Health Care Complaints Commission v Rixon

NCAT Occupational|2015-08-17

Solicitors: Crown Solicitor for the Applicant TressCox Solicitors for the Respondent File Number(s): 1520056

Introduction

These are proceedings initiated by the Health Care Complaints Commission against the Respondent medical practitioner. They were commenced by an application filed in the Tribunal on 7 March 2015.
The application sought orders under Section 149A of the Health Practitioner Regulation National Law (NSW) (2009 no 86a) ("the National Law") and an order for costs.

Practice Conditions 1. The practitioner must meet with a mentor for no less than 2 hours per calendar month for at least 12 months; and 2. Within twenty-eight (28) days of returning to practice, the practitioner must nominate a mentor to the Medical Board of Australia ("the Board") who is a professional colleague registered as a medical practitioner and experienced in pediatrics ("the mentor"). 3. The mentor must: 1. Be senior to the practitioner by either years of experience or by position and provide the Board with a curriculum vitae; 2. Agree to the nomination; 3. Be nominated in writing by the practitioner within twenty-eight (28) days of the practitioner's return to work; and 4. Be approved in writing by the Board. 1. Within seven days of the approval of the mentor by the Board the practitioner must provide the Board with a signed letter from the mentor that states he/she has been provided with a copy of all practice and health conditions imposed on the practitioner's registration and a copy of the New South Wales Civil and Administrative Tribunal decision. 2. The mentoring must focus on: compliance with practice conditions; compliance with health conditions, clinical issues, work-life balance, professional development and any other work-related issue. 3. Should the mentoring relationship terminate (for any reason), the practitioner must provide a new nomination to the Board. Such a nomination must be made by the practitioner within seven days of their becoming aware of such a termination. 4. The practitioner must provide reports written by the mentor to the Board, addressing hours of contact and to inform the Board if there if any concern about his professional conduct, health or personal wellbeing. These reports must be provided on the following occasions. 1. at the end of each calendar month; and 2. Whenever the mentor has a concern regarding the practitioner's health, conduct, competency or fitness to practise the profession; and 3. Whenever requested, verbally or in writing, by the Board. 1. On his return to practice and until a time as determined appropriate by the Board, the practitioner must; 1. Only practise in a position approved by the Board; 2. Only work up to 40 hours per week; 3. Not work on-call; 4. Not work in the intensive care or high dependency unit or in anesthetics; 5. Not work in solo practice; 6. Within 7 days of returning to practice, provide written evidence to the Board that he has notified all employers / CEO of any health care facility where the practitioner works of all practice and health conditions on the practitioners registration and a copy of the New South wales Civil and Administrative Tribunal decision (or within 7 days of commencing any other future employment); 1. The practitioner must provide written reports to the Board from his employer/ practice principal addressing his fitness/competence to practise medicine and any concerns about his professional conduct, health or personal wellbeing at the following times: 1. Every four (4) months from commencement of employment; 2. Whenever the employer (or any third party known to the employer) holds a concern about his competence/fitness to practise medicine; and 3. On receipt of a request, whether written or verbal from the Board. 1. The practitioner must authorise the Board to notify current and future persons or organisations at places where he works as a medical practitioner in Australia, of any issues arising in relation to compliance with these conditions. 2. A review of these conditions may be conducted as follows: 1. Whilst the practitioner's principal place of practice is New South Wales, the Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW); and 2. Whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, sections 125 to 127 of the Health Practitioner Regulation National Law are to apply, and accordingly in those circumstances a review of these conditions can be conducted by the Medical Board of Australia.

Health conditions 1. The practitioner will not self-prescribe. 2. The practitioner must notify the Board immediately if he is aware that there is any material change in his health. 3. The practitioner must remain completely abstinent from alcohol. 1. If the practitioner's principal place of residence is in NSW, contravention of condition 3 or any variation of this condition will result in the practitioner's registration being cancelled 1. The practitioner must undergo breath-alcohol testing and provide the Board with a copy of his log book record on a fortnightly basis in accordance with the Board's protocol. Contravention of this order will result in the practitioner's registration being cancelled. 1. If the practitioner's principal place of residence is in NSW contravention of condition 4 or any variation of this condition will result in the practitioner's registration being cancelled. 1. The practitioner must attend for Carbohydrate Deficient Transferrin, Liver Function Testing and Mean Corpuscular Volume testing, as and when required by the Board, in accordance with the Board's protocol: 1. If the practitioner's principal place of residence is in NSW, contravention of condition 5 or any variation of this condition will result in the practitioner's registration being cancelled. 1. The practitioner agrees to attend for review by a doctor or doctors nominated by the Board as requested by the Board, and to meet the cost of these reviews. 2. The practitioner agrees to authorise the release of any health assessment report commissioned by the Board, and any reports obtained in compliance with these conditions to his treating psychiatrist, psychologist and GP. 3. The practitioner must not unless authorised by the Board prescribe and/or supply any medications to his immediate or extended family. 4. The practitioner must within 7 days of the imposition of the conditions, provide to the Board details of his treating general practitioner (GP) (who is not a member of his/her family or a professional colleague). 1. The practitioner must provide a report to the Board written by the GP on a quarterly basis, addressing the practitioner's attendance with the GP. The practitioner must also provide a report to the Board written by the GP whenever the Board requests or whenever the psychiatrist has concerns regarding the practitioner's health about which the GP considers it is necessary to advise the Board. 2. The practitioner must notify the Board of any change to their treating GP within 7 days of the change. 3. The GP will prescribe and supervise all medications other than those prescribed by treating specialists. 1. The practitioner must attend for treatment by a psychiatrist of his own choice at a frequency to be determined by the psychiatrist. 1. The practitioner must provide a report written by the psychiatrist to the Board on a quarterly basis, addressing the practitioner's attendance for treatment. The practitioner must also provide a report to the Board written by the psychiatrist whenever the Board requests or whenever the psychiatrist has concerns regarding the practitioner's health about which the psychiatrist considers it is necessary to advise the Board. 2. The practitioner must notify the Board of any change to their treating psychiatrist within 7 days of the change. 1. The practitioner must attend for treatment by a psychologist of his own choice at a frequency to be determined by the psychologist. 1. The practitioner must provide a report written by the Psychologist to the Board on a quarterly basis, addressing the practitioner's attendance for treatment. The practitioner must also provide a report to the Board written by the psychologist whenever the Board requests or whenever the psychologist has concerns regarding the practitioner's health about which the psychologist considers it is necessary to advise the Board. 2. The practitioner must notify the Board of any change to their treating psychologist within 7 days of the change. 1. The practitioner must take any medication prescribed by his treating practitioners. 2. The practitioner is responsible for all costs associated with compliance with these conditions except the costs of any review and report from a health professional instructed by the Board. 3. The practitioner must within 14 days of the imposition of these orders. 1. Provide a hardcopy of all practice and health conditions on his registration to his treating GP, psychiatrist and psychologist and provide the Board with signed letters from his treating GP, psychiatrist and psychologist that states they have each been provided with a copy of all practice and health conditions imposed on the practitioner's registration. 2. provide the Board with any report required in accordance with these conditions from his treating GP, psychiatrist and psychologist.

The Practitioner admitted by his reply filed 19 June 2015 the particulars of ground 1. In written submissions filed 24 August 2015 the Practitioner also conceded that given the period of time during which the breaches in ground 1 occurred, it was open to the Tribunal to find that the Practitioner's conduct under ground 1, was "of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration" (S 139E National Law) and therefore find it was professional misconduct and ground 2 was proven.
In the submissions for the Practitioner, it was submitted that because the Practitioner is not currently impaired, the third ground has not been proved.
With respect to the practice conditions proposed by the Applicant (per para 4 above), the Practitioner opposed only sub-paragraphs 2(b) (Not work more than 40 hours in a week), 2(c) (not work on call), and 2(d) (not work in the intensive care or high dependency unit or in anaesthetics), of proposed Practice Condition 2 and proposed Practice Condition 3 (written reports to Board by his employer). In relation to the Health Conditions proposed by the Applicant, the Practitioner opposed 9 (a) (quarterly GP reports to Board), 10 (a) (quarterly written reports of treating psychiatrist to Board), 11 (a) (quarterly written reports of treating psychologist to Board) and 14 (b) "provide the Board with any report required in accordance with these conditions from his treating GP, Psychiatrist and psychologist.").

