 days prior to the sample being collected would ordinarily show up.
The content of Dr Robertson's expert reports was not undermined in cross-examination. We accept his evidence and rely on it.
In the materials was a report of Dr Murray Wright, consultant psychiatrist, dated 14 September 2023. It was originally prepared for the purpose of a further complaint brought by the HCCC but which was abandoned prior to the hearing. The relevant part of Dr Wright's evidence is that he consulted with Dr Hanna on 11 September 2023 and that Dr Hanna told him that he had "never drunk excessive alcohol and has never become so intoxicated that he … lost control…". Dr Wright expressed the view that: "It seems implausible that someone who has been charged with possession of cocaine on two occasions eight years apart would only have consumed cocaine on one occasion ever. It is not uncommon for a person using illicit substances to deny or minimize any such use, particularly when faced with serious consequences such as the situation Dr Hanna has found himself in."
Dr Hanna relied on a report of Dr Sadia Saeed, consultant psychiatrist, dated 8 November 2023. Dr Saeed has been treating Dr Hanna since October 2022. She had previously prepared reports for Dr Hanna as referred to above.
In her previous report of 30 April 2023, Dr Saeed expressed the opinion that there was evidence of recurrent stimulant use in situations and that Dr Hanna should engage with a drug and alcohol counsellor for one year. She referred to the benefit Dr Hanna has derived from attending relapse prevention strategies such as the "day program" at the Ramsay Clinic.
She expressed the opinion that he had demonstrated a consistent pattern of abstinence from illicit substances as evidenced by regular negative urine drug screens. She indicated that he shows insight into his previous behaviours; expresses remorse and a strong commitment to maintaining sobriety.
Dr Saeed was not required for cross-examination.

[17]

The relevant law

The Tribunal may exercise the disciplinary powers conferred by Subdiv 6, Div 6 of Pt 8 of the National Law if (a) it finds the subject matter of the complaint to have been proven or (b) the practitioner admits to it in writing to the Tribunal: National Law, s 149.
The HCCC bears the onus of proving the complaints against Dr Hanna, on the balance of probabilities. The Tribunal is not bound by the rules of evidence in these proceedings: National Law, cl 2, Sch 5D. The approach to be adopted in making findings of fact in respect of matters in dispute was explained in Tsolis v Health Care Complaints Commission [2023] NSWSC 1599: "[93] While these proceedings are heard on a civil standard, when the Briginshaw test applies is not whether a fact is more probable than not. It is whether the Tribunal, having considered the circumstances, is comfortably satisfied of the existence of a fact in issue."
Further, in Nusrat Deano v Health Care Complaints Commission [2012] NSWSC 693 Harrison AsJ explained: "[44] The Tribunal was not bound by the rules of evidence but could inform itself of any matter that it saw fit (Sch 5D of the National Law). However, as Fullerton J said in Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705 at [18]: '[31] … because of the seriousness of the allegations and their consequences [the Tribunal] had to be reasonably satisfied that the particulars of the complaints had been established by evidence of sufficient quality and weight before considering whether those particulars constituted unsatisfactory professional conduct or professional misconduct or both.'"
The principles relevant to disciplinary proceedings under the National Law are uncontroversial.
The overarching principles are found in s 3 and s 3A of the National Law. Section 3A, a NSW provision, mandates that in determining proceedings the Tribunal has the protection of the health and safety of the public as its paramount consideration.
Unless a provision in the National Law is in conflict with, or repugnant to the practice and procedure provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") those provisions apply: see Medical Council of NSW v Lee [2017] NSWCA 282 at [7]. The guiding principle of the NCAT Act requires the just, quick and cheap resolution of the real issues in dispute between the parties. Each of the parties to the proceedings is under a duty to co-operate with the Tribunal to give effect to the guiding principle: see NCAT Act, s 36.
The HCCC (in the second stage of the hearing) seeks orders from the Tribunal under the National Law, s 149C(1)(b) to cancel Dr Hanna's registration for one year.
The Tribunal in this proceeding must determine whether it is satisfied, to the required standard, that the "subject matter" of the complaint is proven, if not admitted in writing. In Shuquan Liu v Health Care Complaints Commission [2018] NSWSC 315 ("Liu") Wilson J held: "[36] It is clear that the subject matter of the complaint may or will be broader than individual particulars of it, and include those matters of fact advanced in support of it. That must be so having regard to the overall aims and objectives of the National Law, and the wide procedural powers given to the Tribunal. In particular, the Tribunal's power to inform itself in any way it sees fit, and to determine any complaint it considers should be determined, regardless of the complaint advanced, is inconsistent with a narrow reading of the Tribunal's power to range beyond the particulars of a complaint. [37] The role of the Tribunal is to conduct an inquiry into a complaint made against a health practitioner, informed as it thinks necessary, and determining any complaint it considers arises on the material before it. There can be no basis in such circumstances to consider the Tribunal bound by the way in which a complaint is particularised, or to confine the exercise of its powers to make findings and orders by strict reference to the terms of the complaint as originally advanced."
In Liu at [43], Wilson J held that procedural fairness requires the practitioner be given warning if a finding of unsatisfactory professional conduct might be made on a basis other than that advanced by the HCCC. The HCCC's position as stated in submissions, is that particulars of various policies said to be contravened have been given for each of the particulars, acknowledging that it would be open for the Tribunal to find that the factual matter alleged in each particular has been proven and that some of the specified policies have been contravened, but not others.

