Health Care Complaints Commission v Sammy

Catchwords: OCCUPATIONS — Medical practitioners — Misconduct and discipline — Disciplinary tribunal — Stage 1 and Stage 2 hearings combined — Self-prescribing — False prescribing — Impairment — Unsatisfactory professional conduct — Professional misconduct — Found fit to practise — Protection of the health and safety of the public — Reprimand — Conditions imposed — Costs

Legislation Cited: Civil and Administrative Tribunal 2013 (NSW)
Health Practitioner Regulation National Law (NSW)
Poisons and Therapeutic Goods Act 1966 (NSW)
Health Practitioner Regulation (Adoption of National Law) Regulation 2025
Poisons and Therapeutic Goods Regulation 2008

Cases Cited: Asar v Medical Council of NSW [2019] NSWCATOD 132
Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362
Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186
Grant v HCCC [2003] NSWCA 73
Hampshire v Health Care Complaints Commission [2021] NSWCA 283
Health Care Complaints Commission v Balafas (No 2) [2021] NSWCATOD 175
Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154
Health Care Complaints Commission v CGI [2024] NSWCATOD 125
Health Care Complaints Commission v Cooke [2026] NSWCATOD 40
Health Care Complaints Commission v Do [2014] NSWCA 307
Health Care Complaints Commission v Dr Anne Amigo [2012] NSWMT 13
Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT 13
Health Care Complaints Commission v Echano [2018] NSWCATOD 30
Health Care Complaints Commission v Fisher [2016] NSWCATOD 62
Health Care Complaints Commission v Karalasingham [2019] NSWCATOD 23
Health Care Complaints Commission v Khalighimonfared (No 2) [2022] NSWCATOD 101
Health Care Complaints Commission v Khan [2014] NSWCATOD 83
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264
Health Care Complaints Commission v Litchfield (No 3) (Costs) [2023] NSWCATOD 44
Health Care Complaints Commission v Liu [2016] NSWCATOD 133
Health Care Complaints Commission v Mikhail [2021] NSWCATOD 103
Health Care Complaints Commission v Murtagh [2024] NSWCATOD 127
Health Care Complaints Commission v Paris-Browne [2017] NSWCATOD 70
Health Care Complaints Commission v Philipiah [2013] NSWCA 342
Health Care Complaints Commission v Reid [2018] NSWCATOD 162
Health Care Complaints Commission v Smith [2016] NSWCATOD 93
Health Care Complaints Commission v Suri [2025] NSWCATOD 43
Health Care Complaints Commission v XC [2015] NSWCATOD 9
Jan v Health Care Complaints Commission [2021] NSWSC 350
Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150
Medical Council of NSW v Ameisen (No 2) [2024] NSWCATOD 85
Morsingh v Health Care Complaints Commission [2022] NSWCA 106
NSW v Stanley [2007] NSWCA 330
Peeke v Medical Board of Victoria (Supreme Court (Vic), Marks J, 19 January 1994, unrep)
Prakesh v Health Care Complaints Commission [2006] NSWCA 153
Pridgeon v Medical Council of New South Wales [2022] NSWCA 60
Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738
Puri v Medical Council of New South Wales (No 2) [2024] NSWCATOD 122
Qasim v Health Care Complaints Commission [2015] NSWCA 282
Qasim v Medical Council of New South Wales [2021] NSWCA 173
Rahman v Health Care Complaints Commission [2021] NSWCA 247
Rahman v Medical Council of New South Wales [2024] NSWCATOD 145
Reimers v Health Care Complaints Commission [2012] NSWCA 317
Sabag v Health Care Complaints Commission [2001] NSWCA 411
Safi v Medical Council of New South Wales [2022] NSWCATOD 30
Spicer v NSW Medical Council (Court of Appeal (NSW), 19 February 1981, unrep)
Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111

Category: Principal judgment

Parties: Health Care Complaints Commission (Applicant)
Dr Sunny Singh Sammy (Respondent)

Representation: Counsel:
Kumar K (Respondent)
Solicitors:
Health Care Complaints Commission (Applicant)
HWLE Lawyers (Respondent)

File Number(s): 2025/00276131

Publication restriction: The publication of the persons named in the schedule to the Complaint is prohibited under s 64 of the Civil and Administrative Tribunal Act 2013.
Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure or publication of Conditions 5-16 of the Tribunal’s orders is prohibited with the exception of the Medical Council, the Australian Health Practitioner Regulation Agency, the Medical Board of Australia, and the practitioner’s treating doctors.

REASONS FOR DECISION

1. Since 9 January 2012, the respondent (also referred to as the practitioner) has been registered as a medical practitioner in New South Wales, under the Health Practitioner Regulation National Law (NSW) (National Law). By application filed on 18 July 2025 (the application), the applicant seeks disciplinary findings and orders, including cancellation of the respondent’s registration, with a non-review period of 12 months.

2. Ultimately, we decided not to make an order that the respondent’s registration be cancelled. Instead, we decided to impose conditions on the respondent’s registration, and to make an order that the respondent be reprimanded. To put our decision in context, we provide the following brief overview, followed by our more detailed consideration.

3. The respondent has a long history of self-prescribing and misuse of hypnotic medications and alcohol. He came to the attention of the Pharmaceutical Services Unit (PSU) which is part of NSW Health, in early 2015. A report was prepared by the PSU, which noted that the respondent, himself, reported that from 2012 he was self-prescribing zolpidem, which is a hypnotic drug, also known by the brand name Stilnox. Zolpidem is listed under what is commonly referred to as Schedule 4D, which contains a list of medications that are prescribed restricted substances within the meaning of the Poisons and Therapeutic Goods Act 1966 (NSW) (the Poisons Act), being drugs contained in ​​Appendix D of the Poisons and Therapeutic Goods Regulation 2008.

4. Since coming to the PSU’s attention, there have been several regulatory interventions, including a hearing under s 150 of the National Law in 2015 (the first s 150 hearing). Nevertheless, it was not until a second hearing under s 150 of the National Law, in November 2023 (the second s 150 hearing), that conditions on the respondent’s registration were first applied. By the time of the second s 150 hearing, the respondent had been, between November 2021 and September 2023, prescribing medications with a hypnotic effect, in the name of one of three former patients, but had been collecting and diverting these medications to his own use. During that period, he had also continued to self-prescribe.

5. Restrictions on the respondent’s registration were imposed by the Medical Council of New South Wales (the Council) after the second s 150 hearing. The conditions were, broadly, concerned with the following: not treating or prescribing, administering, or supplying medications to himself and persons with which he has a personal connection (as defined in the conditions); obtaining Council approval prior to changing practice; ongoing drug screening; and ongoing treatment, including by a general practitioner and a psychiatrist with qualifications in addiction medicine; and attending 3 monthly prescribed health assessments and review interviews. The focus of the restrictions, insofar as medications were concerned, was on hypnotic medications commonly used to manage sleep disorders, like insomnia (the hypnotic medications). These are known as “z” drugs, such as zolpidem and zopiclone. At the time of the hearing before the Tribunal, the conditions provided that the respondent was prohibited from supplying or possessing Schedule 4D and Schedule 8 drugs.

6. The respondent has not practised since late November 2023. The last instance of diverting medications to his own use is September 2023. By the date of the hearing before the Tribunal, he had abstained from using hypnotic drugs and alcohol for a “lengthy period”, as described by the applicant. He is also being treated for Attention Deficit Hyperactivity Disorder (ADHD). The applicant’s expert described his hypnotic use disorder and substance abuse disorder as being “in remission”; and noted that his ADHD is now under treatment. The respondent continues to be treated by a general practitioner and a consultant addiction psychiatrist.

7. Despite the apparent turn around in the respondent’s behaviour, the applicant contends that the respondent’s registration should be cancelled with a non-review period of 12 months; and submits that it is uncontroversial that the respondent is guilty of professional misconduct, and to cancel his registration is appropriate having regard to the longstanding and egregious breaches of professional standards. Cancellation of the respondent’s registration is contended to be necessary to adequately denounce the practitioner’s conduct in order to adequately protect the health and safety of the public, in all its respects.

8. The registration should be cancelled, so it is contended, for the following reasons:

9. the extended period of self-prescribing;

10. the pattern of behaviour of prescribing to patients and diverting medications to his own use and the concomitant breach of trust with patients and pharmacists;

11. the harm done to patients whose records, wrongly, show a history of substantial use of hypnotic medications;

12. that the practitioner took steps to obfuscate his behaviour and minimise the problems;

13. that despite warnings from various regulatory bodies, since 2015, and despite having support from treating practitioners from 2010, including a general practitioner, psychiatrist and psychologist, the respondent’s behaviour did not, relevantly, improve until late 2023 or early 2024; and

14. that there is a risk of his return to using hypnotic medications.

15. As to the last-mentioned point, the applicant contends that this is a risk present with all substance use dependencies, but would be exacerbated in this case if the respondent is allowed to return to practice, where he will be amongst patients, have access to prescriptions (despite any conditions) and be subject to psycho-social stressors.

16. Both parties relied on the authority of Health Care Complaints Commission v Do [2014] NSWCA 307 (Do) for the proposition (which we accept) that the health and safety of the public is a broad concept and extends beyond the safety of a particular practitioner’s patients, to protecting patients of other practitioners who may engage in conduct akin to that of the identified practitioner, and extends to preserving the integrity of the health system. The parties were at odds, however, as to whether it was necessary, in this case, to cancel the practitioner’s registration, to adequately protect the public.