Background

The Practitioner graduated from the University of Queensland as Bachelor of Medicine and Bachelor of Surgery in 1996. He registered as a Medical Practitioner with the Australian Health Practitioners Regulation Agency ("AHPRA") from 19 January 1996. He resided and worked in Brisbane until August 2004 when he moved to Sydney to take up a position as a Paediatric and Intensive Care Registrar at Westmead Children's Hospital.
He was working at Westmead Children's Hospital until January 2010 and then moved to the Mater Hospital in Brisbane and subsequently on secondment for 12 months at the Royal Childrens Hospital in Brisbane until August 2011 when he returned to the Mater. On 9 September 2011 he self-reported to AHPRA. He said that he had suffered "life-long depression and anxiety problems". He said that he had worked for 10 years in Paediatrics, and although it was a stressful job, the stress from the job had not exacerbated his condition. He said that when he moved to Brisbane he had "no social support" and a number of relationship issues had lead him to start drinking. He said that 6 months previously he had sought support for him in relation to his drinking and depression. He said that his work had been affected recently because of increased absenteeism "because of a hangover or tiredness from drinking". He related that there were complaints made about him by his colleagues at the hospital in Brisbane because of his "grumpiness and irritability whilst at work".
He said that he stopped drinking at the end of 2010, but when his secondment in Brisbane was near its end, in about July / August 2011, he began drinking again and then sought help from his supervisor. He was referred to Dr Sullivan, a psychiatrist. He was continuing to see her twice a month and also his general practitioner twice a month for assistance and treatment of his depression. He had also been referred to a psychologist which whom he was having "cognitive therapy". He said that he found the treatment very helpful.
Between leaving his position at the Royal Children's Hospital and returning to the Mater Hospital, he had 2 weeks of scheduled annual leave. During that time he had "personal troubles with his relationship". Whilst intoxicated he fell and struck his head which resulted in concussion and treatment as an outpatient. He had ongoing headaches. He consulted a neurologist, who cleared him from any impairment from a concussion and advised his employer that he was safe to work.
He reported that he had been prescribed daily medication ("Pristiq") for his depression, "Antabuse" for his alcohol problem and "Seroqual" to assist his sleeping, and also for treatment of his anxiety.
At the time of self-reporting he said that he had not had any alcohol for 3 weeks and wrote "I feel on track". He was asked about triggers for encouragement of his drinking and he said "it was all personal and home-life related". He said that he would like monitoring of his alcohol use.
The Practitioner told AHPRA that his employer had placed him on a "workplace management plan for supervised practice". He said that this would be for the next 2 weeks and he would always be rostered on with a more senior colleague.
A report was obtained by AHPRA from Dr Angelos, the Practitioner's general practitioner. At the time Dr Sullivan was on leave. Dr Angelos gave an opinion that the Practitioner was "fit to work, under supervision of ICU director…" and arrangements were made for the Practitioner to see Dr Marian Sullivan, a psychiatrist, on 28 September.
Dr Sullivan provided the agency with a report dated 26 October 2011. She reported that the Practitioner had been using Antabuse "and finds that this is extremely helpful. He has been totally abstinent from alcohol for several weeks". Dr Sullivan expressed the opinion that the Practitioner was "currently fit to practice" and said that she would continue monitoring the Practitioner regularly and continue his present medications.
Dr Sullivan suggested "that there need not be any other condition for his registration, other than that he attends his treating doctors and psychologist". She said that the Practitioner was "extremely insightful and cooperative with all requests".
The Health Committee of the Medical Board of Australia met on 6 December 2011 and considered the Practitioner's self-notification. It decided that the Practitioner had an impairment as defined in the National Law by way of depression, anxiety and recent alcohol abuse "that detrimentally affects or is likely to detrimentally affect his capacity to practice medicine". The Commission decided to accept a schedule of undertakings from the Practitioner pursuant to Section 178 (2)(b) of the National Law. It wrote to the Practitioner on 9 January 2012 forwarding a copy of the undertakings and offering to accept his agreement to them. The Practitioner agreed to the undertakings on 17 January 2012.
Those undertakings are: 1. I agree to attend for Carbohydrate Deficient Transferrin, Liver Function Testing and Mean Corpuscular Volume testing, as and when required by the Board, in accordance with the Board's protocol. 2. I agree to the exchange of information between the Board and pathology providers. 3. I agree to submit to the medical supervision of one experienced general practitioner (who is not a member of my family or a professional colleague) who I will attend at least every 6 months for review. The GP will prescribe and supervise all medications other than those prescribed by treating specialists. I agree to keep the Board informed of the name of my treating GP, and authorise the exchange of information between the Board and my GP, including non-compliance with treatment, medications, and if there is a significant change in my health status. Should I attend another GP for any reason I agree to consent to that GP communicating with my regular GP. 4. I agree to attend for treatment by a psychiatrist of my own choice at my own expense. I agree to attend at a frequency, and for as long as, that psychiatrist determines. I agree to authorise the exchange of information between the Board and the psychiatrist, including non-compliance with treatment, medications, and if there is a significant change in my health status. 5. I agree to recruit a professional colleague (to be approved by the Board) to act as a workplace supervisor. I agree to advise a prospective employer and supervisor of my medical condition and provide those persons with a copy of these undertakings. I also agree to authorise the Board to provide this information to those persons if it is deemed in the interests of patient safety. I agree to authorise the supervisor to provide work progress reports to the Board in a format and at a frequency required by the Board. 6. I agree to notify the Board, my supervisor and my treating psychiatrist immediately I am aware that there is a material change in my health. 7. I agree to authorise the Board to release information regarding my progress to my employer, supervisor, treating psychiatrist and treating GP.
The Director of the Paediatric Department in the hospital where the Practitioner was working in the period from January to April provided a progress report to AHPRA on 10 April 2012 advising that the Practitioner's performance was satisfactory "in all areas".
In her report dated 7 June 2012 to AHPRA Dr Sullivan said that she had seen the Practitioner that day in her rooms and her report included the following information: 1. "I feel that he had recovered entirely from the adverse effects of his medication regime, which I alerted you to on 15 May 2012" 2. "My reason for saying that he is much improved is that of mental state examination I find that this mood is stable and euthymic. There is no disturbance of neurovegetative features and his thinking was optimistic. There was no abnormality of cognitive functions" 3. "He has made an extremely productive use of his 2 weeks vacation. Dr Rixon engaged in an exercise program and also hard physical labour helping his father on a farm". 4. "Dr Rixon had returned to clinical duties over the last 2 weeks and notices that he is actively taking pleasure in clinical competence and advise that he has no anxiety in handling very the difficult and distressing cases that sometimes occur in the paediatric intensive care unit". 5. "My view is that Dr Rixon has stabilised and will continue to function well".
The Practitioner was seeing Dr Sullivan regularly at about 3 weekly intervals. There had been no missed appointments. He was also receiving Cognitive Behaviour Therapy from a psychologist. He was continuing on a mild anti-anxiety medication, which was also assisting his sleeping pattern for shift work. Dr Sullivan concluded "I am very well satisfied with Dr Rixon's return to good functioning and will keep you informed of any further developments".
On the night of 12 June 2012, the Practitioner was at work and was extremely busy. There was an incident involving the Practitioner and other staff. Dr Sullivan reported to AHPRA on 5 July 2012. She said "the Practitioner had had a period of time away from work after there was some inter-personal difficulties with other staff". She found on review that there was no evidence of any "Mood Disorder" and reported that he was "showing excellent insight and judgment". She reported that the Practitioner had been assessed by a neuropsychologist the day before to exclude any possibility of "any impulsivity secondary to the head injury that he had last year". She concluded that there were no concerns whatsoever about his neuropsychological functioning.
It appears that the Practitioner had been absent from work from 12 June until 5 July 2012. Dr Sullivan noted in her report that he was to take holidays from 8 July to 22 July 2012 and said that she had given the Practitioner a letter to say that he was fit to resume professional duties probably from 23 July 2012.
Mr Dent is a clinical psychologist and clinical neuropsychologist. Dr Sullivan had referred the Practitioner to Mr Dent for a neuropsychological assessment, which took place on 4 July 2012. The Practitioner persevered with the assessment process and tasks over a period of 4 hours. Mr Dent reported that this was done "without significant fatigue or distress" and that the Practitioner was cooperative throughout. He also reported: 1. There were no problems with impulsivity, disinhibition or in appropriate behaviour during testing. He approached tasks with thought and judgment and seemed aware of limitations".
As regards current symptoms, Mr Dent said that the Practitioner had no reported cognitive problems, apart from not feeling "as sharp as 20 years ago."
The Practitioner also reported to Mr Dent that he had a number of incidents at work where he was reported to be aggressive with other staff and believed that this was out of character for him. The Practitioner's partner was interviewed on 7 July 2012 by Mr Dent and she was not aware of any significant changes in personality which could have been attributable to the accident. The Practitioner told Mr Dent that he had abstained from alcohol since the injury in August 2011.
Mr Dent administered a Depression Anxiety and Stress Scale Questionnaire, the results of which indicated mild symptoms of depression during the 7 days prior to the assessment.
Mr Dent also administered "tests to assess speed and capacity of information processing, intellect, language, memory, new learning, visuoconstruction and executive functioning (problem solving, mental flexibility, extraction, verbal fluency). Mr Dent's conclusions included: 1. "Most test scores were either well within or higher than expected for his age and education. The only exception was associated with mild lowered scores on tests of speed of information processing relative to his superior verbal processing abilities. 2. Specifically, there were no significant problems with capacity of information processing, language, intellect, memory / new learning, visuoconstruction and executing functioning… He demonstrated exceptional intellectual strengths (overall FSIQ in the very superior range) particularly on tests verbal processing. His memory scores were generally consist with his intellectual ability. He also demonstrated stamina during the assessment and preserved with tasks over a period of 4 hours without excessive fatigue. 3. There were no significant problems noted on this assessment which may suggest that he was cognitively unsuitable to return to work. There were no observed problems with social inappropriateness, disinhibition or anger noted during testing. There was no indication from collateral information from his partner to suggest significant personality changes as a result of the accident".
The Practitioner's general practitioner, Dr Angelos, reported to AHPRA on 30 July 2012. He said that he had no current concerns about the Practitioner, he had attended Dr Sullivan regularly for reviews and medication, and he had ceased taking Antabuse. He said that the Practitioner was injecting Reandron every 3 months under the direction of his endocrinologist.
Dr Slater, the Head of the Paediatric Department at the Royal Children's Hospital, Brisbane, reported on the Practitioner's work performance by a written report to AHPRA on 6 August 2012. He reported that since his previous report the Practitioner had 2 periods of sick leave of 2 weeks each. He said that prior to these he had had difficulties with work and staff interactions, but "this has now improved". He indicated that on all nominated measures of performance, his performance was now satisfactory.
Dr Slater provided AHPRA with a similarly positive report on 18 October 2012.
When Dr Sullivan reported to AHPRA on 12 December 2012, in response to answers from AHPRA she said that: "Dr Rixon is still suffering some Major Depression, although it is in remission and under good control. He also is suffering from some ongoing issues with Anxiety, but, again, these are generally under good control".
She reported that he was currently continuing to take medication, some of which was to help with sleeping. Dr Sullivan also said that she was currently looking for non-pharmacological ways for Dr Rixon to reduce his anxiety. She said: "There is the possibility that he may commence some hypnosis by a registered psychologist, but this cannot be organised until probably early next year"
She proposed to continue reviewing the Practitioner monthly.
Dr Slater reported to AHPRA in relation to the Practitioner's work progress for the period 19 October 2012 to 2 January 2013. He reported that the Practitioner was working 76 hours per fortnight and his performance was satisfactory in all areas.
On about 29 April 2013, the Practitioner relocated to Sydney to work with the Newborn and Paediatric Emergency Transport Service (NETS NSW). It was his intention to work there for 12 months and then apply with an anaesthetics position. Dr Sullivan saw the Practitioner for review on 11 April 2013 and described his clinical situation as "still very stable". Dr Sullivan said that she understood that he had not been working for the last couple of months after his contract at the Royal Children's Hospital was no longer renewed.
The Practitioner told Dr Sullivan that the failure to renew the contract was due to the fact that he was concerned to have had enough experience in Paediatric Intensive Care and he now wished to pursue anaesthetic training, "it was time to move positions".
The Practitioner also told Dr Sullivan that the position would allow him to have suitable on-call time when he could study for his anaesthetic exams. She said that he was "very willing" to take up suggestions for suitable Psychiatrists and Cognitive Behavioural Therapists in Sydney.
Upon his move from Queensland to NSW in 2013, AHPRA briefed the Medical Council of NSW in relation to the history and the undertakings current on the Practitioner's registration. The Medical Council of NSW was then to assume management the Practitioner's registration and compliance with the undertakings.
On 10 September 2013 a pharmacist reported that the Practitioner had presented and requested dispensing of prescriptions he had written for himself Diazepam tablets and Quetiapine. The Diazepam was provided, but the other prescription could not be provided as the medication was not in stock.
Dr Robert Fisher was appointed by the Medical Council of NSW to assess the Practitioner and determine whether he was suffering from an impairment within the meaning of the National Law. He saw the Practitioner at his rooms on 23 September 2013.
The Practitioner told Dr Fisher he had been working for the Newborn and Paediatric Emergency Transfer Service ("NETS") for 4 months and that he loved the work, and he would like to be a Paediatric Anaesthetist. That would require a further 3 ½ years traineeship at least. The doctor noted that the Practitioner had had an adverse reaction to Antabuse and ceased taking this prior to July 2012.
He had a general practitioner, Dr Sinha, and Dr Sinha had referred him to Dr Rosenman, a psychiatrist, and he would see Dr Rosenman that week. Dr Sinha had also referred him to a psychologist, Ms Condalepos and he had an appointment to see her in the week beginning 30 September.
The Practitioner told Dr Fisher that his main worries were that he had mixed anxiety and depression and felt that the anxiety stops him from being able to cope with the depression and that he had a lacked a mental health team in Sydney compared with the team he had in Brisbane.
He had been in a de facto marriage for 2 months and he had ended the relationship on acrimonious terms 6 months before the assessment. He had formed the view that they were not good for each other and that the relationship was destructive. His former partner attempted suicide in February 2013. It was the third attempt in a 2 year period. He told Dr Fisher that she had blamed the Practitioner for her suicide attempt. He said that she would not respond to any communications from him.
He also said that he had a problem with alcohol, but he thought that it was not a "current problem". He said to Dr Fisher "I have difficulty preparing for and sitting exams, and this has been a problem for me since I graduated since I graduated with my medical degrees".
He told Dr Fisher that he had a history of alcohol abuse from age 17 and drinking to relieve anxiety. He said his maximum alcohol intake was one third of a bottle of spirits if he was working the next day, and otherwise half a bottle of spirits. He said that he was drinking virtually every night for long periods, but had reduced the frequency of drinking over the over the past few months in his new job. He had reduced his intake to half a bottle of wine if he was working the next day, and otherwise a whole bottle of wine.
He told Dr Fisher that he doesn't tend to drink to excess when he is in the company of others. He said that although he believed that he had developed tolerance, he had never had significant withdrawal symptoms. He denied having lost memory of what he had said and done during a period of intoxication.
He also conceded that he had had serious complications of his drinking including: 1. A few months ago he fell whilst intoxicated and sustained a head injury with CT evidence of bi-frontal cerebral haemorrhages; and 2. He was charged 5 months ago for driving with a high range prescribed concentration of alcohol (0.14) in his blood.
The Practitioner acknowledged to Dr Fisher that the anxiety, depression and alcohol abuse had all contributed to impair his clinical performance. He acknowledged that he suffered from hangovers and took 6 days off work in 2012 and 2 days off in 2013 because of them. His longest period of abstinence from alcohol was 12 months from July 2008 to July 2009.
Dr Fisher also reported: "He said that he intended having 5 weeks of abstinence during October, but otherwise, has been aiming to drink in a controlled fashion, albeit that his consumption is still clearly in the hazardous range".
He said that his mood had ranged from 3 -7 over the previous month, but his "modal mood" was closer to 7 out of 10". The Practitioner said that he had been irritable as well as depressed when he was living in Brisbane, but since going to Sydney and engaging in work that he enjoyed with people that he liked, he felt much happier and was not irritable any longer.
He also told Dr Fisher that he would only be able to sleep if he was taking Seroquel as 200mg at night. He said that otherwise he would be too anxious to sleep and could often not sleep for 1 week at a time, until he became so exhausted that he started to sleep again.
He said that he had lost 25kg and said that his sense of energy during the day as much improved. He was getting back into running 10kms on a regular asis. He said his appetite varied and there were times when he would forget to eat all day.
Dr Fisher reported to the Medical Council on 26 September 2013 and his report concluded with the following "Opinion and Recommendations";