[19]

Particular 1

This particular alleges that Dr Hanna breached condition 1 of his registration by providing dilute UDS on four occasions over a 14 month period: 1. 14 December 2021 (creatinine 1.4mmol/L); 2. 23 December 2021 (creatinine 1.3mmol/L); 3. 10 October 2022 (creatinine 1.1mmo1/L); and 4. 27 February 2023 (creatinine 1.1mmol/L).
Further, it was submitted by the HCCC that the dilute samples demonstrated a pattern of behaviour which raises concern about Dr Hanna's compliance with the drug screening policy, related procedure and related conditions. Such pattern of behaviour, if found, would constitute non-compliance pursuant to cl 4.2 of the policy.
The HCCC also contended that the 4 dilute results were also in breach of clause 4.2 of the HPCA Drug Screening Policy as it rendered those results unsatisfactory results.
Dr Hanna submitted that the HPCA Drug Screening Policy sets out the circumstances where there is non-compliance with drug screening. It indicates that non-compliance "includes, but is not limited to the circumstances listed in" the table at 4.2. That table does not list providing a dilute sample as a circumstance of non-compliance. He emphasised that in order to comply with a policy, it is important that participants know what would constitute non-compliance. In this regard, it was said, the words "is not limited to" in cl 4.2 could not possibly cover every conceivable circumstance not listed in the table. Further, pursuant to the Participant procedure policy, if one receives an unsatisfactory result, the HCCC may require you to answer some questions or may take further action: it does not stipulate this is a breach of the policy.
For completeness, we note that the HPCA Participant procedure: drug screening at [8.2] defines a dilute result as below 1.76mmol/L and defines an unsatisfactory result as "more than one dilute urine sample". However, nowhere in the Participant Procedure or HPCA Drug Screening Policy does it stipulate or notify that an unsatisfactory result constitutes a breach of the policy. Nor does it specify that producing a dilute sample or more than one dilute sample is of itself a breach of the policy. Rather, in the case of an unsatisfactory result, the Participant procedure policy indicates that the "participant will be asked for a written explanation and information from the pathology provided to determine whether to take further action".
Consequently, while we agree with Dr Hanna's submission that an unsatisfactory result does not necessarily constitute a breach of the policy, this was only part of the HCCC argument and this does not answer the HCCC's contention that the diluted samples demonstrate a pattern of behaviour that raise a concern about Dr Hanna's compliance and would constitute non-compliance with the policy (in breach of condition 1 on his registration).
Dr Hanna submitted that any dilution of a sample was explained and that there was no deliberate attempt to dilute the sample.The HCCC submitted that neither the HPCA Participant procedure: drug screening or HPCA Drug Screening Policy require there to be a finding of intentional dilution of the sample for there to be a breach of the policy. The very fact that a sample is dilute on more than one occasion is insufficient to demonstrate a pattern of behaviour.
We note that the Participant procedure policy expressly explains that drinking water can dilute the sample. Dr Hanna was provided with this policy and so should have been aware, and we find, was aware, that ingesting water prior to a test could dilute the sample. This is important as two of the dilute samples were ones at or about the time of positive results for cocaine metabolites or where the presence of cocaine metabolites was found.
The 10 October 2022, Dr Hanna's UDS had trace cocaine metabolites below the cut-off. Dr Michael Robertson in his expert report dated 8 August 2023 opines: "The creatinine concentration in the sample collected on 10 October 2022 had a creatinine concentration of 1.1mmol/L and would be regarded as dilute and the benzoylecgonine concentration of 64ug/L. It is possible that if the urine sample was not dilute, that the result may have been above the cut-off and considered positive."
The 27 February 2023 sample was not just dilute but detected BZE at 971 ug/l which is significantly above the cut-off.
We infer in the circumstances that Dr Hanna had knowledge of the fact that drinking water would dilute his samples and intentionally ingested water prior to the tests on 10 October 2022 and 27 February 2023 to mask his intake of cocaine.
In the present circumstances we are satisfied on the evidence that there was a pattern of behaviour of dilute samples which, in context explored further below, is troubling and raises concerns about Dr Hanna's compliance with drug screening.
We are comfortably satisfied therefore that this particular is proven.