17. After hearing from the respondent’s treating general practitioner, Dr Sun Woo Kim, and his treating psychiatrist, Dr YiChao Liang MBBS, FRANZCP, Certificate of Addiction Psychiatry and Conjoint Senior Lecturer, who specialises in substance abuse disorders and also hearing from the expert called by the applicant, Professor Demirkol, MD, MSc, MMed (Pain Mgt), PhD, FAFPHM, FAFChAM, AFRACMA, GAICD who is a medical practitioner specialising in addiction and public health, we are satisfied that, under strict conditions, the respondent could be expected to return safely to practice and keep on the positive trajectory that he is now on. Further, after hearing from these experts and from the respondent, himself, we are satisfied that he has developed sufficient insight and an appreciation of the damage he caused to patients and more widely to the standing of the health profession, that it is not necessary to cancel his registration, as a form of specific deterrence. Additionally, whilst we accept that it was open to us to cancel the respondent’s registration, to denounce his conduct as a step in protecting the broader aspects of the health and safety of the public, we found it not to be necessary, on the facts and circumstances of this case. We explain this in our reasons below.

The application for disciplinary findings and orders

12. The application specifies three Complaints alleging the respondent is guilty of unsatisfactory professional conduct pursuant to ss 139B(1)(l) and 139B(1)(c) of the National Law. Complaint Four of the application alleged the respondent is guilty of professional misconduct under s 139E of the National Law and Complaint Five asserted that pursuant to s 144(d) of the National Law, the respondent has an impairment within the meaning of s 5 of the National Law (together, the Complaint).

The legislation

13. Section 149C of the National Law relevantly provides:

149C Tribunal may suspend or cancel registration in certain cases [NSW]

(1) The Tribunal may suspend a registered health practitioner’s registration for a specified period or cancel the registered health practitioner’s registration if the Tribunal is satisfied—

(a) the practitioner is not competent to practise the practitioner’s profession; or

(b) the practitioner is guilty of professional misconduct; or

(c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner’s profession; or

(d) the practitioner is not a suitable person for registration in the practitioner’s profession.

14. Where one of the factors identified in s 149C(1) is made out, the Tribunal has a discretion to cancel a practitioner’s registration. Relevant to the exercise of the discretion under s 149C of the National Law is s 3B of the National Law. It provides as follows:

3B Objective and guiding principle [NSW]

In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.

Note—

This section is an additional New South Wales provision.

15. The guiding principles for exercising any power under the National Law are found in s 3A of the National Law, which relevantly provides:

3A Guiding principles [NSW]

(1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration.

(2) The other guiding principles of the national registration and accreditation scheme are as follows—

(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;

(a1) the scheme is to ensure the development of a culturally safe and respectful health workforce that—

(i) is responsive to Aboriginal and Torres Strait Islander Peoples and their health; and

(ii) contributes to the elimination of racism in the provision of health services;

Example—

Codes and guidelines developed and approved by National Boards under section 39 may provide guidance to health practitioners about the provision of culturally safe and respectful health care.

(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.

16. Clause 9 of Div 3 of Sch 5 of the Civil and Administrative Tribunal 2013 (NSW) (NCAT Act) is also relevant. It provides as follows:

9 Certain objectives and principles under National Law to be applied

(1) The Tribunal, when exercising its Division functions for the purposes of the National Law, is under a duty to observe the objectives and principles referred to in sections 3 and 3A of the National Law.

(2) The provisions of this clause are in addition to, and do not limit, the provisions of section 36(5) of this Act.

17. Section 36(5) of the NCAT Act, relevantly, provides as follows:

36 Guiding principle to be applied to practice and procedure

…

(5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

The protection of the health and safety of the public

18. As was said in Do at [35] (Meagher JA, Basten JA agreeing at [1], Emmett JA agreeing at [56]):

“The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.”

19. It was also said at [39]-[40]:

“39 In concluding that the public could be protected adequately by the imposition of conditions which had to be complied with before the respondent could reapply for registration, the Tribunal focused only on the protection of the public from further malpractice or misconduct of the respondent. It did not address at all the public interest in having the respondent’s conduct denounced as unacceptable. Nor did it address the full implications of its finding that the respondent’s conduct, although contained or confined, had revealed her ‘knowledge, skill and judgment in the practice of medicine’ to be significantly below the standard reasonably to be expected of a practitioner of her level of training and experience: [2013] NSWMT 7 at [144].

40 In not addressing these matters the Tribunal failed to give proper consideration to the full scope of the objective of protecting the health and safety of the public, as it was required to do by ss 3A and 4 of the National Law. It follows that the Commission’s principal argument should be upheld and that this Court must re-exercise the Tribunal’s disciplinary power in the light of the Tribunal’s earlier findings.”

20. The Court of Appeal in Do overturned the Tribunal’s decision to not make a disqualification order, finding instead that the practitioner’s “significant and continuing departures from acceptable and safe medical practice required that the respondent’s conduct be marked publicly as justifying cancellation of her registration and that she be disqualified from being registered for a period of time” (Do at [43]).

21. After noting that the order “will make plain that conduct of the kind engaged in is unacceptable” which we referenced above, the Court said (also, at [43]) that this was “particularly in circumstances where there is a risk that the practitioner’s objective and independent judgment might be compromised because the patient is someone with whom he or she has a close personal relationship, as was the case here.” This last-mentioned reference to “the practitioner” is a reference to practitioners who might find themselves in similar circumstances to the practitioner the subject of the disciplinary proceedings (i.e., other practitioners and not the respondent in the case). The caution is addressed to the public safety concern of denouncement and general deterrence.

22. Do has been cited multiple times with approval on this point: Morsingh v Health Care Complaints Commission [2022] NSWCA 106 at [86]; Hampshire v Health Care Complaints Commission [2021] NSWCA 283 at [71], [79].

23. Nevertheless, there are other indications (including as referenced in Do) that the “ultimate issue of public interest” is “present fitness to practise”.

24. In Do, it was said at [37]:

“In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258):

‘It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest.’”

25. Further, in Do*,* the Court of Appeal identified that the substantive reason given by the Tribunal for not cancelling the practitioner’s registration was as follows (at [32]):

“‘the public would be adequately protected if Dr Do, upon application for registration, were to be subject to the conditions proposed by the Commission’: [2013] NSWMT 16 at [14].”

26. The Court of Appeal found that the Tribunal, in exercising its discretion in making the protective orders, had failed to take into account two factors: (1) the public interest in denouncement of the practitioner’s conduct; and (2) that the practitioner’s conduct revealed (on the Tribunal’s own findings) that she did not have acceptable knowledge, skill and judgment as a medical practitioner. The Court said at [39]:

“In concluding that the public could be protected adequately by the imposition of conditions which had to be complied with before the respondent could reapply for registration, the Tribunal focused only on the protection of the public from further malpractice or misconduct of the respondent. It did not address at all the public interest in having the respondent’s conduct denounced as unacceptable. Nor did it address the full implications of its finding that the respondent’s conduct, although contained or confined, had revealed her ‘knowledge, skill and judgment in the practice of medicine’ to be significantly below the standard reasonably to be expected of a practitioner of her level of training and experience: [2013] NSWMT 7 at [144].”

27. It was said at [40]:

“In not addressing these matters the Tribunal failed to give proper consideration to the full scope of the objective of protecting the health and safety of the public, as it was required to do by ss 3A and 4 of the National Law.”

28. The Tribunal had not had due regard to the respondent’s competence (at [41]-[43]), which included deliberately ignoring specialist advice concerning the treatment of her partner, and the serious misconduct in the prescription and administration of “grossly inappropriate” medication which extended over two years. The Court said at [41]:

“Those findings were as to the respondent’s competence to practise medicine and as to serious misconduct which extended over a period of two years. That misconduct included the prescription and administration of a combination of grossly inappropriate addictive opiates and dangerous psychotropic medication; the deliberate ignoring of the advice and recommendations of the experienced specialists who were consulted; and the inappropriate medical treatment of her partner: [2013] NSWMT 7 at [138], [140], [141], [142].”

29. The Court noted at [43]:

“These significant and continuing departures from acceptable and safe medical practice required that the respondent’s conduct be marked publicly as justifying cancellation of her registration and that she be disqualified from being registered for a period of time.”

30. In summary, whilst due weight must be given to a practitioner’s present fitness to practise (or unfitness), it is appropriate to not to lose sight of the wider purpose behind cancelling a practitioner’s registration. We proceed on this basis.

31. Here, the applicant contends that there have been significant and continuing departures from acceptable and safe medical practice. Consequently, even if we are satisfied that the respondent can, with appropriate conditions, return safely to the practice of medicine, the applicant submits that the exercise of our discretion would miscarry if we do not cancel the respondent’s registration for a period. This is, it is contended, because his departures from professional standards were so longstanding and so egregious that no other order would be sufficient to protect the public safety in all its aspects.

32. To this end, the reference in Do (at [35]) to “protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession” is particularly apposite. It is conceivable that there may be other practitioners who find themselves, for whatsoever reason, with a substance use disorder, and whose judgment may therefore be compromised, who may be affected by seeing the outcome in this case. We therefore accept that we must consider the impact that our decision will have on those practitioners and the integrity of the health profession.