Opinion& Recommendations I believe that Dr Rixon has a very serious alcohol abuse/dependence problem, and that he is suffering from an impairment as a result. In addition, he reports symptoms of a Mixed Anxiety Depressive Disorder, with anxiety and accompanying panic attacks, which have been severe and disabling. I believe that Dr Rixon should be inducted into the Impaired Registrant's Programme of the Medical Council of New South Wales, under the usual conditions for a doctor found to be impaired, as a result of alcohol abuse and dependence. As it would appear that the depression and tendency to abuse alcohol may be driven by his very high base levels of anxiety, and exacerbated further by his tendency to panic attacks, I believe Dr Rixon's treatment for his anxiety and depression requires review. For him to be rating his level of anxiety at 9 out of 10 most of the time, and for his mood to be as low as 4 out of 10 at consultation, despite being on treatment with substantial doses of both Venlafaxine and Quetiapine, indicates that he is not in remission and, whilst in this state, he remains at a considerable risk of lapsing into alcohol abuse. I believe that a review of his medication and a focus on cognitive behavioural techniques of managing anxiety and panic attacks is indicated. I believe that Dr Rixon should commit to complete abstinence from alcohol and should be seeing regularly a Psychiatrist with drug and alcohol expertise. It is of some concern that, despite consuming hazardous levels of alcohol on a regular basis, Dr Rixon's CDT results have reportedly not been elevated. I believe that EtG testing, thrice-weekly, would be more appropriate than CDT testing. Dr Rixon made the point that having conditional registration - which he would do if he went into the Impaired Registrant's Programme, makes it very difficult for him to obtain a training position as a Paediatric registrar again, but he was cognisant of the fact that he has ended up in his current complicated situation as a direct result of alcohol abuse, as a response to being anxious and depressed.

On 28 October 2013 the Medical Council of NSW wrote to the Practitioner advising that a decision had been taken after consideration of Dr Fisher's report to hold a Registrants Panel Inquiry ("IRP") to enquire whether the Practitioner's health problems affect or have the potential to affect, his capacity to practise medicine. The Practitioner was appointed for 18 November 2013. However the enquiry did not take place because the letter was sent to the wrong address and the Practitioner did not receive it. The IRP reconvened to meet with the Practitioner on 2 December 2013 and the documents were sent to the Practitioner at his new address at Strathfield.
The enquiry was held on 2 December 2013 and the Practitioner attended. The decision of the enquiry was released on 3 December 2013, and notice given to the Practitioner. The enquiry imposed the following conditions on the Practitioner's registration:

Public Practice conditions 1. To nominate a supervisor within the next 14 days or prior to commencing employment, to be approved by the Medical Council of NSW, to monitor and review his clinical practice and compliance with Public Conditions in accordance with Level 2 Supervision as contained in the Council's protocol. The supervisor is to be provided with a copy of the practice related related conditions. All costs associated with the supervision arrangement are to be borne by the practitioner. The practitioner is to ensure that: 1. He and the supervisor meet on a fortnightly basis for at least one hour, the first meeting to occur within one fortnight of being advised by the Council; 2. At each meeting they review his work progress and address any relevant work-related or professional matters; 3. At each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council; 4. The supervisor forwards to the Council, initially on a quarterly basis, a Supervision Report in a format prescribed or approved by the Council; 5. The supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, clinical performance, health or if the supervisor relationship ceases. The practitioner authorises the supervisor to provide such information to the Council; and 6. In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship. 1. To work only in a hospital position approved by the Medical Council of NSW. 2. To obtain Medical Council of NSW approval prior to changing the nature or place of practice. 3. To authorise the Medical Council of NSW to notify his employer/s of any issues arising in relation to compliance with any of his conditions.

Private Health conditions 1. Not to prescribe for self-medication; 2. To attend for treatment by a general practitioner of his choice, at a frequency to be determined by the practitioner and the treating practitioner. To authorise his treating practitioner to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change); 3. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise his treating psychiatrist and inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change); 4. To take any medication prescribed by his treating practitioners; 5. That the extent of his professional medical duties is to be guided by his health status and the advice of his treating & Council Appointed Practitioners; 6. To abstain completely from the consumption of alcohol; 7. To attend for twice weekly (Ethyl Glucuronide) (EtG) testing in strict accordance with the Medical Council of NSW protocol (a copy of which is included in the Participant's Handbook). Results of EtG testing are to be forwarded to the Council appointed and treating practitioners and to the Council. He understands that such testing will be at his expense; 8. To attend for review by the Council Appointed Psychiatrist on a three monthly basis or as otherwise directed by the Medical Council of NSW, at the Council's expense; 9. To attend a Review Interview at the Council in three months or as otherwise directed by the Medical Council of NSW; and 10. To authorise the Medical Council of NSW to forward copies of the Impaired Registrants Panel report, subsequent Council Review Interview reports and other information relevant to his impairment to the Council Appointed practitioners and his treating practitioners.

Dr Rosenman reported to Dr Sinha on 3 January 2014. It is a report of less than 2 pages. Dr Rosenman reported that the Practitioner told him he was "suffering from primarily anxiety, depression and recently past alcohol use". He "had not been drinking for 1 month, but he still felt miserable "buried in circular worry and pessimistic anticipation, and anhedonic, avoidant and prone to deep descents of mood".
He told Dr Rosenman that his work as a retrieval doctor in the Paediatric Emergency Service involved "a lot of sitting around waiting for emergencies, a waiting that compounds his symptoms. It is clear to him that when he is occupied by the urgent work, symptoms fall away and he is restored to his normal sense of personal engagement effectiveness".
The Practitioner told Dr Rosenman he had been susceptible to anxiety for most of his adult life and it was "manifest only as a shyness and social self-consciousness". He had suffered from panic attacks and this had occurred since 2000. The anxiety and depression were a constant problem until he came to Sydney in 2004, and then "alcohol became a regular self-treatment and increased in amounts so that it dominated the problem, interfered with his personal and professional life, and culminated in a fall in 2011…". When he subsequently resumed drinking after 1 year, all aspects of his life deteriorated again. He was continuing to take Seroquel 200mg at night and often during the day, and Pristiq 200mg daily.
Dr Rosenman concluded that he needed to observe the Practitioner further and continue to disentangle his problems. He said "it is difficult to confidently disentangle the threads of the condition. Although the problems clearly started form the panic episode in 2000 (and he is concomitant anxiety depressive continuation) many of the problems relate to his alcohol use. We will only see clearly with time and abstinence how much of the anhedonia, continuing anxiety and demoralisation will recover for the condition. When he reduced the Pristiq he experienced the intense reappearance of affective symptoms, but it is not clear if these were recurrent symptoms of due to withdrawal effects. The current does of Seroquel is higher than I think is advisable for this condition. I have made no changes to the Pristiq does, but I have asked him to reduce the Seroquel does and spread a small does out during the day to better match the medicine to the continuing anxiety experience"
The Medical Council of NSW subsequently wrote to the Practitioner confirming the conditions that had been imposed as a result of the IRP enquiry. It also provided the Practitioner with a copy of the report of the enquiry.
In an email dated 21 January 2014, the Practitioner notified the Medical Council of NSW that he had not commenced EtG testing as he was waiting to receive a pathology request form from the Medical Council of NSW. The Medical Council wrote to the Practitioner on 24 January 2014 and reminded him that it was his responsibility to organise the testing and set out 3 alternative procedures that he could adopt. The letter required him to notify the Medical Council by 30 January 2014 of the procedure he was adopting. The Practitioner failed to do so.
Two attempts were made to contact him by telephone and on 5 February 2014 a message was left for him on voicemail inviting him to contact the Council. By 7 February 2014 he had not done so.
On 7 February 2014 the Medical Council wrote to the Practitioner notifying him that because of his failure to confirm that he had commenced EtG testing that the matter had been placed before the Council's Health Committee to be considered at its next meeting on 18 February 2014. The letter asked that he contact the Medical Council as soon as possible to discuss the arrangements. The Practitioner did not do so.
At the meeting of the Health Council on 18 February 2014, there had been a telephone advice from the Practitioner that he would commence the EtG testing on 17 February 2014. The Committee resolved to reconsider the matter at its next meeting on 15 April 2014 if he had not commenced the testing.
A Medical Council letter dated 5 March 2014 notified the Practitioner of the outcome of the of the meeting and also warned him that it appeared that he was in breach of Health Condition 7 on his registration, and that this breach may result in the Council convening proceedings under Section 150 of the National Law and/or referring a complaint to the Health Care Complaints Commission.
The Medical Council attempted to contact the Practitioner by telephone on 2 occasions on 27 March 2014 and left a message on his voicemail for him to return the call.
Concord Hospital, which was the facility which was to conduct the EtG, provided a report to the Medical Council on 27 March 2014 advising that there had been no test results for the Practitioner after 6 March 2014.
A Medical Council staff member left a message on the Practitioner's mobile phone number on 2 April 2014 for him to call her. He did not do so. The same staff member sent an email to the Practitioner on 7 April 2014 citing that he had not been responding to messages and asking him to contact her by telephone or email. The Practitioner replied by email on 8 April 2014. He said that he would listen to his message bank messages and respond.
The Medical Council of NSW subsequently convened a Section 150 hearing for 15 April 2014. The Practitioner failed to attend. The decision of the Section 150 hearing was to suspend the Practitioner's registration. He was notified accordingly.
Dr Rosenman, the treating psychiatrist, reported to Dr Sinha on 2 May 2014. In his report dated 3 January 2014 he had recommended that he review the Practitioner in 3 weeks time. However, the Practitioner did not attend on Dr Rosenman again until 2 May 2014, 4 months after the initial appointment.
The Practitioner told Dr Rosenman when he saw him on 2 May 2014 that he has had "drifted back into drinking". He claimed that the amounts were moderate. He told Dr Rosenman that he had been suspended by the Medical Council because of his failure to provide the EtG urine tests which he "would have failed in any case".
Dr Rosenman commenced the Practitioner on Antabuse 2 tablets a day in addition to his existing medication. He said "he is psychologically vulnerable since supports are few and the drinking has exacted its psychological toll. I think he will stop drinking at this point and I will see him again within 3 weeks".
The Medical Council reported the Practitioner's failure to comply with the conditions of his registration to the Health Care Complaints Commission by letter dated 9 May 2014 as a complaint.
The Practitioner says in these proceedings that he ceased using alcohol on 7 June 2014 and has abstained since then.
The Health Care Complaints Commission advised the Practitioner by letter dated 13 June 2014 that it was investigating the complaint from the Medical Council. The Practitioner attended for a review by Dr Fisher on 3 July 2014.
The Practitioner told Dr Fisher that he had failed to attend the IRP assessment as he had not opened the envelope which he said was "due to his anxiety about what it would contain". He told Dr Fisher that he now opens every letter that he receives. He also told Dr Fisher that he had completely abstained from alcohol since February and that he had twice weekly EtG testing since mid-April 2014 and the results received were within the acceptable range.
Dr Fisher's report extends to 13 pages and concludes with the following diagnostic conclusions and opinions and recommendations:

Diagnostic Conclusions 1. On the history presented and as I found Dr Rixon at consultation I believe he has the following current problems: 1. Probable recurrent Major Depressive Disorder currently in significant remission whilst taking Pristiq combined with Seroquel. 2. He says that his anxiety levels have reduced markedly and that he has not had any panic attacks or suffered any other psychiatric symptoms since I last reviewed him. 3. His alcohol abuse and dependence appears to be in remission. 4. His hypertension is under control whilst his weight is reduced and he is keeping fit by running. 5. He remains unattached emotionally but is exploring relationships on an Internet dating website. 6. He remains unemployed.

Opinions & Recommendations 1. It would appear that Dr Rixon is making satisfactory progress In terms of remaining abstinent from alcohol consumption or the use of any other inappropriate substances. 2. is Mid Anxiety Depressive Disorder with Panic Attacks also seems to be responding better to medication combined with psychotherapy and regular exercise. 3. Dr Rixon might benefit by attending the Doctors in Recovery group at the Northside Clinic which he may find to be more useful to him than the general AA meetings he attended in Queensland. 4. I believe Dr Rixon as he presents now is in a fit state to return to medical practice as long as it is under the strict conditions which usually apply in these circumstances.

78. On 16 July 2014 the Practitioner sent an email to the Medical Council advising "I won't be able to provide a urine EtG sample tomorrow or Friday, as I will be away camping for 4 days. I will continue to provide samples Monday and Thursdays as of next Monday the 21st". The Medical Council acknowledged his email and provided him with a copy of the protocol for EtG testing. It also drew his attention to the items in the protocol "Absence from testing" and the requirement that he give at least 5 days notice beforehand if he was not going to attend for an EtG testing occasion.
On 29 July 2014 the Practitioner sent an email to the Medical Council and asked about the testing procedures if he were week to have a 2 week holiday and was located in France. On 1 August 2014 the Medical Council replied providing another copy of the EtG testing protocol and the requirement to give notice at least 5 business days before any anticipated absence from a testing occasion.
The HCCC wrote to the Practitioner on 18 August 2014 advising of the complaint received from the Medical Council and the investigations by the HCCC. It notified him of proposed proceedings in respect of breach of conditions of his registration and impairment. It detailed the evidence in relation to those matters. It invited any submissions by the Practitioner under Section 40 of the Health Care Complaints Act 1993. The solicitors for the Practitioner made submissions on his behalf on 15 September 2014.
On 2 September 2014 the Practitioner emailed the Medical Council and advised that after having had difficulties having these tests done with the pathology firm, he had changed to a different pathology firm. He detailed the difficulties that he had had. He said that there would be as a result "a week of missed specimens".
On 8 September 2014 the Practitioner notified the Medical Council that he would be away on holidays on 15 September 2014 and would therefore be unable to provide a specimen for the EtG screening.
That day, the Medical Council wrote to the Practitioner reminding him of the recommendations in the Section 150 written reasons that he should "for a period of at least 8 weeks, fully comply with the EtG Testing Program". It said that a review of his recent test results indicated that he had not been attending twice weekly testing in accordance with the Council's protocol. He was reminded that testing was to be provided on Mondays and Thursdays and it was not acceptable to present on other days. A copy of the Medical Council's protocol was again provided to the Practitioner.
Dr Rosenman saw the Practitioner again on 5 September 2014. He reported on 9 September that he had, since the initial appointment of 3 January 2014, seen the Practitioner on 24 January 2014, 2 May 2014, 23 May 20134, 16 June 2014, 25 July 2014, and 5 September 2014. He said that these attendances were at intervals requested by him, rather than the Practitioner. He said that when he saw the Practitioner in May 2014 he was drinking heavily again and there had been a "serious deterioration of his mood and anxiety".
He said "with abstinence there has been a gradual recovery of mood punctuated by one episode of drinking during suspension when he could see no point in abstinence".
He said that the Practitioner had been abstinent from alcohol since June 2014 and attending a program that required twice weekly EtG tests. Those results had been sent to him and had been uniformly negative. He said that after this prolonged abstinence "there has been a significant and lasting improvement in his mood and capacity".
He said that on 5 September 2014 the Practitioner was "cheerful, reported that he was exercising and again socialising, and felt that psychological symptoms were under good control". He said "abstinence is always fragile in these conditions, but there is much that keeps Dr Rixon entrained in his abstinence and it is bolstered by regular testing to which he is committed".
Dr Rosenman said that the Practitioner was committed to the EtG testing and it should continue. He said the Practitioner was taking Desvenlafaxine for his anxiety. He said "now that he is not drinking, this seems to be effectively controlling the susceptibility to anxiety and depression".
Dr Rosenman concluded: "Due to his long history of professional competence and his unhesitating commitment to ensuring sobriety, I would support his reinstatement on the conditions of continued contact and urine testing. There is reasonable concern is (sic) that continued drinking would eventually intrude on his competence and capacity. This reasonable concern needs to be answered by observation".
On 29 September 2014 the Head of the Diagnostic Pathology Unit at the Concord Hospital wrote to the Practitioner advising him that because of his unpaid accounts totalling $790.05 for EtG testing, the hospital had decided to suspend any testing on his samples until such time as he paid the outstanding account.
The Medical Council wrote to him on 16 October 2014 reminding him, in relation to the outstanding account to Concord Hospital, that he had the responsibility to pay for the testing. They also said "if you are unable to make full payment at the present time, please discuss arrangements to pay the amount by instalments".
The letter asked the Practitioner to contact the Medical Council by Thursday 30 October 2014 advising that the account had been paid or arrangements had been made to pay the account.
The Medical Council also wrote to the Practitioner on 17 October 2014 in relation to his attendance on Dr Fisher, the Council-appointed psychiatrist. It noted that he had attended for review by Dr Fisher on 3 July 2014. It reminded the Practitioner that the conditions of his registration were not compulsory whilst his registration was suspended. However, it suggested that he might wish to comply with the recommendations and the reasons for the decision made under Section 150. Those recommendations included full compliance with the EtG testing program for at least 8 weeks.
On 22 October 2014 the Practitioner notified the Medical Council that he would be holidaying in Brisbane from Sunday 26 October 2014 to Wednesday 12 November 2014 and would be unable to provide specimens for the EtG testing on 27 & 30 October 2014, and 3, 6, and 10 November 2014.
The reply requested him to substantiate his holiday by boarding passes, hotel receipts etc upon his return, and also reminded him of the recommendations in the Section 150 decision that prior to lodging any application for a review of his suspension he must fully comply with the EtG testing program for at least 8 weeks. He was also reminded that his testing results from Concord Hospital had been withheld because of the unpaid account. He was asked to provide confirmation that he had contacted the hospital to "clear the outstanding account".
On 29 October 2014 the Practitioner's solicitors wrote to the Medical Council of NSW making application under Section 150A(1)(a) of the National Law for a review of the suspension of the Practitioner's registration. A staff member of the Medical Council telephoned the Practitioner's solicitors on 11 November 2014 advising that the application was unlikely to be considered by the Council in its current form because of the following deficiencies: 1. The Section 150 delegates made a series of recommendations for Dr Rixon to comply with before he made an application for review under Section 150 of the National Law; 2. Dr Rixon's failure to strictly comply with the Council's EtG Protocol, despite repeated advice from the Council's Secretariat; 3. A positive test result had been received for the sample provided on 15 August 2014; 4. There was no report from his nominated supervisor (due quarterly) post his suspension; and 5. Sydney South West Pathology Service had withheld results due to non-payment by Dr Rixon.
The officer asked the solicitors for the Practitioner to discuss the matter with their client to confirm whether he wished to proceed with the application at this time, or would prefer to withdraw it and file an application at a later date.
It was also explained to the Practitioner's solicitors that the Practitioner's review by Dr Fisher in July 2014 was without the knowledge or consent of the Council, and if and when the review application was to be considered, the Council would invite the Practitioner to be assessed by Dr Fisher again.
On 17 November 2014 the Practitioner contacted the Medical Council. He spoke with a staff member and advised that he was still in Queensland. He asked what he needed to do let the Council know. It was suggested that he send an email. During the course of the conversation the Practitioner wanted to know what he needed to do to have his suspension lifted. He was again reminded of the recommendation of the Section 150 Delegates, that before he seeks a review he should attend EtG testing for 8 weeks "in strict compliance with the Council's protocol". It was emphasised to him that this means that he needs to attend on scheduled testing days consistently for 8 weeks and obtain clear results.
By 24 November 2014 the Practitioner still had not paid the pathology fees to Concord Hospital and the account stood at $1,167.90. The Hospital wrote to him again regarding unpaid fees and advised that legal representation had been obtained to recover the outstanding amount.
The solicitors for the Practitioner subsequently advised the Medical Council that the Practitioner intended to remain in Brisbane where he had family support and wanted to know how he would arrange EtG testing in Brisbane. The Medical Council took advice from staff at Concord Hospital and then informed the solicitors that the best option would be to arrange EtG testing through a public hospital in Brisbane, and the hospital would be familiar with couriering inter-state and would be cheaper. The solicitors were also advised the Practitioner needed to ensure that the testing was done in accordance with the Council's protocol and the samples were couriered to Concord Hospital for testing.
The Medical Council sent an email to the Practitioner on 8 December 2014 about the unpaid fees of Concord Hospital and requested that the Practitioner attend to this urgently. They also suggested that he approach the Medical Benevolent Association for assistance if he was having financial problems that were preventing him paying the bill.
On 11 December 2014 the solicitors for the Practitioner notified the Medical Council that they had been instructed by the Practitioner to withdraw the application under Section 150A.
The HCCC filed its application initiating these proceedings on 26 March 2015. The hearing was originally set down for 4 days from 17 - 20 August 2015, but was completed on 17 August 2015. Written submissions were provided by the Applicant at the hearing and supplementary written submissions were provided by the Applicant on 20 August 2015. The Practitioner provided written submissions in answer on 24 August 2015, and the Applicant then provided submissions in reply on 25 August 2015.