[20]

Particular 2

The HPCA Drug Screening Policy at clause 4.2 defines non-compliance with drug screening as including "the participant fails to attend for screening when required".
The HPCA Participant procedure: drug screening at cl 9.1 states that if a participant misses a UDS, they must notify the Council immediately, provide the Council with evidence to support their absence within 5 business days and attend for screening no later than the next business day.
Dr Hanna was absent from testing on 25 January 2022, 27 January 2022 and 12 December 2022 and did not notify as required.
The HCCC made the following submissions about the chronology of events surrounding these missed UDS. "25 January 2022 and 27 January 2022 - missed UDS For the missed UDS on 25 January 2022 and 27 January 2022 the Respondent failed to attend urine drug testing on the following dates or the next business day, failed to notify the Council within 24 hours of non-attendance, and/or failed to provide an appropriate illness certificate within 5 business days to support the non-attendance. On 3 February 2022, the Council sent the Respondent an email advising his that he had not attended for screening on 25 and 27 January 2022. On 3 February 2022, the Respondent's UDS was clear. On 7 February 2022, the Respondent wrote to the Council advising that he forgot to call the testing line number and blamed the stress of the previous few weeks and that he will ensure that he complies in the future. That same day he underwent a UDS that was positive for a cocaine metabolite Benzoylecgonine 266ug/L (the cut-off level is 150ug/L for benzoylecgonine). 12 December 2022 - missed UDS On 13 December 2022, the Respondent sent an email to the Council at 2:25pm advising that he had forgotten to call the hotline the day prior to find out if he was required to test. On 13 December 2022, the Respondent obtained a certificate from Laverty that he had attended Hills Medical and Dental between 5.30 and 5.45pm and there was no UDS after 5.00pm as he had to book earlier. The Respondent should have been aware of the need to book given the lengthy period of testing prior. On 14 December 2022, the Respondent's UDS detected cocaine or cocaine metabolites at levels below the reporting cut-off. On 14 December 2022, the Respondent wrote to the Council advising that he had missed a UDS on 12 December 2022. He did not call the UDS line before 5.00pm. He said this was a one-off where he missed the testing. On 14 December 2022, the Respondent sent an email to the Council advising that he went to Blacktown and had difficulties with testing and complained about the tester. On 20 December 2022, Dr Sadia Saeed, consultant psychiatrist and addiction specialist saw the Respondent and provided a report including: 'On assessment today, James reported that his stress level has been "on the high side" as he remains anxious about everything. He has hopelessness and negative cognitions around his future outcome. He denied having any suicidal thoughts or plans. His appetite is unaffected. James continues to struggle with his sleep with sleep initiation insomnia and stays up until midnight. Otherwise, he is doing fine. My opinion is that James has evidence of adjustment disorder in the context of ongoing issues with his medical registration. James does not have evidence of substance use. He understands that he has to refrain from substance use and has reasonable insight. There are no other concerns.' On 21 December 2022, the Council wrote to the Respondent after the Council meeting to consider his compliance with UDS and the dilute urine drug screen result of 10 October 2022. The Council wrote to remind him to provide valid testing and to advise that further instances of non-compliance may result in the Council considering making a complaint about non-compliance to the HCCC or taking urgent action under s l50. On 22 December 2022 and 10 January 2023, the Respondent's UDS detected cocaine or cocaine metabolites at levels below the reporting cut-off."
Dr Hanna submits he was not required to attend within 24 hours of "non-attendance for testing" (as particularised) but rather within 24 hours of returning to work. We agree. The policy requires that when "you return from leave, you must attend for screening no later than the next business day".
However, more troubling, is that in context there is a pattern of behaviour around the timing of these missed UDS in that cocaine metabolites were present in his sample when he finally attended for testing. More will be said about this below.
We find on the balance of probabilities that Dr Hanna missed his tests on 25 January 2022 and 27 January 2022 as he had been using cocaine and suspected the tests would have been positive for cocaine or its metabolites. Similarly, it is more likely than not, and we infer from the evidence that Dr Hanna missed his test on 12 December 2022 as he had used cocaine and was concerned it would show up in the test.
We are satisfied on the evidence that Dr Hanna contravened condition 1 on his registration by his non-compliance with the policy in failing to attend drug testing on 25 and 27 January 2022 and 12 December 2022; failing to notify the council within 24 hours of non-attendance and failing to provide an appropriate illness certificate within 5 business days to support the non-attendance.