33. The respondent identified some cases where a practitioner’s registration was not cancelled, despite professional misconduct. However, the applicant emphasised that each case must be considered on its merits and orders made in one case do not necessarily reflect what might be appropriate in this case. We accept that to be the position: we must decide this case on its facts and circumstances.

Range of protective orders

34. Under s 149A(1)(a) of the National Law, the Tribunal may reprimand the practitioner, under paragraph (b) the Tribunal may impose conditions on the practitioner’s registration and under paragraph (c) may order the practitioner to seek and undergo medical treatment. Each of these orders may be made without a finding first being made of professional misconduct or other serious finding. Under s 149C(1) of the National Law, the Tribunal may suspend a registered health practitioner’s registration for a specified period or cancel the registration. However, a suspension or cancellation may only be ordered if the Tribunal is satisfied of any one of the four matters contained in paragraphs (a) to (d). The matters in s 149C(1)(a)-(d) are exhaustive and are not cumulative. They each require the Tribunal to make findings, that would not lightly be made, including: incompetence, professional misconduct and unfitness to practise.

35. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 (Chen), Basten JA held that a decision to cancel registration would depend upon the nature and seriousness of the conduct. Justice Basten at [19] (footnotes omitted):

“The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term ‘professional misconduct’ does not have a specific meaning; it is merely a category of ‘unsatisfactory professional conduct’ which is sufficiently serious to justify suspension or cancellation. The phrase ‘unsatisfactory professional conduct’ is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, overservicing and, finally, any other improper or unethical conduct relating to the practice of the practitioner’s profession.”

36. The conduct contained in s 149C(1)(a)-(d) that warrants suspension or cancellation requires consideration of the nature and seriousness of the conduct and the level of departure from professional conduct.

37. The structure of the National Law, in this regard, indicates that suspension and cancellation may be ordered in the more serious cases.

38. In Chen*,* the conduct that warranted cancellation included that the practitioner over-prescribed drugs of addiction to 15 patients and failed to maintain adequate medical records, which constituted unsatisfactory professional conduct and professional misconduct. Cancellation was appropriate due to the gravity of the misconduct, and the Tribunal’s concerns for the ability of the practitioner to generally practise safe medicine in the absence of any evidence or information to the contrary. This finding of fact was not disturbed by the Court of Appeal.

39. In Spicer v NSW Medical Council (Court of Appeal (NSW), 19 February 1981, unrep), the Court of Appeal (Hope JA, Reynolds and Hutley JJA agreeing), a case decided before the National Law but still cited with approval (see for example Asar v Medical Council of NSW [2019] NSWCATOD 132 at [16]; Health Care Complaints Commission v Echano [2018] NSWCATOD 30 at [60]) identified that “it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community” and if done in a way that is reckless or shows a disregard to the law, then “it cannot be said that he is fitted at such a time to be a medical practitioner”.

40. In Rahman v H**ealth C**are C**omplaints C**ommission [2021] NSWCA 247 at [65] per Basten JA (Bell P and Macfarlan JA agreeing), the Court of Appeal recently stated that a medical practitioner with a history of inappropriately prescribing drugs may be subject to cancellation, even though he had conducted himself without cause for complaint for a period of five years; because greater leniency would “set a standard of delinquency”, which would “diminish public confidence in the profession”.

41. In other cases, a suspension coupled to restrictive conditions was said to be appropriate. For instance, in Health Care Complaints Commission v Suri [2025] NSWCATOD 43, the Tribunal ordered that the medical practitioner’s registration be suspended for six months, and imposed conditions on his registration upon his resumption of practice. The Tribunal had, in the Stage One hearing, determined that the practitioner was guilty of both unsatisfactory professional conduct and professional misconduct. The practitioner was deficient in the necessary knowledge of his practice (at [50(3)]), and had engaged in various conduct, including failing to obtain informed consent, inappropriately excising lesions and with inappropriate techniques, making approximately 59 incorrect Medicare payment claims, and offering to pay a patient to withdraw the complaint made by the patient to the HCCC. The Tribunal was satisfied that the practitioner had the skill and experience to function well as a medical practitioner specialist general practitioner (GP), and found as follows (Health Care Complaints Commission v Suri [2025] NSWCATOD 43 at [50(11)]);

“The imposition of a suspension and restrictive conditions does have a deterrent impact both specifically to the Respondent and generally to the medical profession. This judgment will be published to the world at large and experience shows the details of this case may well be published further in profession specific publications and in the general press. Such publications will enhance the deterrent impact of this decision. It will also illustrate the regulatory control of the profession and raise the confidence of the public in the profession.”

42. The respondent contended that a reprimand, too, is a serious matter that may have serious implications for the practitioner, and may be regarded as a serious denouncement of conduct. As noted in Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 at [14], in Peeke v Medical Board of Victoria (Supreme Court (Vic), Marks J, 19 January 1994, unrep) it was said:

“I am not able to agree with the Board that a reprimand is a trivial penalty. It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications.”

43. In Health Care Complaints Commission v Paris-Browne [2017] NSWCATOD 70 at [31], the Tribunal accepted the proposition that a reprimand will serve as a “reminder to the profession of the unacceptability of the conduct”, a proposition from H**ealth C**are C**omplaints C**ommission v Dr Anne Amigo [2012] NSWMT 13 at [49], “and publicly mark the seriousness of the departure from the standard of practice that the public is entitled to expect from senior specialist practitioners”.

44. We pause to note that we were not directed to a case where the practitioner’s registration was cancelled despite the Tribunal being satisfied that, with conditions, the practitioner was presently fit to practise. Do was not such a case, as the Court of Appeal highlighted the Tribunal’s finding that the practitioner’s knowledge, skill and judgment was significantly below the standard reasonably to be expected of a practitioner of her level of training and experience at [18], [39]. Rahman v Medical Council of New South Wales [2024] NSWCATOD 145 also was not such a case, as the practitioner had not satisfied the Tribunal that he fully understood the ethical considerations, as demonstrated by his “pursuit of novel and unproven hair loss therapies”: at [37]. H**ealth C**are C**omplaints C**ommission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 was also not such a case, as the Court identified that, although some time had passed since the conduct complained of (approximately four or more years), that no explanation was offered which made it unlikely that the conduct would occur again, and that in cases such as this before the Court, “the Tribunal and this Court should not assume that the doctor has become a reformed person”: at 635-637.

45. Nevertheless, we accept that an important aspect of the public’s safety is to protect patients from the similar conduct by other practitioners, to uphold professional standards and to preserve the public’s trust in the health profession. Each of these factors are served by cancelling the registration of a practitioner whose conduct has seriously departed from professional standards. We accept that cancellation of registration may well be appropriate in cases where there have been serious or longstanding departures from professional standards, even where the practitioner has reformed his conduct, or conditions might be effective to protect the safety of his patients. In other words, we accept that we should not shy away from suspending or cancelling the respondent’s registration, simply because we may be satisfied that, with conditions, he is fit to practise or that the conditions will sufficiently ameliorate the risks to the safety of his patients.

46. Finally, we also accept that orders made in other cases (even ostensibly similar cases) do not lead us to the appropriate orders that should be made in this case. We must decide, applying the facts of this case to the relevant provisions of the National Law, what the appropriate orders should be.

Professional misconduct

47. As explained below we are satisfied that the respondent is guilty of professional misconduct. Accordingly, our power to cancel the practitioner’s registration is, here, predicated on s 149C(1)(b) of the National Law.

48. Professional misconduct is defined in s 139E of the National Law to be unsatisfactory professional conduct which is (or more than one instance of unsatisfactory professional conduct that when considered together is) sufficiently serious to justify suspension or cancellation: see above as extracted from Chen at [19]. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v H**ealth C**are C**omplaints C**ommission [2001] NSWCA 411 at [82]. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: H**ealth C**are C**omplaints C**ommission v Litchfield at 638.

Unsatisfactory professional Conduct

49. Unsatisfactory professional conduct is defined in s 139B of the National Law, relevantly as follows:

(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following—

(a) Conduct significantly below reasonable standard

Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

…

(c) Contravention of conditions of registration or undertaking

A contravention by the practitioner (whether by act or omission) of—

(i) a condition to which the practitioner’s registration is subject; or

(ii) an undertaking given to a National Board.

…

(l) Other improper or unethical conduct

Any other improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession.

50. Also relevant is s 139C:

139C Additional matters that constitute unsatisfactory professional conduct of medical practitioners [NSW]

In addition to the matters referred to in section 139B, unsatisfactory professional conduct of a medical practitioner also includes each of the following—

(a) Criminal convictions and criminal findings

Conduct that results in the medical practitioner being convicted of or being made the subject of a criminal finding for any of the following offences—

(i) an offence under section 102 of the Mental Health Act 2007;

(ii) an offence under section 175 of the Children and Young Persons (Care and Protection) Act 1998;

(iii) an offence under section 35 of the Guardianship Act 1987;

(iv) an offence under section 128A, 128B, 129 or 129AA of the Health Insurance Act 1973 of the Commonwealth;

(v) an offence under section 58 of the Private Health Facilities Act 2007.

Admissions as to unsatisfactory professional conduct and professional misconduct

51. As set out below, the respondent admits aspects of the four Complaints that concern unsatisfactory professional conduct and professional misconduct.