The Evidence

The evidence comprises: 1. Complaint and Application for Disciplinary Findings; 2. Reply by Practitioner filed 3 August 2015; 3. Certificate of Registration Status from AHPRA; 4. Certificate of Registration Status from Medical Council of NSW; 5. Letter of Complaint from the Medical Council of NSW dated 9 May 2014; 6. Section 150 Written Reasons for Decision dated 11 June 2014; 7. HCCC letter to Dr Rixon dated 13 June 2014; 8. Email from Dr Rixon dated 18 June 2014 attaching Curriculum Vitae; 9. Commission's section 40 letter to Dr Rixon dated 18 August 2014; 10. Section 40 response dated 15 September 2014 attaching results of Dr Rixon's EtG testing from 24 June 2014 to 26 August 2014; 11. Report from Dr Rosenman, Dr Rixon's treating psychiatrist, dated 9 September 2014; 12. Letter from the Council to Dr Rixon dated 24 July 2013; 13. File note regarding self-prescribing dated 10 September 2013; 14. Letter from Council to Dr Rixon dated 28 October 2013; 15. File note regarding Impaired Registrants Panel Inquiry appointment dated 18 November 2013; 16. Letter from the Council to Dr Rixon dated 20 November 2013; 17. Notice of Impaired Registrants Panel Inquiry Decision dated 3 December 2013; 18. Letter from the Medical Council of New South Wales to Dr Rixon dated 10 December 2013; 19. Impaired Registrants Panel Decision dated 11 December 2013; 20. Letter from the Council to Dr Rixon dated 12 December 2013; 21. Emails between the Council and AHPRA regarding CDT results dated 17 and 18 December 2013; 22. Letter from the Medical Council of New South Wales to Dr Rixon dated 10 January 2014; 23. Letter from the Medical Council of New South Wales to Dr Rixon dated 10 January 2014; 24. Email from Dr Rixon to the Medical Council of NSW dated 21 January 2014; 25. Emails between the Council and Dr Rixon regarding his EtG testing dated 21 and 24 January 2014; 26. Letter from the Medical Council of New South Wales to Dr Rixon dated 24 January 2014; 27. File note written by Helen Durick at the Council regarding Dr Rixon's appointed Supervisor dated 31 January 2014; 28. File note written by Helen Durick at the Council regarding Dr Rixon's EtG testing dated 5 February 2014; 29. Letter from the Council to Dr Rixon dated 7 February 2014; 30. Letter from the Council to Dr Rixon dated 5 March 2014; 31. File note written by Jane Eldridge at the Council dated 27 March 2014; 32. Response from Concord Hospital confirming no record of any EtG results from Dr Rixon dated 27 March 2014; 33. File note written by Jane Eldridge at the Council dated 2 April 2014; 34. Email from Jane Eldridge to Dr Rixon dated 7 April 2014; 35. Emails between Jane Eldridge and Dr Rixon dated 7 & 8 April 2014; 36. Work Progress Reports 6 February 2012 to 10 April 2012, 1 May 2012 to 6 August 2012, 1 August 2012 to 18 October 2012, 19 October 2012 to 2 January 2013, & 24 April 2013 to 10 July 2013; 37. Report from Dr Fisher (Council appointed psychiatrist) dated 26 September 2013; 38. Report from Dr Fisher (Council appointed psychiatrist) dated 3 July 2014; 39. Medical Council of NSW Urine Ethyl Glucuronide (EtG) Testing Protocol; 40. Court Brief from Queensland Police Service with facts of Dr Rixon's drink driving charge; 41. Letter to the Commission from Dr Rixon's Supervisor, Dr Kathryn Browning Carmo dated 16 July 2014; 42. Work Progress Report for Dr Rixon from his Supervisor, Dr Kathryn Browning Carmo dated 31 January 2014; 43. Work Progress Report for Dr Rixon from his Supervisor, Dr Kathryn Browning Carmo dated 5 February 2014; 44. Work Progress Report for Dr Rixon from his Supervisor, Dr Kathryn Browning Carmo dated 14 February 2014; 45. Work Progress Report for Dr Rixon from his Supervisor, Dr Kathryn Browning Carmo dated 28 March 2014; 46. Work Progress Report for Dr Rixon from his Supervisor, Dr Kathryn Browning Carmo dated 23 April 2014; 47. Medicare records for pharmaceutical items prescribed by Dr Rixon from 1 June 2013 to 19 June 2014; 48. Dr Rixon's patient file from psychiatrist, Dr Sullivan (2011 - 2012); 49. Report of Dr Rixon's neurological assessment dated 15 July 2012; 50. Dr Rixon's patient file from GP, Dr Angelos as at 26/06/14; 51. Dr Rixon's patient file from psychologist, Dr Walters (2011); 52. Dr Rixon's patient file from psychologist, Ms Hirakis (2012); 53. Dr Rixon's patient file from GP, Dr Sinha (2013 - 2014); 54. Dr Rixon's patient file from psychiatrist, Dr Rosenman (2013 - 2014); 55. Letter to the Commission from Mina Candalepas, psychologist, dated 11 July 2014; 56. AHPRA file note regarding phone call from Dr Bruce Lister (Paediatric Intensive Care Specialist at Mater Hospital) dated 19 August 2011; 57. AHPRA file note re Dr Rixon dated 9 September 2011; 58. Letter from Dr McFarlane (Director Paediatric Critical Care and Anaesthesia at Mater Hospital) to AHPRA dated 16 September 2011; 59. Letter from Dr Angelos (Dr Rixon's treating GP) to AHPRA dated 28 September 2011; 60. Report from Dr Sullivan (Dr Rixon's treating psychiatrist) dated 26 October 2011; 61. Email from AHPRA to Dr Rixon dated 9 January 2012; 62. Email from AHPRA to Dr Rixon attaching Schedule of Undertakings, dated 24 January 2012; 63. Email from Dr Sullivan to AHPRA dated 16 May 2012; 64. Report from Dr Sullivan dated 7 June 2012; 65. Affidavit from Dr Rixon dated 19 June 2012; 66. Letter from Dr Sullivan to AHPRA dated 5 July 2012; 67. Memo from AHPRA to the Medical Council of NSW (the Council) dated 1 July 2013 attaching Letter to Mr Scott Marshall, Health and Performance Officer, AHPRA QLD from Dr Fiona Macfarlane, Director of Paediatric Critical Care and Anaesthesia, Mater Children's Hospital dated 16 September 2011, Letter from Dr Marian Sullivan to Julie Horton, Senior Health & Performance Officer, AHPRA dated 7 June 2012, Letter from Dr Marian Sullivan to Julie Hawton, Case Manager, AHPRA dated 5th July 2012, Report of Dr Evan Angelos dated 30 July 2012, Work Progress Reports from 6 February 2012 - 10 April 2012 , 1 May 2012 to 6 August 2012, 19 October 2012 to 2 January 2013, Letter from Dr Marian Sullivan to Julie Horton, Senior Health Performance Officer, AHPRA dated 12 December 2012, Report of Dr Evan Angelos dated 27 December 2012, Report of Dr Marian Sullivan dated 11 April 2013, 68. History of three-monthly blood tests, and Notification of Undertakings by Kathryn Browning Carmo dated 5 June 2013; 69. Letter from AHPRA to Dr Rixon dated 23 July 2013; 70. File note by Jane Eldridge of Medical Council dated 22 April 2014; 71. Emails of 19 May 2014 and 16 July 2014 to Medical Council and email of 18 July 2014 from Medical Council to Practitioner; 72. Medical Council file note of telephone conversation with Practitioner on 31 July 2014; 73. Email from Practitioner to Medical Council of 29 July 2014 and email from Medical Council to Practitioner of 1 August 2014; 74. Medical Council file note of 1 August 2014 of telephone conversation with Practitioner; Emails of 29 July 2014 from Practitioner to Medical Council, 1 August 2014 from Medical Council to Practitioner, and 5 September 2014 of Practitioner to Medical Council; 75. Email of 7 September 2014 from Practitioner to Medical Council and email of 8 September 2014 from Medical Council to Practitioner; 76. Letter of 8 September 2014 from Medical Council to Practitioner; 77. Report of Dr Stephen Rosenman of 9 September 2014; 78. Email of 7 September 2014 from Practitioner to Medical Council, email from Medical Council to Practitioner of 8 September 2014, email form Practitioner to Medical Council of 13 September 2014, and email from Medical Council to Practitioner of 15 September 2014; 79. Letter of 29 September 2014 from Diagnostic Pathology Unit, Concord Hospital to Practitioner; 80. Letter of 17 October 2014 from Medical Council to Practitioner; 81. Email from Practitioner to Medical Council of 22 October 2014, and email of 27 October 2014 from Practitioner to Medical Council; 82. Email of 27 October 2014 from Medical Council to Practitioner; 83. Letter of 29 October 2014 from Practitioner's solicitors to Legal Director of Medical Council; 84. Facsimile from Medical Council to Sydney South West Pathology Services of 5 November 2014; 85. Email from Medical Council to Sydney South West Pathology seeking urgent fax of test results for 11 tests; 86. File note of Medical Council regarding telephone conversation with lawyer for Practitioner on 11 November 2014; 87. File note of Medical Council of 17 November 2014 of conversation with Practitioner; 88. Letter of 24 November 2014 from Diagnostic Pathology Unit, Concord Hospital to Practitioner; 89. File note of Medical Council of telephone conversation on 26 November 2014 with solicitor for Practitioner; 90. Email of 8 December 2014 from Medical Council to Practitioner; 91. Pathology request from Douglass Hanley Moir of 8 December 2014 to Concord Hospital; 92. Pathology request by Medical Council of NSW; 93. Email from Practitioner's solicitor to the Medical Council of 11 December 2014 and reply of same date; 94. Emails between Concord Hospital and Medical Council regarding pathology accounts at Concord Hospital (8 December 2014); 95. File note of Medical Council of 16 December 2014 regarding conversation with Concord Hospital about ceasing to perform tests for Practitioner; 96. Email of 15 December 2014 from solicitors for Practitioner to Medical Tribunal regarding outstanding Concord Hospital account and reply of 16 December 2014; 97. Medical Council letter of 9 July 2015 to Dr Fisher; Dr Fisher's report of 16 July 2015; 98. Letter from Dr Sullivan to Dr Fisher of 15 July 2015; Letter of HCCC Legal Officer to Dr Fisher of 6 August 2015 attaching report of Dr Sullivan of 11 June 2015 and 2 questionnaires completed by the Practitioner on 5 June 2015; 99. Report of Dr Fisher of 11 August 2015; 100. Dr Sullivan's medical records for Practitioner post 1 January 2015; 101. Letter dated 8 April 2014 from Medical Council to Practitioner; Statement by Practitioner of 19 June 2015; 102. Letter of 18 May 2015 from Practitioner's solicitor to Dr Sullivan; 103. Report of Dr Sullivan dated 11 June 2015; 104. Letter of 11 June 2015 from Uniting Care to Practitioner; 105. Pathology result sheet from South Sydney South West Pathology Service including results from Sullivan Nicolaides Pathology; 106. Medical Council of NSW Compliance Policy - mentor - dated 1 May 2015; 107. Medical Council of NSW Compliance Policy - supervision - dated 1 February 2015; 108. Medical Board of Australia / AHPRA protocol for blood testing approved 27 July 2010; 109. AHPRA Information for Registrants - Restrictions requiring alcohol breath testing; 110. Oral evidence of Dr Fisher on 17 August 2015; 111. Oral evidence of Dr Sullivan on 17 August 2015; and 112. Oral evidence of the Practitioner on 17 August 2015.