[23]

Particular 5(e) - absences with medical certificates or explanation

The first additional matter that the HCCC rely on as part of the concerning pattern of behaviour is some of the absences of Dr Hanna from UDS where he had medical certificates and/or provided an explanation.
Dr Hanna provided a medical certificate in support of his absence from testing on Monday, 20 December 2021 due to "gastro". The medical practitioner who gave the certificate noted that he was not Dr Hanna's treating doctor and that he had confirmed his identity when providing the certificate. This indicates that Dr Hanna physically attended at the general practitioner's premises and there is no evidence (nor was it ever suggested) that Dr Hanna did not physically attend. It is puzzling that Dr Hanna was able to attend an appointment with a general practitioner to obtain a medical certificate on 20 December 2021 but not attend for his UDS that same day. There was no evidence before us that explained this anomaly.
On 23 December 2021, Dr Hanna's UDS was dilute and from 24 December 2021 to 13 January 2022 he did not undergo any UDS for the following reasons: 1. On 6 January 2022, he undertook PCR test for COVID-19 and was notified of the negative result the following day. The PCR test was the day after he was required to attend his UDS (5 January). Dr Hanna sent an email to the Council saying that earlier in the week he had tested positive on a RAT and that he had undergone a PCR test and was waiting for his results. He said he would continue to self-isolate until a negative PCR was confirmed. He also said "… as soon as I have an negative test result, I will present for testing straight away as per the testing guidelines". 2. Although he received a negative PCR test result on the very next day, 7 January 2022, he did not present for a UDS straight away or in accordance with the guidelines. 3. Rather, on 13 January 2022, the Council emailed Dr Hanna asking for proof of his attendance for the PCR test and the result. He provided the PCR test result. The following day he attended for a UDS which did not detect cocaine or its metabolites. 4. On 18 January 2022, Dr Hanna informed Council that (despite his negative PCR test) he had continued to quarantine for 7 days as a close contact and then attended for testing the next business day on 14 January 2022. He also included a photo of a rapid antigen test. 5. On 19 January 2022, the Council wrote Dr Hanna seeking clarification of his positive RAT result particularly as the photograph did not appear to evidence that it was in fact a test conducted on himself. 6. On 21 January 2022, in further correspondence, Dr Hanna said that he had tested positive on a RAT on 31 December 2021 and he was negative twice on 3 January 2022. He said his partner tested positive on 7 January 2022 and that he then self-isolated for 7 days. He advised that he was in practice for a full day on 22 December 2021, 29 December 2021, 30 December 2021 and a half-day on 4 January 2022, 5 January 2022 and 19 January 2022.
Given Dr Hanna went to work on 5 January 2022, we find he had no reasonable excuse for being absent from testing that day.