52. Section 165H of the National Law provides:

165H No inquiry required if complaint admitted [NSW]

No inquiry need be conducted into a complaint referred to the Tribunal under this Law if the registered health practitioner or student who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal.

53. The Tribunal in Medical Council of NSW v Ameisen (No 2) [2024] NSWCATOD 85 set out the effect of s 165H of the National Law at [10]-[17]:

“10 The National Law provides, in s 165H, that the Tribunal need not hold an inquiry into the complaint where the complaint is admitted. Decisions of the Tribunal explain that the role of the Tribunal in such a case is as follows.

11 In Health Care Complaints Commission v Smith [2016] NSWCATOD 93 at [27], the Tribunal observed that when s 165H is invoked, it is not necessary for there to be an inquiry into the subject matter of the complaint. In that case, the practitioner admitted, in writing on two occasions, the particulars of the complaint, and indicated that he did not intend to contest the allegations against him. The Tribunal observed the following at [29] and [32]:

29 Given the Respondent’s response particularised above, it is therefore not necessary for the Tribunal to be independently satisfied, to the requisite standard of proof, that the conduct the subject of the complaints is established. As earlier noted, at the hearing the Respondent participated in a telephone conference. He answered questions from the members of the Tribunal and restated his position that he consented to the making of the proposed orders. He acknowledged he was aware of the extent of the Prohibition Order and did not wish to make any further submissions as he had no intention of continuing to practise in the field of psychology or related areas.

…

32 Although the Tribunal does not need to conduct an inquiry into the allegations in the complaint it nevertheless it remains for the Tribunal to satisfy itself to the requisite civil standard the admitted conduct constituted unsatisfactory professional conduct and/or professional misconduct. The Tribunal also needs to consider what are appropriate protective orders.

The Tribunal ultimately found the matters particularised proved at [55].

12 In Health Care Complaints Commission v Foster [2022] NSWCATOD 7 the Tribunal observed at [5], that pursuant to s 165H it is unnecessary for the Tribunal to conduct an investigation into each of the complaints and particulars when the respondent makes admissions. However, the Tribunal also observed that it was necessary for the Tribunal to consider the nature and extent of the misconduct of the respondent as admitted by him in order that the Tribunal may consider whether he was guilty of unsatisfactory professional conduct or professional misconduct and make appropriate protective orders: at [6]. It stated at [7]:

7 For completeness, we note that because of the gravity of the allegations made against the respondent the applicant bears an enhanced onus of proof of any factual matter adverse to the interest of the respondent. The onus of proof remains the civil standard, namely on the balance of probabilities, but consistent with the jurisprudence established in this Tribunal in dealing with matters of this kind we approach the determination of the proceedings on the basis that as to any such matter we must be ‘comfortably satisfied’ that it has been established on the balance of probabilities.

13 Similarly, the Tribunal in Health Care Complaints Commission v David Vuong [2022] NSWCATOD 84 at [18] determined that it was necessary for the Tribunal independently to consider the evidence in that matter in order to determine appropriate protective orders.

14 However, the Tribunal in Health Care Complaints Commission v GGO [2024] NSWCATOD 50 at [24] observed that as the Tribunal is required under s 165M(5) of the National Law to comply with s 165M(2), it is necessary that the Tribunal be independently satisfied the facts relied on to establish that the particulars in the complaint are proved.

15 In Health Care Complaints Commission v Cain [2017] NSWCATOD 131 at [12]; Health Care Complaints Commission v Fearon [2018] NSWCATOD 26 at [5]; Health Care Complaints Commission v Murray [2018] NSWCATOD 119 at [25], the Tribunal stated that ‘Except where conceded in writing, [the Tribunal] must make findings in relation to each particular and then determine whether each is established on the balance of probabilities’.

16 The operation of s 165H was considered also by Boland AM. ADCJ, in Health Care Complaints Commission v Khan [2014] NSWCATOD 83 at [25]-[30] in considering the question whether the Tribunal has the power to dismiss a complaint under that provision. Her Honour observed at [25] that admission of a complaint does not obviate the need for the Tribunal to ‘independently examine the complaint to determine appropriate protective orders, and to provide reasons for any protective orders flowing from the admitted complaint’.

17 The Tribunal in Health Care Complaints Commission v Mortlock [2015] NSWCATOD 136 at [86], in citing Khan, observed that ‘it does not follow that where a party admits to the whole of a complaint that the Tribunal must exercise its power not to conduct an inquiry. It simply means the pre-condition to the exercise of that power conferred by s 165H has been satisfied’.”

54. Here, the respondent has admitted, in writing, aspects of the four Complaints that concern unsatisfactory professional conduct and professional misconduct. He did not admit to every aspect of the Complaint. The day before the hearing, the respondent admitted, in writing, to Complaint Four; that he engaged in unsatisfactory professional conduct, either on one instance or when considered together, of a sufficiently serious nature to justify suspension or cancellation. However, the respondent continued to oppose the protective order sought by the applicant.

55. As extracted above, although the Tribunal does not need to conduct an inquiry into the allegations in a complaint which has been admitted to in writing, “nevertheless it remains for the Tribunal to satisfy itself to the requisite civil standard the admitted conduct constituted unsatisfactory professional conduct and/or professional misconduct”: Health Care Complaints Commission v Smith [2016] NSWCATOD 93. This is consistent with the principle that admissions relate to findings of fact: Johnston v Brightstars Holding Co**mpany Pty Ltd [2014] NSWCA 150 at [80] (Beazley P). Decisions about whether there has been unsatisfactory professional conduct or professional misconduct raise mixed questions of fact and law. Further, on an inquiry, the Tribunal, itself, must be satisfied of the matters that justify the protective orders: National Law, s 149C(1). Accordingly, the admissions by the respondent do not obviate the need for the Tribunal to “independently examine the complaint to determine appropriate protective orders, and to provide reasons for any protective orders flowing from the admitted complaint”: Health Care Complaints Commission v Khan [2014] NSWCATOD 83 at [25]-[30].

56. In order to determine the appropriate protective order, we independently consider whether each of the aspects of the Complaint has been made out, even where admitted by the respondent. There is one aspect of the Complaint that is not admitted because it relates to conduct that is said to amount to an offence. That is discussed below.

The evidence

57. The applicant relied on the HCCC Material (Exhibit A1), the HCCC Additional Material (Exhibit A2), the HCCC Supplementary Material (Exhibit A3), the HCCC Updated Material (Exhibit A4), a report of Professor Demirkol of 1 April 2026 (Exhibit A5), an evidentiary certificate from AHPRA of 26 March 2026 (Exhibit A6), and the HCCC Chronology as an Aide Memoire (MFI A1).

58. In addition, Professor Demirkol, provided oral evidence via audiovisual link (AVL). Professor Demirkol conducted the assessment on the respondent on 25 October 2023, as ordered by the Council pursuant to s 152B of the National Law. Altogether, Professor Demirkol has assessed the practitioner on eight occasions.

59. The respondent relied on the Respondent’s Bundle of Documents (Exhibit R1), which contains a Statement from the respondent himself, the Respondent’s Supplementary Bundle of Documents (Exhibit R2), which contains a Supplementary Statement of the respondent, a pathology report of 26 February 2026 (Exhibit R3) and a Further Supplementary Statement of the respondent (Exhibit R4). The materials include reports from the respondent’s treating practitioners.

60. The respondent gave oral evidence and was cross-examined.

61. In addition, the respondent’s GP and psychiatrist both gave oral evidence and were cross-examined.

Complaint One

62. The particulars of Complaint One are as follows:

“1. Between November 2021 and January 2023, on the dates and in the quantities set out in Annexure A to this Complaint, the practitioner inappropriately self-prescribed Schedule 4 and Schedule 4D medications in circumstances where he had a history of misusing those medications.

2. Between November 2021 and September 2023, on the dates and in the quantities set out in Annexure A to this complaint, the practitioner inappropriately issued prescriptions for Schedule 4 and Schedule 4D medications in the names of Patients A, B and C, and sought the supply and use of the medications, in circumstances where:

a. Patients A, B and C were former patients;

b. the practitioner presented the prescriptions to the named pharmacies on the dates listed in Annexure A;

c. the practitioner diverted the dispensed medication for his own use.

3. By his conduct particularised in Particular 2 of Complaint One the practitioner act contrary to section 12(1)(b) of the Poisons and Therapeutic Goods Act 1966 (NSW).”

63. The respondent admits particulars one and two of Complaint One. Particular 3 was not admitted, as it would be tantamount to admitting to committing an offence.

64. As noted, even where the respondent has admitted to conduct, the Tribunal must itself be satisfied to the requisite civil standard, and must consider what the appropriate protective order, if any, is. Accordingly, we consider each particular, in turn, in order to be independently satisfied of the conduct alleged.

Particular one of Complaint One

65. Particular one requires us to be satisfied of the following:

66. Between November 2021 and January 2023, on the dates and in the quantities set out in Annexure A to this Complaint, the practitioner self-prescribed specified medications (Schedule 4D medications).

67. The respondent had a history of misusing those medications.

68. The self-prescribing was inappropriate.

Self-prescribing Schedule 4D medications

66. The Schedule 4D medications are prescribed restricted substances within the meaning of the Poisons Act, being drugs contained in ​​Appendix D of the Poisons and Therapeutic Goods Regulation 2008.