GROUNds 1 & 2 - Contravention of conditions of registration

Ground 1 alleges unsatisfactory professional conduct comprising his failure to comply with the condition for twice weekly EtG testing and his failure to attend review by the Council Appointed Psychiatrist on a 3 monthly basis, or as directed.
Ground 2 relies on the same particulars but alleges that the conduct constitutes professional misconduct.
The emphasis in the Tribunal's jurisdiction in these proceedings is the protection of the public. That includes maintaining high standards in the profession (eg HCCC v Litchfield) (1997) 31NSWLR 630 at 637-638)
There are also other important but indirect effects of the disciplinary order that should be considered in deciding an appropriate protective order, and these include: 1. The order reminds other members of the profession of the public interest in the maintenance of high professional standards; 2. The order may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence; and 3. By speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. 4. (Basten JA NSW Bar Association v Meakes [2006] NSWCA 340 at [114])
The broad approach to the public interest has also been endorsed recently by Meagher JA (with whom Basten JA agreed) in Health Care Complaints Commission v Do [2014] NSWCA 307. It was held at [35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from similar misconduct or incompetence of other practitioners and the upholding public confidence in the standards of the profession. That objective is achieved by setting an maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those that have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by singling out those whose conduct does not meet the required standards and will not be permitted to practise" And at [43] Meagher JA held that in that case "significant and continuing departures from acceptable and safe medical practise required that the Practitioner's conduct be marked publically ….." and "the making of orders under S 149C(4)(a) will make plain that conduct of the kind engaged in is unacceptable"
The Tribunal is satisfied, and the Practitioner has conceded, that each of the breaches of conditions of the Practitioner's Registration particularised in Ground 1 was unsatisfactory professional conduct as defined by 139B of the National Law as it comes within paragraph 139B(1)(c) as a contravention by the practitioner of a condition to which the practitioner's registration is subject.
The HCCC in Ground 2 asserts that the conduct in breaching the conditions constitutes professional misconduct.
In written submissions filed on behalf of the Practitioner on 24 August 2015, he concedes that "given the period of time during which he was in breach of the conditions, it is open to the Tribunal to find the complaint proved". The breaches of the conditions occurred despite reminders by the Council of his obligations.
The intention of the conditions breached was to address the Practitioner's alcohol addiction and his problems with anxiety and depression so as to protect the public from him performing his duties as a medical practitioner while adversely affected by alcohol, depression or anxiety.
In the particular circumstances, breach of the conditions in each case is a matter of some gravity. The Tribunal is satisfied that each was so serious as to constitute professional misconduct under the definition in Section 139E in that the breaches each constituted "unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration".
Accordingly, the breaches together constitute professional misconduct within the definition in paragraph 139E(b) being "more than 1 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" Ground 3 - Impairment
"Impairment" is defined in Section 5 of the National Law 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 a dependence, that detrimentally affects or is likely to detrimentally affect:- 1. for a registered health practitioner or an Applicant for registration in a health profession, the person's capacity to practice the profession"
For a finding of impairment the Tribunal has to be satisfied that the Practitioner is currently impaired. (Caladine v HCCC [2007] NSWCA 362 at [11] per Beazley JA with whom Giles and Hislop JJA agreed).
The Tribunal has recently held that if a practitioner has a condition, but it is in remission, that may not be an impairment for purposes of the Section 5 of the National Law (Health Care Complaints Commission v Baraz [2015] NSWCATOD 39 [219]).
Dr Sullivan provided psychiatric treatment for the Practitioner from May 2011 to April 2013 and then since his return to Brisbane in February 2015. She said that when he returned in 2015 he explained that "in fact things had not gone well in Sydney and that his registration was suspended". She said In her report of 11 June 2015 that the Practitioner said his move to Sydney was not wise because "he removed himself from the support of his family and also I think solid therapeutic relationships that had developed in Brisbane. Dr Rixon also admits that he has a pattern of avoidant behaviour when faced with difficult and embarrassing situations. I was also concerned to learn that he was fairly isolated socially in Sydney and that patterns of alcohol use that had been controlled in Brisbane had returned"
Dr Sullivan reported that she had seen the Practitioner every 2 - 3 weeks since his return to Brisbane. She reported that he did seem to be "genuinely confused about the urine testing requirement when he was not working". But she said "I note that he currently has fulfilled the request for 12 weeks of urine testing".
She reported that since his move to Brisbane the Practitioner was receiving very substantial support from his family and recognised he must approach medical colleagues for help in rehabilitating himself. He had obtained permission to attend Ground Rounds at the Lady Cilento Children's Hospital in order to maintain his knowledge base in paediatrics.
Dr Sullivan had referred him to a senior psychologist, Dr Christensen, for Cognitive Behaviour Therapies. He was continuing with medication. She said in her report that he had had since his return to Brisbane "gained significant insight and shown a willingness to subject himself to the requirements to regain his registration". She concluded in her report as follows: I note that there have been no adverse patient events whatsoever for Dr Rixon. Given that he works in an extremely difficult and stressful part of medicine I think this does indicate that his impairment can be successfully managed. I do consider that Dr Rixon is competent to practice medicine. I do not see his impairment as currently causing any reduction in his capacity to practice as a medical practitioner. I consider that with appropriate conditions he would be able to return to work. NOT IMPLEMENTED: support for w:pict - without v:imagedata Dr Fisher said that when he saw the Practitioner on 16 July he said that he had been abstinent from alcohol and not used any other recreational drugs, or misuse d any prescription medication. He said the abstinence from alcohol had been since June 2014. Dr Fisher said "I believe that at the time I saw him he was not impaired and was competent to practise medicine".
On 15 July Dr Sullivan sent an urgent message to Dr Fisher, warning him that although the Practitioner had been progressing "extremely well" and had been compliant with all treatment, she had changed his medication in late June and initially that resulted in an improvement, but when he was reviewed by the psychologist on 15 July, the psychologist recommend that he see Dr Sullivan urgently because over the last 10 days there had been a significant deterioration in his clinical state as a result of the change in his medication. When Dr Sullivan saw him, she agreed and said that he had complaints of sleep deterioration, lability, depressed mood and irritability. Dr Sullivan prescribed a return to his previous medication but was concerned as to how he would present to Dr Fisher the next day.
Dr Fisher saw the Practitioner on 16 July 2015 and reported to the Council that at that time the Practitioner had been having EtG testing and there had been no evidence of alcohol consumption. Dr Fisher concluded his report with the following conclusions, opinions and recommendations: NOT IMPLEMENTED: support for w:pict - without v:imagedata I believe that if, at the time of his IRP review, his improvement in mood is sustained and he is euthymic and stable in mood and has not lapsed with alcohol abuse, then he is likely to be fit to work. 1. I believe Dr Rixon does suffer from an "Impairment" within the meaning of the Act to wit he has suffered from Major Depressive Disorder which appears to be remitting after a bout of depression which lasted about 2 months and was not responsive to a switch to Brintillex. He has now reverted to taking Pristiq building up from 50 mg under the supervision of his treating psychiatrist. 2. He also has suffered from Generalised Anxiety Disorder in the long term. 3. He also has suffered from Generalised Anxiety Disorder in the long term. 4. He has a history of alcohol abuse and dependence but this is also reportedly in remission. 5. Dr Rixon denies experiencing any temptation to drink alcohol despite exposure to opportunities to drink 6. I believe that Dr Rixon is not currently impaired but on self report he has just recovered from an episode of depression. 7. If Dr Rixon is to return to work then he should do so under the usual conditions for a doctor suffering from a mood disorder and also having had problems with alcohol abuse and dependence. 8. This would involve having twice weekly EtG urine testing and attending upon his treating psychiatrist on a regular basis. 9. He appears to be benefiting from seeing his clinical psychologist and I think this should continue on an as needs basis as determined by the treating psychologist. 10. He will need to be monitored for any mood swings by his treating psychiatrist. 11. He would need to work in a position where he can receive adequate supervision and the supervisor will need to be aware of his history or recurrent Major Depressive Disorder and alcohol abuse/dependence problems. 12. Given that Dr Rixon lives and works in Brisbane it would appear most appropriate that ongoing monitoring occur within the Queensland based system for dealing with impaired doctors
Dr Fisher also saw the Practitioner for review on 11 August 2015. At the request of the HCCC, he expanded on his previous opinion that the Practitioner suffers from an impairment within the meaning of the Act, but he is "not currently impaired". He said "my understanding of this definition of "impairment" is that an individual may have a condition such a recurrent Major Depressive Disorder or Bipolar Effective Disorder or has a clearly established pattern of alcohol or drug dependence - conditions which are not curable but are potentially manageable. When not managed well the individual's mental and physical state may be such that they are impaired in their capacity to safely practise medicine, whereas if they are well managed using medication with or without the psychotherapy, they may be unimpaired in the capacity to practise medicine"
Dr Fisher said in that report that if the Practitioner were in a depressive state, his psychological and physiological functioning would be impaired by: a slowing of mentation, sleep disturbance, reduced appetite, feelings of desperation, suicidal ideation and decrement in motivation and drive. There is a sense of pessimism and usually self-deprecation and at times nihilistic views of the present and the future. In such a state there is a high risk of self harm which may culminate in a successful suicide' In addition, the tendency to ruminate negatively and to be excessively introspective detracts from the capacity of the individual to engage rationally in the world around them, including a professional setting. When so affected, I believe that Dr Rixon would be significantly impaired in his capacity to practice anaesthetics safely if he perused paediatric and anaesthetic training or if he was working in the Intensive Care Unit. Anaesthetics and Intensive Care Medicine are disciplines where, much of the time, things go smoothly, but however when things go wrong, they go wrong very quickly and what goes wrong is often life threatening. Managing crises in anaesthetics or Intensive Care requires a duty of mind, capacity to concentrate and the capacity to make life and death decisions in an instant".
Dr Fisher said that the "vulnerability to impairment is lifelong, but nonetheless, with ongoing mental health support and pharmacological treatment, his risk of being impaired at a point in time of for a period of time can be very significantly mitigated"
Dr Fisher said that he agreed with the opinion of Dr Sullivan that the Practitioner was not currently impaired and was competent to practise medicine. He agreed with her suggestion that appropriate conditions should be put in place.
Dr Fisher recommended that if the Practitioner is to practise medicine he should have the following conditions: 1. He continues to see his psychologist and psychiatrist until such a time as they deem appropriate to cease monitoring and they notify AHPRA accordingly; 2. That he has a supervisor at his place of work who is familiar with his condition and registration and the nature of his psychiatric problems; 3. He is subject twice weekly to EtG testing and in view of his attempt in 2013 to obtain Valium and Quetiapine by writing scripts for himself, a period of random urine drug screenings may appropriate, but these 2 drugs would have to be specified and otherwise routine drug screenings for opioids, amphetamines and other recreational drugs would apply. If he is working in anaesthetics or ICU then a case could be made for him being required to have alcohol breath testing each time he commences a shift; 4. He should be reviewed by a Council appointed psychiatrist on an initial 3 monthly then 6 monthly basis during his time as an inductee into the Impaired Registrants Program; and 5. He should be subject to conditional registration for a minimum period of 3 years.
The HCCC submits that the recent significant deterioration in the Practitioner's clinical state resulting from a change of medication means that "it can't be said that Dr Rixon's condition is sufficiently stable to satisfy the Tribunal that his impairment is not likely to detrimentally affect his capacity to practice". The cause of the deterioration must be taken into account, and this deterioration is not a conclusion that his impairment is not currently in remission. In oral evidence, Dr Fisher said that in his opinion, if the Practitioner's condition is managed he has a vulnerability by virtue of having the condition.
In cross examination Dr Fisher said that the Practitioner had used Valium to alleviate anxiety, but he had seen no evidence of the Practitioner abusing Valium. He said that continuing use is likely to result in him developing a tolerance and suffer withdrawal symptoms if he ceased using the medication. He said that there was no evidence of the Practitioner abuse any other medications or is using recreational drugs.
In regard to item 3 of his recommend conditions, he suggested that the drug test be for 6 months, but more if Dr Rixon had written the subscriptions for himself with suicide in mind. He conceded that the Practitioner has a tendency to relapse and that he needed to be very guarded about predicting. He said the Practitioner "needs a longer period of stability". He said that he would probably recommend that the treating psychiatrist be required to notify of any deterioration in the Practitioner's condition. He warned that anxiety was a factor that could incapacitate the Practitioner from seeking treatment or self notifying.
Dr Fisher expressed the opinion that the Practitioner could be better working in paediatrics "with a team of people around him" rather than intensive care or anaesthetics
In cross examination Dr Sullivan agreed that if the Practitioner returned to practice, he should have conditions on his registration. She said the conditions would be to protect the public and also to offer support and monitoring for the Practitioner. She said that since 16 July 2015 the Practitioner's conduct had been stabilised and his anxiety / depression was "very much under control". She said the last time she saw him she was impressed at how much improved he was. She said an example was his awareness of what issues would be raised in his hearing.
She was asked whether her Practitioner had used alcohol to self medicate and she said that maybe he did. She said that there was certainly a connection between anxiety and alcohol. She said the risk of self medication with alcohol has certainly decreased.
In answer to questions from the panel, she said that with anxiety, avoidance can look like defiance. She said that the Practitioner has made reasonable progress in terms of avoidance. She said that she encouraged him to attend Grand Rounds at the Children's Hospital and previously "he would have been too embarrassed" She said that he had also done some very helpful work with psychologists in terms of managing the anxiety by means other than medication. The evidence establishes that he has also been attending a mindfulness course.
She said "he needs to work with others". When asked about how he would be in Paediatric Intensive Care, she said that she thought it would be stressful, but when she had asked him about it, and she said his extensive experience and skill would enable him to cope. She described him as a "broad thinker".
The Practitioner in oral evidence that he has only used Valium to address anxiety and had used it only as needed and by prescription by one of his doctors.. He said that he had not had any Valium for well over 12 months. He said that he had not used alcohol since June 2014 and "I think I am a person who should not use it. I don't want to ever use it again".
He said that since he moved back to Brisbane, with the help of the doctors and his family, "I haven't felt anxious". He was asked about Dr Fisher's proposal with him having to use a breathalyser before work in intensive care. He said that that would not be a problem for him. He said that there was a gap in the test for about week when he moved to Brisbane, but since then he has made every effort to comply with "the protocol in NSW".
He said that he is now eating and sleeping well, exercising well, and also reconnecting with friends.
He said that he formed an intention in late April 2014 to stop drinking alcohol, but it took him about 2 months to abstain. He said that by then there were a pile of envelopes "unopened" in his house. He had avoided opening the letters from the Council because of his anxiety as to what was contained in them. He conceded that when he told Dr Fisher in July 2014 that he had abstained from alcohol since February 2014 that was not true. He conceded that he had abstained from alcohol on "a couple of prior occasions" And he considered that his present abstention as at August was "not in itself an indicator that I won't go back to drinking".
In answer to questions from the panel, he conceded that shift working had contributed to his sleep problems and diet problems and "made me socially isolated". He also conceded that when he was doing retrieval medicine, he would not be accompanied by another doctor and that was not good.
He acknowledged that the conditions that had been imposed on him previously were protective of the interests of patients and also of his own interests. He said that the breathalyser testing would be more convenient to him than the EtG testing, which he believed was not available in QLD. He denied telling Dr Fisher that he had used LSD. He said that he had never used that drug. He said that he was not opposed to having testing for a wide range of drugs. He said that since he complied with the conditions, things had got better.
In answer to questions from the panel he conceded that the work hours and arrangements for Paediatric Intensive Care and Paediatric Intensive Care Transport were incompatible with his need to avoid lapses in his anxiety, depression and alcohol abstinence. He said that there would be no on call requirement with general Paediatrics and that he has no intention of pursuing Paediatric Anaesthetics.
He said that if there was a condition that he not work in Paediatric Anaesthetics he would agree with it, but only if that would not prevent him from undertaking any training in general Anaesthetics. He said when the medication change was reversed he said that his mental state stabilised. He said that his mood in the last 2 weeks had been 8 to 8.8. He said 2015 had been "the best year I've had".
He was asked about reporting suicidal thoughts to Dr Fisher. He said "I think I was preparing for this hearing at the time and talking to a lot of people and also thinking about my future life". He said that it had been "a couple of months" since he had had any suicidal ideation.
The Practitioner has completed a 4 week mindfulness course and said that he had found this "good, interrupting my thought processes and thinking a different way about them".
In closing submissions Counsel for the HCCC conceded that the Practitioner's health problems are being managed at present and are presently stable.
The admissions of the Practitioner contained in paragraphs 10 - 17 of his statement of 19 June 2015, together with the medical evidence from Dr Fisher, Dr Sullivan and Dr Rosenman, establish that the Practitioner's health problems of depression, anxiety and alcohol abuse constitute "a physical or mental impairment, disability, condition or disorder" and that although this involves a risk that it will in the future detrimentally affect his capacity to practice medicine, the present situation is that those health problems are managed, do not presently compromise that capacity and are not likely to do so. Presently his health problems do not detrimentally affect his capacity to practice and are not likely to do so. The evidence does not establish that he is presently impaired.
The Tribunal is satisfied that this is not a matter where the appropriate outcome is deregistration or extension of the suspension. On the evidence appropriate protection for the public can be achieved by extensive conditions on the Practitioner's registration.