Further, while there is a photo of a positive RAT which he provided, we do not consider this reliable evidence that this was in fact a test performed on himself at that time, particularly given his PCR test was negative. We give the photo of the RAT very little weight in determining whether or not he had a reasonable excuse for his non-attendance on 5 January 2022 and it could not have any bearing on why he did not attend on 12 January 2022 given by that stage he had already received a negative PCR test. He said he would test as soon as he received a negative PCR test but he failed to do so and we do not accept on the evidence before us that he was unable to attend on 12 January 2022.
On 21 January 2022, Dr Hanna's UDS showed the presence of cocaine or cocaine metabolites at levels below the reporting cut-off. While we accept detection of cocaine or its metabolites below the reporting cut-off is not of itself a breach of the policy, the presence of cocaine or its metabolites gives context to and informs the question of whether there was a pattern of behaviour which raises a concern.
We note that on 7 February 2022, Dr Hanna's UDS was positive for cocaine metabolites. While his UDS on 9 February 2022 did not detect cocaine or its metabolites, Dr Hanna did not undergo any drug screening again until 2 March 2022.
He was required to test on Monday, 28 February 2022. On that day he obtained a medical certificate from Dr Peter Low for the period 28 February 2022 to 2 March 2022.
On 1 March 2022, Dr Hanna emailed Council: "I have attached the medical illness form for yesterday and today, Tuesday the 1st of March. My Doctor believes it may just be a simple 24-hour bug and should pass by the end of today. I left work early yesterday to attend the medical Centre and have seen my treating practitioner Dr Low. I was quite ill yesterday with diarrhoea and stomach cramps and have taken today off work as a result. I do not envisage any changes preventing me from attending work tomorrow, Wednesday the 2nd of March. I will ensure that I present for testing as well as per the guidelines."
While in isolation, it may be reasonable to accept this as an excuse for non-attendance on this one occasion. However, in the context of all the evidence, it seems implausible. That context includes that Dr Hanna missed his UDS on two of three Mondays in the period December 2021 to 28 February 2022 with medical certificates and on the third Monday (7 February 2022) he tested positive for cocaine metabolites.
We find that on the balance of probabilities, Dr Hanna was absent on these occasions for the reason that he was concerned he would produce a positive result.
Dr Hanna submits that it is not alleged that he failed to comply with the policy in providing medical certificates or being in COVID-19 isolation on four occasions over 14 months and so it is not open to the Tribunal to conclude this behaviour is a contravention of the drug screening policy.
While it is correct that no such allegations have been made, Dr Hanna's submissions fails to address the point made by the HCCC - that in the context of other conduct relied on by the HCCC, these absences demonstrate a pattern of behaviour which raises concern about Dr Hanna's compliance with the Drug Screening Policy: that is a listed item in the table at 4.3 of the Drug Screening Policy of non-compliance or contravention.

[25]