67. Annexure A identifies four instances, from 24 November 2022 to 27 November 2022, where it is alleged that the respondent completed prescriptions for two Schedule 4D medications, being zolpidem and temazepam (which is a benzodiazepine), in his own name, collected them from a pharmacy and used the medications himself.

68. The respondent admitted particular one and did not contend that Annexure A was not accurate.

69. It is immediately apparent that when the respondent prescribed medications in his own name, he was self-prescribing.

70. We are therefore satisfied that between November 2021 and January 2023, on the dates and in the quantities set out in Annexure A to this Complaint, the practitioner self-prescribed Schedule 4D medications. The date range for the self-prescribing is well within the range identified by the applicant.

History of using hypnotic medications

71. The respondent is a long-standing patient of The Practice Blacktown, New South Wales, where Dr Kim now practises. Dr Kim identified that by 2014, the respondent had been struggling with long-term insomnia and had been intermittently taking Stilnox, Restavit, temazepam and melatonin; each of which has some sedating effect. In 2015, he was the subject of an investigation by the PSU which included concerns about his self-prescribing. At the first s 150 hearing, which followed the PSU investigation, the respondent confirmed that he had been self-prescribing Stilnox (zolpidem). At the first s 150 hearing, the respondent explained that he started self-prescribing after he experienced a number of challenges, including bullying at work and heightened personal stressors, as he felt too busy to attend his GP. The delegates at the first s 150 hearing, whilst noting that the PSU investigation did not identify evidence of a risk to the general patient community, noted that he may have been at risk to himself, due to the self-prescribing, and highlighted the importance of his seeking assistance from his own GP.

72. Dr Kim reported that in 2022 the respondent had been taking tramadol regularly for the past five years and struggled with withdrawal symptoms. Tramadol is an opiate, and a Schedule 4D drug. Dr Kim noted that the respondent had been referred to Odyssey House Multicultural Program, which is a service that provides drug and alcohol counselling in a range of community languages to people with drug and alcohol use issues, and that he was seeing a drug and alcohol counsellor linked with Blacktown Hospital. The respondent was also referred to a drug and alcohol specialist, Dr Sharma, and was regularly following up with his psychologist.

73. By February 2023 the respondent discussed, with his GP, his “alcohol intake as a secondary coping mechanism for stress”. In July 2022, he admitted to binge drinking every weekend; whereupon he was “linked back up” with the Hills Clinic and Odyssey house.

74. Whilst the respondent posits various explanations for his conduct, including personal stressors and his mental and physical health, the issue we are here concerned with is an aspect of the first particular of Complaint one: that an important part of the context in which the respondent was self-prescribing Schedule 4D medications, was his history of misusing Schedule 4 and Schedule 4D medications. We are, here, concerned with whether he was misusing medications and not why he was misusing them, if he was indeed misusing them.

75. On 23 January 2023 the respondent was admitted to the Hills Clinic and reported dependence on Stilnox. On 7 February 2023, the respondent was diagnosed by the consultant psychiatrist at the Hills Clinic with a prescription drug addiction. From the evidence, this appears to be the first time the respondent was diagnosed with a substance use disorder, but he nonetheless has a long history of using prescription medication and alcohol. His admission into treatment programs including Odyssey House, the Hills Clinic and Alcoholics Anonymous meetings, prior to this diagnosis, also speaks to a dependence.

76. The respondent has stated that he did not tell his treating psychiatrist and GP about his prescription medication use. The respondent stated in cross-examination that he was “dependent” on zolpidem in late 2014. Following this admission, there was some back and forth between the parties about whether there is a distinction between “addiction” to a drug and “dependency” on a drug. The applicant sought to clarify this issue with Dr Liang in cross-examination, who stated that addiction and dependence are the same thing.

77. On 27 February 2024, the respondent had his first consultation with Dr Liang, who reported that the respondent “had” a “history of alcohol use disorder” and “had” a “history of hypnotic medication use disorder”. Dr Liang diagnosed the respondent with alcohol use disorder, and Benzodiazepine use disorder in remission. Dr Liang in cross-examination stated that the respondent has acknowledged that he has substance abuse disorder, which accords with Dr Liang’s notes of his consultation with the respondent on 27 February 2024. On 21 June 2024, Professor Demirkol concluded that the respondent was in the early stages of his recovery from a severe hypnotic use disorder.

78. As already noted, the respondent has admitted all aspects of particular one of Complaint one and we are satisfied from the evidence, of which we have given a brief recount, that he was indeed misusing hypnotic medications and alcohol during the period in which he was self-prescribing.

79. This aspect of particular one is made out.

The self-prescribing was inappropriate

80. We have indicated our satisfaction that the respondent was self-prescribing as set out in Annexure A to the Complaint.

81. The applicant submits that the self-prescribing was “inappropriate”, and constitutes “improper or unethical conduct” (National Law, s 139B(1)(l)). The applicant submits that in professional disciplinary proceedings, impropriety means a breach of the standards of conduct that would be expected of a person in the position of the practitioner (Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]), and that, under s 41 of the National Law, codes approved by the National Board are admissible evidence of what constitutes appropriate professional conduct or practice for the profession. The applicant submits that a code of conduct may be relevant to considering whether conduct is improper or unethical.

82. The National Law relevantly provides:

39 Codes and guidelines

A National Board may develop and approve codes and guidelines—

(a) to provide guidance to the health practitioners it registers; and

(b) about other matters relevant to the exercise of its functions.

…

41 Use of registration standards, codes or guidelines in disciplinary proceedings

An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession.

83. We accept that a code of conduct approved by the National Board may be relevant to considering whether a practitioner’s conduct is improper or unethical.

84. The respondent’s self-prescribing occurred in the context that, in the first s 150 hearing (4 May 2015), the respondent “acknowledge[d] that self-prescribing is inappropriate and that he must always seek assistance from his GP”.

85. Furthermore, in October 2020, the National Board released the Medical Board Good Medical Practice: A Code of Conduct for Doctors in Australia (the code of conduct). Pursuant to the code of conduct, under the section headed “your health”, “good medical practice” is stated to involve “not self-prescribing”.

86. We see no argument open that the respondent was not self-prescribing contrary to the code of conduct, and indeed, the respondent did not suggest that there was such an argument available.

87. We are satisfied that the respondent breached this aspect of the code of conduct. Accordingly, we are satisfied that the respondent’s self-prescribing was inappropriate. This aspect of particular one is also made out.

Conclusion in relation to Particular one of Complaint One.

88. Particular one is made out.

Particular two of Complaint One

89. In order to be satisfied that particular two is made out, we must be satisfied of the following:

90. Between November 2021 and September 2023, on the dates and in the quantities set out in Annexure A to this Complaint, the practitioner issued prescriptions for Schedule 4 and Schedule 4D medications in the names of Patients A, B and C.

91. Patients A, B and C were former patients.

92. The practitioner presented the prescriptions to the named pharmacies on the dates listed in Annexure A.

93. The practitioner diverted the dispensed medication for his own use.

94. This was inappropriate.

Prescribing in the names of Patients A, B and C

90. Annexure A identifies 201 instances where the respondent completed prescriptions for either Schedule 4 or Schedule 4D medications such as, tramadol, olanzapine and clonidine, zolpidem and diazepam, in the names of one of three specified persons. The specified persons are identified in the Schedule to the Complaint and referred to respectively as Patient A, Patient B and Patient C.

91. To put this in context, the respondent dispensed prescriptions for 2174 tablets in one year in the name of one of the three patients, for his own use. We note that the date prescribed and the date dispensed are generally either the same date, or close in time.

Patients A, B and C were former patients

92. There is no dispute, and we accept from the materials filed, that the persons referred to as Patients A, B and C were each former patients of the respondent. There is also a personal connection between Patient C and the respondent.

93. The fact that the names of the person on the prescriptions were those of former patients is significant in relation to the question of who the intended recipient of the medications at the time was. As the prescriptions were drawn in the name of former patients, not current patients, we infer that at the time they were drawn, the medications were not intended for them and were instead intended for the respondent.

The respondent collected the medications and diverted them to his own use

94. As to the instances where the respondent prescribed medications in another person’s name, the respondent was cross-examined in relation to a few such instances. The respondent accepted that he, himself, collected the medications from pharmacists; and that he diverted the medications to his own use. For example, in respect of the false prescription of tramadol, he accepted that he presented prescriptions to pharmacies, which he had issued in the names of Patients A and B, starting from November 2021, and diverted the medication for his own use. The respondent accepted that he prescribed in Patient C’s name on three occasions in 2022 and 2023, but diverted the medications to his own use.

95. The respondent did not seek to single out any instance of prescribing referred to in Annexure A where the medications were not diverted to his own use.

96. We are therefore satisfied that this aspect of the particular is made out.

The false prescribing was inappropriate

97. The applicant submits that the false prescribing was “inappropriate”, and falls under “improper or unethical conduct” (National Law, s 139B(1)(l)).

98. As identified in relation to particular two, the respondent admitted in cross-examination in relation to several examples, as set out in Annexure A, that he picked up the medications himself from the pharmacies, and took them for his own use.