CONCLUSIONS

The Tribunal has considered the orders proposed by the HCCC and the submissions of both parties. In submissions after the hearing the practitioner has agreed to most of the HCCC's proposed orders.

Proposed Practice Condition 1 - Mentoring

There has been no serious problem with the Practitioner's clinical performance while his health problems have been managed and the evidence does not require that the Practitioner have a supervisor.
The Practitioner does not oppose the mentoring condition proposed by the HCCC. The Tribunal finds that the evidence establishes that for the protection of the public the mentoring conditions proposed should be made as they will help protect the public and also assist the Practitioner to manage his professional and personal life and particularly his management of anxiety, and stress and abstinence from alcohol. However the Tribunal has concluded the minimum period for meetings each month be 1 hour rather than 2. This is based upon the main focus being on the health of the practitioner, rather than his clinical competence, and the other protective orders in relation to managing his health. It is considered that 2 hours per month may be unnecessary and too demanding for the mentor and the Tribunal has determined that a minimum of 1 hour per month is adequate.

Proposed Practice Condition 2 - Practice restrictions

The Tribunal is satisfied that the restrictions that would be imposed by proposed practice conditions 2 (a), (e), and (f) are necessary restrictions for the purpose of assisting the Practitioner to manage his health problems and therefore for the protection of his patients.
The Practitioner opposes the proposed practice conditions 2(b) and (c), which are to limit his work hours to not more than 40 hours in a week and to exclude working on-call.
The evidence establishes that it is important for successful management of his health problems and avoidance of bouts of relapse that the Practitioner maintain reasonable routines for sleep, diet, exercise and socialising (including with friends and family). Working night shifts or on-call or for more than 40 hours in a week could be contrary to that need.
The submissions for the Practitioner are that employment as a Paediatric Registrar with such restrictions would not be available, and accepting some on call work (such as when another doctor is sick) and sometimes being required to work more than 40 hours would be requirements of any such employment.
His treating practitioners have not expressed any concern that his hours of work or shift work be limited. The Tribunal agrees with the submission for the practitioner that there is no evidence that the hours he worked at any time directly contributed to a deterioration of his mental; state or caused him to breach the conditions of his registration.
It is likely that such conditions would limit the number of positions in Paediatrics for which he would be eligible.
Given the dramatic improvements in the practitioner's management of his health and routines since he became abstinent from alcohol and the other protective conditions regarding his health that the Tribunal has decided on, the Tribunal has concluded that the protection of the public will be sufficiently served by other conditions without practice conditions 2(b) and (c) proposed by the HCCC.
The Practitioner opposes Practice Condition 2(d) proposed by the HCCC (not to work in intensive care or a high dependency unit or anaesthetics). Dr Fisher's opinion (report of 11 August 2015) is that the Practitioner would be "significantly impaired in his capacity to practise anaesthetics safely if he pursued paediatric anaesthetic training or if he was working in an Intensive Care Unit" and was clinically depressed. Dr Fisher highlighted anaesthetics and intensive care as areas where "when things go wrong, they go wrong very quickly and what goes wrong is often life threatening." However, Dr Fisher does not indicate that the Practitioner is not capable of practising in those areas when he is not depressed. The Practitioner testified that he proposes to undertake general paediatric training and then work as a paediatrician. He has no proposal to work in those areas that proposed Practice Condition 2(d) would exclude.
The submissions for the Practitioner state that he does not intend to pursue a career in intensive care or anaesthetics, but he may need, as part of his training in Paediatrics, to undergo advanced training in a critical area of a Children's Hospital. However, the Practitioner has worked for many years in paediatric intensive care and the evidence is that he is a very competent in that area. There is no evidence from the Royal Australian College of Physicians as to whether his extensive past experience in paediatric intensive care would be a basis for waiver of any requirement for such experience as part of his training in general paediatrics. It may be. Presumably he would still need to complete any study and examination(s) in the subject.
The Tribunal therefore concludes that it is in the interest of the Practitioner's patients and himself that the restriction proposed by the HCCC should be included in the conditions and apply for at least one year.
There is also evidence of similar work conditions when the practitioner in the past worked in emergency retrieval. His evidence also was that it involved working without another doctor, patients with serious life threatening conditions, very irregular hours and considerable time spent waiting. The Tribunal concludes that condition 2(d) should also apply to working in emergency retrieval.

Proposed Practice Condition 3 - Reports from Employer

The Practitioner opposes the requirement for him to provide the Board every 4 months (and on request by the Board or if the reporter holds concern or is aware that someone else has concern) about his competence/fitness to practice medicine, written reports from his employer/practice principal as to his fitness/competence to practice medicine. The Practitioner argues, and Tribunal accepts, that treating relationships are generally independent of a specific reporting process, unless there are concerns about a failure to comply with treatment or a deterioration in the patient's health.
One submission for the practitioner is that if the employer is a hospital, that person may have no medical qualifications and no direct knowledge of the matters required to be reported upon. Similarly one submission for the practitioner is that the requirement is unnecessary because of the provisions of section 3(3) of the National Law. It provides: 3(3) The guiding principles of the national registration and accreditation scheme are follows: (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
It is was argued that the requirement is unnecessary because the other proposed conditions that are not opposed include requirements for monthly (and other) reports to the Board from the Mentor (during the period of at least 12 months of mentoring), ongoing and other testing, quarterly reports from his general practitioner, quarterly reports from his treating psychiatrist, quarterly reports from his treating psychologist, and reports by a doctor or doctors nominated by the Board to conduct any additional review of his health.
There have been no serious problems with the practitioner's clinical performance while his health problems have been managed and the evidence does not require that he have a condition of his registration for supervision. Fitness to practice will be subject to scrutiny by his mentor, GP, Psychologist and psychiatrist and they will be reporting to the Board. The conclusion is that the proposed condition 3 is not necessary for the protection of the public and should not be a condition.
The Tribunal has decided that the quarterly reports by the employer, GP, Psychiatrist and psychologist should not be required and instead the reporting should be focussed on the practitioner's health and the triggers for reporting to the Board should be extended to comprise a failure to attend for treatment, a failure to comply with treatment, termination of treatment or any significant change in health status (including a significant temporary change).