Consideration of Particular 5

Having carefully considered all of the evidence, we are comfortably satisfied that particular 5 of Complaint 5 is established.
We find that Dr Hanna exhibited a pattern of behaviour that raises concerns about his compliance with the drug screening policy. That behaviour includes his absences from testing (including with medical certificates), dilute samples, the presence of cocaine metabolites in Dr Hanna's tests on numerous occasions at below the cut-off level (as confirmed by Dr Robertson) and the positive results. Even if we excluded particular 5(f) - the presence of BZE in the various samples at levels below the cut off - we consider there is sufficient evidence (as set out in the balance of the particulars) to demonstrate a pattern of behaviour that is concerning and which gives us no confidence that Dr Hanna complied with the policy.
Dr Hanna's pattern of behaviour is particularly evident in the periods December 2021 to February 2022 and December 2022 to February 2023 which are the summer months and which cover the Christmas/New Year holiday periods. Both positive UDS results occurred in the month of February.
We think it more likely than not that Dr Hanna was using cocaine at least in the periods December 2021 to February 2022; early October 2022; and December 2022 to February 2023. We find on the balance of probabilities when all the evidence is considered in context, that his absences from testing on 20 December 2021, 5 January 2022, 12 January 2022 and 28 February 2022 were for the reason that he was concerned a UDS would be positive. We think it likely that Dr Hanna's dilute samples on 14 December 2021, 23 December 2021, 10 October 2022 and 27 February 2023 were a result of Dr Hanna deliberately consuming water to dilute his results.
While we accept Dr Hanna's submission that the presence of BZE in a UDS under the reportable level is a negative result for the purposes of reporting under the terms of the Drug Screening Policy and does not constitute a breach of the policy of itself, when considered in the totality of the circumstances in this case, the numerous occasions on which the presence of BZE was found in Dr Hanna's UDS (below the cut-off level) evidences that he was using cocaine contrary to his assertion that he was not. We also accept that reporting levels may prevent reporting of innocent exposure, but we are not satisfied and do not accept on the evidence that Dr Hanna was innocently exposed to cocaine.
We find that Dr Hanna has contravened condition 1 of his registration by engaging in a pattern of behaviour which raises a concern about his compliance with the policy, which is non-compliance under cl 4.2 of the policy.

[26]

Whether unsatisfactory professional conduct and professional misconduct

Section 139B(1)(b) of the National Law provides: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (b) 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.
In respect of each of Complaints 2, 3, 4 and 5, as each Complaint is established (and Dr Hanna in any event admits Complaints 2, 3 and 4), we find that he is guilty of unsatisfactory professional conduct in respect of each Complaint.
The question whether Dr Hanna is guilty of professional misconduct is a separate question. Section 139E of the National Law provides as follows: 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.
The term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], Basten JA (Chen). The exercise involves an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct: Chen at [20]. As Basten JA explained at [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. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1)."
The question for the Tribunal then, is whether the conduct in question is of a sufficiently serious nature to justify suspension or cancellation. As held in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67], the conduct "must have the capacity to justify such an order, whether or not such an order should be made in particular circumstances".
In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638; [1997] NSWCA 264, the Full Court held: "The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards."
As noted in Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [35], the "seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred".
Whether and to what extent the misconduct of Dr Hanna constitutes professional misconduct depends upon whether it is so serious in the aggregate as to justify suspension or cancellation of registration. This requires us to determine whether "when [Dr Hanna's] contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": Health Care Complaints Commission v Perroux [2011] NSWDC 99 at [18].
It is a fact that the practice conditions were lawfully imposed on Dr Hanna's registration and there can be no doubt that they were so imposed for the protection and safety of the public.
Practice conditions are an integral and important part of the regulation of health practitioners in New South Wales. Dr Hanna was obliged to conform to them. The contraventions of those conditions, in our view, demonstrate a manifest disregard by Dr Hanna of his lawful obligations.
We regard the behaviour of Dr Hanna in failing to comply with the conditions on his registration on several occasions, including two positive UDS 12 months apart, as being of a most serious matter. His attempt to minimise the results of UDS which showed the presence of cocaine metabolites on no less than 16 occasions in the two year period and his denials about the use of cocaine demonstrate a failure to take responsibility for his actions.
We infer from all of the events described above and from the expert toxicologist's evidence as to the presence of cocaine in Dr Hanna's UDS at levels below the cut-off, that Dr Hanna was using cocaine - contrary to his denial of same.
As we have already found, Dr Hanna is guilty of unsatisfactory professional conduct on more than one occasion (Complaints 2 to 5).
We note that whether and to what extent unsatisfactory professional conduct satisfies the criteria which enables a finding of professional misconduct will be a matter of impression and evaluative judgment. In our opinion, all of the matters which we have found proven and which constitute unsatisfactory professional conduct, when considered in the aggregate, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of Dr Hanna's registration (pursuant to National Law, s 139E(b)). Consequently, we find that Dr Hanna's conduct (in Complaints 2 to 5) constitute professional misconduct and that Complaint 6 is therefore established.
Even if only Complaints 2 to 4 (which were admitted by Dr Hanna) were taken into consideration for the purposes of determining whether he is guilty of professional misconduct, we would have reached the same conclusion.

At a glance

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