99. We are satisfied that, at the time of the conduct, the respondent knew that he was misrepresenting the position to pharmacists, who would assume that the prescriptions were for the patients. By way of example, the respondent in cross-examination agreed that he knew that writing a prescription, taking it to the pharmacy with Patient C’s name on it and collecting it for his own use was the wrong thing to do. Another instance included where the respondent accepted in cross-examination that he wrote a prescription for Stilnox for one of the three patients on 31 August 2023, which he took to a pharmacy the following day, on 1 September 2023. The respondent accepted that he wrote “early to allow for travel plans” on the prescription so that the pharmacist would give it to him early, which we take to have meant earlier than otherwise warranted by the dispensing history for that patient. The respondent accepted that there were no travel plans, and that the respondent wanted the medication for himself.

100. There was an additional occasion, wherein the respondent wrote a prescription for one of the three patients on 13 July 2023. The respondent agreed in cross-examination that he took this prescription to a pharmacy to get it dispensed on or around 1 September 2023. It is apparent from the applicant’s material (A1) that a pharmacist at that pharmacy had called Gosford Private Hospital, the hospital referred to on the prescription pad used by the respondent on this instance, and that the hospital requested the pharmacy not to process any further prescriptions with the name of the respondent. The applicant submits that a pharmacist then called the respondent, to communicate that they would not dispense the medication. The respondent agreed that he received a phone call from the pharmacist, and that the phone call was a warning that the respondent ought to stop “doing this”, which we take to be a reference to the conduct of prescribing in a patient’s name but collecting the medication for himself. It is apparent from Annexure A, and the respondent accepted that he continued his conduct at other pharmacies until 15 September 2023.

101. The respondent has not suggested any examples within Annexure A where the medication was intended for the named patient. To the contrary, he admits particular two.

102. The respondent was also cross-examined about the prescriptions pads that he used to write the prescriptions. He accepted, on several instances, that he used a pad he had been given (or taken) when he had worked at the clinic, hospital or aged care facility mentioned on the prescription, but at the time he used the pads, he was no longer associated with that clinic or hospital or aged care facility.

103. The respondent accepted in cross-examination that, at the time, he knew that he should not use another doctor’s prescription pad, and that it was wrong to use a blank pad from a prior workplace, to acquire medications for himself.

104. In one respect, the respondent indicated that some of the medications were obtained by him to manage withdrawal symptoms. However generally, the respondent did not attempt, during the cross-examination, to excuse his conduct; and accepted that it was wrong.

105. The applicant submitted that the respondent’s issuing of the prescriptions for Schedule 4 and Schedule 4D medications in the names of Patients A, B and C was inappropriate. It was inappropriate on numerous bases:

106. Patients A, B and C were former, as opposed to current, patients. There was no evidence that the respondent was treating Patients A, B and C at the time of the prescribing, and thus the issuance of drugs in their names was necessarily not appropriate.

107. The respondent used “blank” prescription pads from at least four previous workplaces, thereby misrepresenting that he continued to be employed there. This included, on occasions, taking the prescription pads of other doctors, crossing out their name and provider number, and writing his own name and provider number.

108. The applicant contended that the respondent put a stamp on at least one of the prescriptions with the details for one of the hospitals he worked at, despite no longer working there. The applicant submits that the inference to be drawn is that in doing so, he misrepresented that he continued to work at the hospital when he did not.

109. We are satisfied as follows:

110. The respondent represented on multiple occasions to a variety of pharmacists (as set out in Annexure A), that prescriptions for Schedule 4 and 4D medications were being sought to be dispensed for the intended use of Patients A, B or C.

111. At the time the prescriptions were written and at the time the prescriptions were dispensed, the medications were not intended for the use of the named patient; they were intended for the use of the respondent.

112. By putting the name of a person other than himself on the prescription, the respondent misrepresented to the pharmacist dispensing the medications who the medications were for.

113. In using prescription pads from former workplaces, the respondent misrepresented to the pharmacist dispensing the medications that he still worked at those places.

114. The respondent obtained the medications as detailed in Annexure A in the circumstances just described.

115. The medication was dispensed by pharmacists on the misrepresentation that the medications were for the treatment of the named patients. This is aptly described as false prescribing. The respondent has not suggested this was due to an oversight, and accepts it was wrong to do as he did. In any event, the prolonged nature of the false prescribing and the acceptance that the patients were former patients and therefore not possibly the target of the medications, indicates the conduct was deliberate.

116. Further, the conduct was misleading in that it indicated that the respondent worked, at the time of prescribing, at the medical workplace indicated on the prescription. This was not correct, of which the respondent must have been aware.

117. In the above circumstances, we are satisfied that the conduct just described was dishonest. The dishonesty marks the conduct as inappropriate.

Conclusion in relation to Complaint One, particular two

110. Particular two of Complaint One is made out.

Particular three of Complaint One

111. Particular three alleges that the practitioner acted contrary to s 12(1)(b) of the Poisons Act.

112. The relevant section provides as follows:

12 Obtaining substances by false representation

(1) A person who, by a representation that the person knows, or ought reasonably to know, is false or misleading in a material respect, obtains, or attempts to obtain, from an authorised person—

(a) a substance specified in Schedule 1, 2, 3 or 7 of the Poisons List, or

(b) a restricted substance,

is guilty of an offence.

Maximum penalty—10 penalty units or imprisonment for 6 months, or both.

113. Pursuant to s 12(2), an “authorised person” includes a pharmacist.

114. As noted earlier, the respondent does not admit this particular; as that would, effectively, be admitting to an offence.

115. We pause to note that it is not for us to decide if an offence was committed. First, we do not consider that that is within our role: Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 at [64]. Second, there may be defences available that we are not here considering, but might be availed of in relation to any proceeding concerning a breach of the Poisons Act.

116. The applicant’s submissions on this particular are as follows:

“The evidence establishes that, contrary to that provision, the practitioner, by his representations (presenting the prescriptions he had written in the names of the purported patients) to the authorised person (the pharmacists) knew, or ought reasonably have known, that his representations were false (because the medication was not intended for the purported patients) and thereby obtained restricted substances (the Schedule 4 drugs).”

117. Unlike particular one, no section of the code of conduct is relied upon. As we apprehend the contention, it is because the conduct breached the Poisons Act, that it is inappropriate. We are not, in terms, being asked to make a finding of guilt. Nevertheless, we do not see how we can say that there has been a breach of the Poisons Act without due regard to any available defences that might arise under the Poisons Act, to which we were not taken, assuming any to exist. The respondent did not admit that the conduct breached the Poisons Act.

118. It is immediately apparent that on the findings we have made in relation to particular two, on the face of it, the conduct appears to be contrary to the express words of s 12(1)(b) of the Poisons Act. However, we do not see that this advances the applicant’s position beyond what has already been said in relation to particulars one and two. This is because we do not make any finding that the respondent, in fact, contravened that section. It is not within our jurisdiction to find that he committed an offence; and we do not so find.

119. We do not find particular three made out.

Complaint one and unsatisfactory professional conduct

120. We are satisfied that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law due to engaging in “improper or unethical conduct relating to the practice or purported practice of medicine” in the circumstances identified above in relation to Complaint One particulars one and two.

121. The conduct of self-prescribing, as explained in relation to particular one, was inappropriate because it was contrary to the applicable code of conduct and the false prescribing, as explained in relation to particular two, was inappropriate because it was dishonest. We are also satisfied that the conduct the subject of these particulars demonstrates that the practitioner, at the time, lacked the judgment reasonably expected of a practitioner of an equivalent level of training or experience: s 139B(1)(a).

122. The conduct the subject of particulars one and two of Complaint One was unsatisfactory professional conduct.

Complaint Two

123. The particulars of Complaint Two are as follows:

“1. On 25 October 2023 the practitioner provided false and misleading information to a psychiatrist during an assessment pursuant to section s152B of the National Law when he:

a. denied issuing prescriptions for Schedule 4 and Schedule 4D drugs to Patient A, Patient B and Patient C between 3 June 2022 and 14 September 2023, in the circumstances of the conduct in Complaint One;

b. said he believed that the prescriptions above were issued by an individual who misused his prescriber number, in circumstances where he knew or ought to have known that he had written the prescriptions;

c. denied any use of zolpidem since 2020, in circumstances where he used Zolpidem on the dates set out in Annexure A to this complaint.”

124. The respondent admits Complaint Two.

125. The assessment under s 152B of the National Law arose because, on 15 September 2023, the Council received a mandatory notification suggesting that the respondent may have acquired certain restricted medications which he had prescribed under the names of other individuals. The assessing addiction medicines and public health medicine specialist was Professor Demirkol, and the assessment occurred on 25 October 2023. Professor Demirkol’s report (dated 4 November 2023) said as follows:

“…Dr Sammy denies issuing any such prescriptions, asserting that since mid 2022 he has lacked any means to access prescribing software using his prescriber number. He believes that these prescriptions were issued by an individual who misused his prescriber number. Despite this, he did not report the matter to the police following his meeting with the MII, as he did not see it necessary. Dr Sammy recognises one of the patients…identified in the SafeScript search by the Council, but cannot explain how someone with access to his prescriber number would also know this patient’s personal details, as well as those of himself and [Patient C], to issue the prescriptions.”

126. We note that this matches particulars 1.a and 1.b of Complaint Two. Professor Demirkol’s report also relevantly states:

“Additionally, he reported that he has not used zolpidem since 2020.”

127. This matches particular 1.c of Complaint Two.

128. There is no suggestion from the respondent that the report misstated what he told Dr Demirkol. As already noted, he admits Complaint Two.