Proposed Practice Conditions 4 and 5.

These are necessary machinery provisions. They are consented to and should be adopted.

Proposed Health Condition 6 - Costs of health review by doctor nominated by the Board.

This condition includes a requirement that the Practitioner meet the costs of any such review. The Practitioner submits that "the usual order is that when the Board wishes the Practitioner to be reviewed by a medical practitioner, the cost of that is met by the Board. That should be the position here."
The HCCC says that that is the usual practice in NSW, and the Medical Council of NSW agrees that is so. But the Practitioner is practising in Queensland and the Medical Board of Australia will be making any such request. The HCCC does not have instructions that the Medical Board will agree to pay the costs. The HCCC notes too that the clause is less onerous because it does not propose regular examinations by a doctor or doctors nominated by the Board, and instead it is intended that the Board will rely on the other reports required by the conditions. Also, AHPRA has informed the HCCC that in Queensland the practice is that the medical practitioner is responsible for meeting the costs.
The practitioner will have expenses of the mentoring, the alcohol testing and other tests and treatment and other expenses for his treating professionals. The Tribunal has therefore determined that the condition should not be as proposed by the HCCC and the requirement for him to meet the costs of a review and report requested by the Board should be omitted.

Proposed Health Conditions 9a, 10a, & 11a- Quarterly reports from treating professionals.

The Practitioner opposes the requirements for quarterly reports by his GP, psychologist and psychiatrist. His submissions are: 1. he might not have attended the treating professional since the last report; 2. such frequent reporting might undermine the therapeutic relationship with his psychiatrist; and 3. a report should only be provided when there is "any significant deterioration in the practitioner's mental state", which is provided for in the draft.
It is accepted that there that a report may inform simply that no attendance occurred and no attendance was requested by the person writing the report. But the fact that he has not attended in the last 3 months could be significant if, for example, the practitioner failed to attend an appointment or where the reporter had asked him to make an appointment to attend, but he had not done so.
The second submission is not supported by evidence. Indeed Dr Sullivan, his psychiatrist, acted in his best interests in July 2015 by disclosing to Dr Fisher before his appointment with the Practitioner, the observed adverse effects on the Practitioner of a change of medication and how he might present at the appointment. Also the relationship with Dr Sullivan has been consistent and positive even though she was providing reports to the Medical Council from 2011 to 2013 and reports since then for these proceedings.
The third submission is not accepted. The Board (and the Tribunal) would not want the frequency limited to occasions when there is already a "significant deterioration in the practitioner's mental health".
However, the Tribunal is persuaded that the Practitioner's period of abstinence and good health to date, together with the proposed mentoring, practice restrictions, alcohol and other testing, and requirements for reporting by his GP, psychiatrist and psychologist will provide adequate protection for the public, without requiring the quarterly reports. As set out earlier in these conclusions in relation to the HCCC's proposed Practice Condition3, the triggers for a report by a treating practitioner to the Board should be extended and the requirements for quarterly reports omitted.

Proposed Health Condition 13 - Costs of health review by doctor nominated by the Board.

This objection is the same as the objection to proposed Health Condition 6 and for the same reasons given for amending that condition, the proposed condition 13 should be amended by excepting costs of any review or report requested by the Board or Council;.

Proposed Health Condition 14 - Opposition to para (b)

In consequence of the Tribunal's decision to dispense with quarterly reports and to put the onus on the treating health professionals to report to the Board if any trigger event occurs, para 14(b) proposed by the HCCC should be omitted.

The remainder of the proposed Health Conditions

Apart from the submissions of the practitioner dealt with above, he "accepted" the remainder of the provisions of the conditions the HCCC proposed be imposed on his registration. The Tribunal is satisfied that subject to the determinations above, for the protection of the public otherwise the proposed Health Conditions should be imposed on the practitioner's registration as a medical practitioner. This includes the provisions making Health Conditions 3, 4 and 5 in the HCCC document (abstinence from alcohol, breath-alcohol testing and Carbohydrate Deficient Transferrin, Liver Function Testing and Mean Corpuscular Volume testing), critical conditions a breach of which would in NSW result in his registration being cancelled.

COSTS

The HCCC seeks an order that the Practitioner pay its costs of or incidental to these proceedings. There was no submission for the Practitioner opposing the costs application. Section 175B of the National Law gives the Tribunal power to make an order for Costs. The proceedings came about primarily because of the Practitioner's professional misconduct by way of breaches of conditions of his registration.
There has been no submission of a reason why costs should not to follow the event, as is the usual approach (see HCCC v Gower [2011] NSWNMT 17 [65]-[76]).
Accordingly there should be an order for the practitioner to pay the costs of the HCCC of these proceedings.

ORDERS

The orders of the Tribunal are: 1. The Respondent Practitioner is guilty of professional misconduct. 2. The suspension of the Practitioner's registration as a medical practitioner is discharged. 3. The Practitioner's registration is subject to the following conditions:

Practice conditions 1. The practitioner must meet with a mentor for no less than 1 hour per calendar month for at least 12 months and 1. Within twenty-eight (28) days of returning to practice, the practitioner must nominate a mentor to the Medical Board of Australia ("the Board") who is a professional colleague registered as a medical practitioner and experienced in paediatrics ("the mentor"); 2. The mentor must: 1. Be senior to the practitioner by either years of experience or by position and provide the Board with a curriculum vitae; 2. Agree to the nomination; 3. Be nominated in writing by the practitioner within twenty-eight (28) days of the practitioner's return to work; and 4. Be approved in writing by the Board 1. Within seven days of the approval of the mentor by the Board the practitioner must provide the Board with a signed letter from the mentor that states he/she has been provided with a copy of all practice and health conditions imposed on the practitioner's registration and a copy of the New South Wales Civil and Administrative Tribunal decision; 2. The mentoring must focus on: compliance with practice conditions; compliance with health conditions, clinical issues, work-life balance, professional development and any other work-related issue; 3. Should the mentoring relationship terminate (for any reason), the practitioner must provide a new nomination to the Board. Such a nomination must be made by the practitioner within seven days of their becoming aware of such a termination; 4. The practitioner must provide reports written by the mentor to the Board, addressing hours of contact and to inform the Board if there if any concern about his professional conduct, health or personal wellbeing. These reports must be provided on the following occasions; 1. At the end of each calendar month; and 2. Whenever the mentor has a concern regarding the practitioner's health, conduct, competency or fitness to practise the profession; and 3. Whenever requested, verbally or in writing, by the Board 1. On his return to practice and until a time as determined appropriate by the Board, the practitioner must; 1. Only practise in a position approved by the Board; 2. Not work in an intensive care or high dependency unit or in anesthetics or emergency retrieval for at least one year; 3. Not work in solo practice; 4. Within 7 days of returning to practice, provide written evidence to the Board that he has notified all employers / CEO of any health care facility where the practitioner works of all practice and health conditions on the practitioners registration and a copy of the New South wales Civil and Administrative Tribunal decision (or within 7 days of commencing any other future employment); 1. The practitioner must authorise the Board to notify current and future persons or organisations at places where he works as a medical practitioner in Australia, of any issues arising in relation to compliance with these conditions. 2. A review of these conditions may be conducted as follows: 1. whilst the practitioner's principal place of practice is New South Wales, the Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW); and 2. whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, sections 125 to 127 of the Health Practitioner Regulation National Law are to apply, and accordingly in those circumstances a review of these conditions can be conducted by the Medical Board of Australia.

Health Conditions 1. .The practitioner must not self-prescribe. 2. The practitioner must notify the Board immediately if he is aware that there is any material change in his health. 3. The practitioner must remain completely abstinent from alcohol: 1. f the practitioner's principal place of residence is in NSW, contravention of Health Condition 3 or any variation of that condition will result in the practitioner's registration being cancelled. 1. The practitioner must undergo breath-alcohol testing and provide the Board with a copy of his log book record on a fortnightly basis in accordance with the Board's protocol. Contravention of this order will result in the practitioner's registration being cancelled. 1. The practitioner's principal place of residence is in NSW, contravention of condition 4 or any variation of this condition will result in the practitioner's registration being cancelled. 1. The practitioner must attend for Carbohydrate Deficient Transferrin, Liver Function Testing and Mean Corpuscular Volume testing, as and when required by the Board, in accordance with the Board's protocol. 1. If the practitioner's principal place of residence is in NSW, contravention of condition 5 or any variation of this condition will result in the practitioner's registration being cancelled. 1. The practitioner agrees to attend for review by a doctor or doctors nominated by the Board as requested by the Board. 2. The practitioner agrees to authorise the release of any health assessment report commissioned by the Board, and any reports obtained in compliance with these conditions to his treating psychiatrist, psychologist and GP. 3. The practitioner must not unless authorised by the Board prescribe and/or supply any medications to his immediate or extended family. 4. The practitioner must within 7 days of the imposition of the conditions, provide to the Board details of his treating general practitioner (GP) (who is not a member of his/her family or a professional colleague). 1. The practitioner must authorize the GP to provide a report to the Board written by the GP to inform the Board of a failure to attend for treatment, failure to comply with treatment, termination of treatment or any significant change in health status (including a significant temporary change). 2. The practitioner must notify the Board of any change of his treating GP within 7 days of the change. 3. The GP will prescribe and supervise all medications other than those prescribed by treating specialists 1. The practitioner must attend for treatment by a psychiatrist of his own choice at a frequency to be determined by the psychiatrist. 1. The practitioner must authorize the psychiatrist to provide a report to the Board written by the psychiatrist to inform the Board of a failure to attend for treatment, failure to comply with treatment, termination of treatment or any significant change in health status (including a significant temporary change). 2. The practitioner must notify the Board of any change to his treating psychiatrist within 7 days of the change. 1. The practitioner must attend for treatment by a psychologist of his own choice at a frequency to be determined by the psychologist. 1. The practitioner must authorize the psychologist to provide a report to the Board written by the psychologist inform the Board of failure to attend for treatment, failure to comply with treatment, termination of treatment or any significant change in health status including a significant temporary change). 2. The practitioner must notify the Board of any change to his treating psychologist within 7 days of the change. 1. The practitioner must take any medication prescribed by his treating practitioners. 2. The practitioner is responsible for all costs associated with compliance with these conditions other than costs of a review or report requested by the Board or a medical council. 3. The practitioner must within 14 days of the imposition of these orders provide a hardcopy of all practice and health conditions on his registration to his treating GP, psychiatrist and psychologist and provide the Board with a signed letter from each of his treating GP, psychiatrist and psychologist that states that the person has been provided a copy of all practice and health conditions imposed on the practitioner's registration. 1. The Practitioner must pay the costs of the Health Care Complaints Commission of or incidental to 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

Amendments 26 February 2016 - Typographical error 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: 26 February 2016

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Judgment (27 paragraphs)

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