129. We are satisfied that the practitioner provided false and misleading information on the assessment.

130. We are therefore satisfied that Complaint Two is made out.

Complaint Two and unsatisfactory professional conduct

131. The applicant alleges the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law due to engaging in “improper or unethical conduct relating to the practice or purported practice of medicine.”

132. The applicant submits that providing false or misleading information to the Council appointed practitioner is “improper and unethical conduct”, and proffers numerous examples of cases where health practitioners who have provided false or misleading information to the Council have been found to have engaged in improper and unethical conduct.

133. In Health Care Complaints Commission v Cooke [2026] NSWCATOD 40 at [65]-[67], a nurse had made false representations to the Council and her workplace, which the Tribunal found to constitute improper or unethical conduct under s 139B(1)(I). Health Care Complaints Commission v Murtagh [2024] NSWCATOD 127 concerned complaints made against a pharmacist for dispensing numerous drugs in her name and the names of three of her family members without any corresponding entries in the hospital patient system. One of the complaints alleged that the pharmacist provided false information to the Council in a s 150 hearing, which was said to constitute unsatisfactory professional conduct comprising improper or unethical conduct under s 139B(1)(I). The Tribunal found that the pharmacist had provided false information to the Council that the medications dispensed for herself and her family were prescribed by a GP. The Tribunal at [103]-[105]:

“103 When matters were put to Ms Murtagh by the Council in the course of their investigations, she misled them.

104 It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see Health Care Complaints Commission v Chowdhury [2015] NSWCATOD 65 at [81].

105 It was Ms Murtagh’s duty to be candid and honest with the Council. This is an integral part of the proper functioning of the regulatory system. It was improper and unethical of her to provide misleading information. By her actions she demonstrated a disregard for the Council and its role. Again Ms Murtagh failed to identify the moral dimension to her conduct. Her conduct was not in conformity with standards of professional conduct and practice and as such was improper and unethical.”

134. Here, the respondent accepted that he was lying to protect himself. Professor Demirkol, in his report of 4 November 2023 following his assessment of the practitioner on 25 October 2023, wrote that the practitioner “reported that he has not used zolpidem since 2020”, and that the practitioner “believes that these prescriptions were issued by an individual who misused his prescriber number”. The applicant, in cross-examination, asked the respondent whether, given that it was agreed between the parties that the practitioner last used zolpidem in September 2023, whether the practitioner was trying to minimise his problem. He agreed with this proposition. The applicant asked the practitioner whether, when he gave false information to Professor Demirkol by stating that someone other than himself was using his provider number, he was trying to shift responsibility away from himself. He said, in effect, that his answers were not in keeping with the truth, as he was, at the time, in withdrawal and had lost his job. The applicant expressly sought to clarify the practitioner’s response that his answers to Dr Demirkol were not in keeping with the truth, and asked the practitioner whether he deliberately withheld information from Professor Demirkol to make his problems seem not as bad. The practitioner also accepted this proposition.

135. The answers (or statements) provided to Professor Demirkol’s questions were indeed false, at the time they were given, as our reasons for decision in relation to Complaint One explain. Given the subject matter, it is inconceivable that the answers provided to Professor Demirkol were not known by the respondent to be false at the time and indeed, the practitioner accepted, in cross-examination, that he had deliberately withheld information from Professor Demirkol to minimise his problems.

136. Further, given the context that the practitioner had been required by notice under s 152B of the National Law to undergo an examination on the grounds of the Council’s reasonable belief that he “has or may have an impairment”, he ought to have known, if he did not in fact know, that the answers to the questions were important for his own health and safety but also the health and safety of his patients.

137. Providing deliberate falsehoods on such an assessment was improper and unethical: National Law, s 139B(1)(l).

138. The conduct the subject of Complaint Two amounted to unsatisfactory professional conduct.

Complaint Three

139. The particulars of Complaint Three are as follows:

“1. On 17 January 2024 the practitioner contravened condition 1 and 6(d) of his registration by self-prescribing promethazine.

2. On 21 February 2024 the practitioner contravened condition 6(d) of his registration by returning a hair sample drug screening test showing the detection of small to moderate amounts of promethazine.

3. On 12 June 2024 and 14 June 2024, the practitioner contravened condition 6(b) of his registration by returning a urine sample drug screening test showing the detection of dextromethorphan.

4. On or about 23 August 2024, the practitioner contravened condition 6(a) of his registration is circumstances where:

a. on 23 August 2024 the practitioner returned a hair sample drug screening test showing the detection of Tramadol;

b. the practitioner has not been prescribed Tramadol by his treating practitioner and had not been directed to take Tramadol by his treating practitioner.

5. The practitioner contravened condition 7 of his registration by providing more than one dilute urine drug screening sample with a creatine level below 1.76 mmol/L in contravention of the Medical Council’s Drug Screening Policy and Participant Procedure: drug screening on the following dates:

a. 9 February 2024 returning a Urine Creatine of 1.2 mmol/L;

b. 12 February 2024 returning a Urine Creatine of 1.6 mmol/L;

c. 21 February 2024 returning a Urine Creatine of 1.3 mmol/L;

d. 13 March 2024 returning a Urine Creatine of 1.6 mmol/L;

e. 8 April 2024 returning a Urine Creatine of 1.7 mmol/L;

f. 10 April 2024 returning a Urine Creatine of 1.6 mmol/L;

g. 12 August 2024 returning a Urine Creatine of 1.3 mmol/L;

h. 28 August 2024 returning a Urine Creatine of 1.6 mmol/L;

i. 30 August 2024 returning a Urine Creatine of 1.7 mmol/L.”

140. The respondent admits particulars one, two and three of Complaint Three and admits particular 5 as a matter of fact, but not that this constitutes an automatic breach of his conditions. The respondent does not admit particular 4.

Particulars one and two of Complaint three

141. At the relevant time, conditions 1 and 6(d) on the respondent’s registration provided as follows (original emphasis):

“1 Not to treat or prescribe to themselves or immediate family members.

a) Within seven days of 24 November 2023 to provide the Medical Council of NSW with the full name and date of birth of the following people:

Current partner

Family members (mother, father, siblings, children, any other close relatives)

b) In the event of a medical emergency the practitioner may provide treatment to the above. A medical emergency is an event where it is not possible or reasonable to have a patient with a serious or life-threatening condition seen by another practitioner or transferred to the nearest hospital.

I. The practitioner must notify the Council in writing within 48 hours of the event occurring and provide the following information and any other information as required by the Council:

Full name and date of both of the patient

The practitioner’s relationship to the patient

The nature of the condition requiring treatment

The name and contact details of the medical practitioner who is responsible for the patient’s ongoing follow up and care

…

6 Not to self-administer any:

…

d. agents commonly used to manage sleep disorders such as promethazine, benzodiazepines and doxylamine

Unless such medications are prescribed by their treating practitioner and taken, as directed by their treating practitioner.”

142. On 31 October 2023, prior to the second s 150 hearing and prior to the imposition of the above conditions, the respondent’s urine test detected promethazine. Promethazine is an antihistamine with a sedating effect.

143. On 24 November 2023, after the second section 150 hearing, the Council imposed the conditions. On 1 December 2023, the respondent’s urine test detected promethazine. On 18 December 2023, the respondent, via his legal representatives, sent a letter to the Monitoring Program Officer (the Officer), responding to matters raised by that officer on 13 December 2023. The letter stated that: he had last consumed promethazine on 23 November 2023, before the conditions commenced; that since that date, the respondent had not self-administered promethazine; and that he is “fully committed to ensuring his strict compliance with his conditions”.

144. The respondent’s purported breaches of conditions 1 and 6(d) are as follows:

145. On 17 January 2024, the practitioner self-prescribed promethazine. The applicant submits that this constitutes a contravention of conditions 1 and 6(d) of the practitioner’s registration. The relevant circumstances are that he had an allergic reaction at night, at which time he self-administered promethazine. The following morning, his treating GP advised him that “the use of this antihistamine in the circumstances was clinically indicated and appropriate for his symptoms” However, the s 150C delegates, in the reasons for decision for the s 150 decision, were concerned that the practitioner had chosen to treat himself with promethazine at night, and noted that there are several anti-histamine preparations that may have had an equally beneficial effect without the sedating effect of promethazine.

146. On 21 February 2024, the respondent returned a hair sample drug screening test showing the detection of small to moderate amounts of promethazine. The applicant submits that this amounts to a contravention of condition 6(d) of the respondent’s registration. The respondent admits this, as part of his admission of particular two of Complaint Three.

147. On 17 May 2024, the practitioner provided a hair sample (for the approximate period from late January 2024), which detected promethazine. The practitioner does not contend that this hair sample is inaccurate.

148. We are satisfied that the practitioner indeed treated himself with promethazine, in breach of conditions 1 and 6(d). There is no dispute that promethazine is an agent commonly used to manage sleep disorders, which was prohibited by condition 6(d); even though it has other uses, such as for allergic reactions.

149. Particulars one and two of Complaint Three are made out.

Particular three of Complaint Three

147. Condition 6(b), as the relevant time provided as follows:

“6 Not to self-administer any:

…

b. narcotic derivative, non-prescription compound analgesic, or cold medication

…

Unless such medications are prescribed by their treating practitioner and taken, as directed by their treating practitioner.”

148. Dextromethorphan is contained in cold and flu medication.

149. The applicant submits that on 12 June 2024 and 14 June 2024, the respondent contravened condition 6(b) of his registration by returning a urine sample drug screening test showing the detection of dextromethorphan. The respondent admits this, as part of his admission of particular three of Complaint Three.

150. On 1 July 2024, the respondent through his legal representatives sent a letter to the Officer, wherein he states that he had self-administered non-prescription cold medication containing dextromethorphan.

151. We are satisfied that this was a breach of the conditions.

152. Particular three of Complaint Three is made out.

Particular four of Complaint Three

153. Condition 6(a) at the relevant time provided as follows:

6 Not to self-administer any:

a. prescribed restricted substance (Schedule 4 Appendix D drug) as defined in the Poisons and Therapeutic Goods Regulation 2008 (NSW) or drug of addiction (Schedule 8 drug) as defined the Poisons and Therapeutic Goods Act 1966 (NSW);

…

Unless such medications are prescribed by their treating practitioner and taken, as directed by their treating practitioner.”

154. The applicant submits that the practitioner contravened condition 6(a), a contention to which the respondent does not admit.

155. The applicant submits the practitioner contravened condition 6(a) as follows:

“on or about 23 August 2024, the practitioner contravened condition 6(a) of his registration in circumstances where he returned a hair sample drug screening test showing the detection of Tramadol and he had not been prescribed Tramadol by his treating practitioner and had not been directed to take Tramadol by his treating practitioner.”

156. The applicant tendered a pathology report of a hair sample collected from the practitioner on 23 August 2024. The pathology report states that “[a] small amount of tramadol was detected, however its metabolite N-desmethyltramadol was not detected”. The report also states the following:

“Assuming an average rate of hair growth of 10mm per month, and approximately three weeks for hair to grow from the base of the hair follicle to a sufficient length above the skin to be reliably collected, the time period ‘covered’ by this hair test extends back to approximately early May of 2024.

Because substances may be incorporated into existing hair through sweat or other secretions, the time period may extend up to and including the date of sample collection.”

157. The practitioner accepts he had not been prescribed tramadol. Accordingly, had it been in his system, it would indicate a breach of the condition 6a; because it would have indicated he had taken it without being prescribed it.

158. The practitioner denies having consumed tramadol prior to the hair drug screening, and submits that this test result “represents a contaminant”. The practitioner submits that this contention is supported on three bases:

159. Professor Demirkol’s opinion that the “hair result is likely due to environmental contamination”. Professor Demirkol in a letter to the Officer on 22 September 2024, which included information about Professor Demirkol’s interview with the practitioner on 20 September 2024, stated that “the HDS [Hair Drug Screening] dated 23 August 2024 detected very small quantities of tramadol with no metabolites…suggesting that the hair test result is likely due to environmental contamination.”

160. The pathologist’s statement in the pathology report for the hair sample, outlined above, which stated that “[a] small amount of tramadol was detected, however its metabolite N-desmethyltramadol was not detected.”

161. That “[a]ll contemporaneous thrice-weekly UDS samples during the May-August 2024 period were negative for tramadol or its metabolites”, and “[g]iven tramadol’s detection window of approximately 2-4 days in urine, and the thrice-weekly testing regime, it is submitted that it is not possible that the Respondent could have ingested tramadol without it appearing in at least one UDS sample.”

162. The practitioner also submits that “the Council itself took no further action on this result. The letter from the Medical Director dated 19 December 2024 resolved the matter with written advice only”.

163. The applicant submits that the practitioner told Professor Demirkol in the interview of 20 September 2024 that the practitioner “has no explanation” for the positive result of tramadol. Nevertheless, Professor Demirkol in a report on 2 November 2025, states the practitioner had “not used alcohol or any non-prescribed substances during the past 12 months” and whilst we note this covers a slightly later period, it is nonetheless relevant.

164. Had the practitioner indeed taken tramadol, this would have constituted a breach of his conditions of registration. However, we are satisfied that the test dated as being collected 23 August 2024 contained an environmental contaminant, and does not indicate the practitioner’s use of tramadol.

165. Particular four of Complaint Three is not made out.

Particular five of Complaint Three

163. Condition 7, relevantly provided as follows:

“7 To comply with the Medical Council of NSW Drug screening policy (as varied from time to time) and attend for:

a) Urine drug screening (UDS) 3 times a week, and

b) Quarterly hair drug screening.”

164. The applicant submits that the practitioner contravened condition 7 of his registration by providing more than one dilute urine drug screening sample as indicated by a creatinine level below 1.76 mmol/L in contravention of the Council’s policy entitled “Drug Screening Policy”, and a document “endorsed” by the Council entitled “Participant Procedure: drug screening”. The respondent admits this particular as a fact, but not that it is an automatic breach.

165. On 27 November 2023, the Council informed the practitioner about his responsibility to comply with the conditions, and provided the Drug Screening Policy and Participant Procedure. The Participant Procedure stated “[d]o not drink too much water before you attend for urine drug screening, as this can dilute your sample and cause an unsatisfactory result”, explained that a dilute urine sample has a creatinine level below 1.76 mmol/L, and explained that more than one dilute urine sample is unsatisfactory. On 1 December 2023, the practitioner commenced thrice weekly urine drug screenings. From 9 February 2024 to 30 August 2024, the practitioner provided nine dilute urine test results. These dates are as follows:

166. 9 February 2024, returning a Urine Creatinine of 1.2 mmol/L.

167. 12 February 2024, returning a Urine Creatinine of 1.6 mmol/L.

168. 21 February 2024, returning a Urine Creatinine of 1.3 mmol/L.

169. 13 March 2024, returning a Urine Creatinine of 1.6 mmol/L.

170. 8 April 2024, returning a Urine Creatinine of 1.7 mmol/L.

171. 10 April 2024, returning a Urine Creatinine of 1.6 mmol/L.

172. 12 August 2024, returning a Urine Creatinine of 1.3 mmol/L.

173. 28 August 2024, returning a Urine Creatinine of 1.6 mmol/L.

174. 30 August 2024, returning a Urine Creatinine of 1.7 mmol/L.

175. The test results as particularised by the applicant are consistent with the documentary evidence before the Tribunal. The practitioner has also admitted this particular.

176. We pause to note that breach of the condition concerning dilute urine samples is not tantamount to a conclusion that the practitioner was, contrary to conditions, taking proscribed medications. The consensus of the practitioner’s treating psychiatrist, Dr Liang, and Professor Demirkol is that the practitioner has been drug and alcohol free since at least mid-2024. We note as follows: Professor Demirkol, in examination in chief, answered to the effect that he can confidently say the practitioner has been free from “z” drugs since early 2024, and in cross-examination, that the practitioner has been abstinent from alcohol since early March 2024; Dr Liang, in a report dated 26 October 2025, states that there has been “no evidence suggesting relapse in alcohol and illicit substance use” since July 2024.

177. The results indicate that the practitioner indeed returned dilute urine samples contrary to condition 7. Dilute urine samples are problematic, as a dilute sample, as explained by the pathology reports of the dilute urine samples, may “dilute out any drug metabolites to concentrations below detection limits”.

178. The practitioner has proffered several reasons why the samples were dilute and maintains it was not a deliberate attempt to thwart the urine tests. The following explanations were proffered to the Council through the practitioner’s legal representatives, and supported by evidence given to the Tribunal by the practitioner:

179. For the urine drug screenings of 9, 12 and 21 February 2024, that the practitioner was drinking large amounts of water to ensure he could undertake the tests, and to alleviate his dry mouth. He was drinking approximately one litre of water prior to the tests “to ensure that he did not experience any difficulties in passing sufficient urine at the time of providing the UDS, and also to manage his symptoms of dry mouth, which were a side effect associated with his prescribed medications of nortriptyline and Seroquel”. The practitioner stated that, “to the best of his recollection”, dipstick tests were administered by the approved collector, which confirmed the suitability of the samples for testing. The practitioner stated that he is in the habit of consuming more liquid in order to manage the dry mouth symptom. The practitioner submitted that these three tests were prior to the notification by the Council on 22 February 2024 that the tests of 9 and 12 February 2024 were dilute. The practitioner stated that upon receipt of the notification by the Council, he reduced his liquid intake to 500mls on the advice of the staff at his collection centre. The practitioner stated that he is currently weaning off nortriptyline to vortioxetine, which he anticipates will result in a reduction of his dry mouth symptoms.

180. For the urine drug screening of 13 March 2024, that the practitioner could not explain with “any certainty” the basis for the dilute test result. The practitioner, in a letter dated 2 April 2024 to the Council, stated that he had only consumed 500mls of liquid prior to the test, and that the practitioner continued to be in the process of weaning off nortriptyline to vortioxetine, which he was hopeful would reduce his liquid consumption due to his dry mouth symptoms. The practitioner noted that since his reduction in liquid intake from one litre to 500mls, he has on two occasions been unable to provide a urine drug screening due to insufficient bladder volume and has been required to return to the collection centre for a further attempt after consuming an additional volume of liquid. The practitioner stated that dipstick tests were administered by the approved collector, which confirmed the suitability of the samples for testing. The practitioner stated that he had discussed the possible causes with his GP, Dr Kim, who was of the view that the practitioner’s current medications, in particular Ritalin LA and nortriptyline could possibly be causing the practitioner’s dilute samples. The practitioner stated that he has sought Dr Liang’s opinion on the matter.

181. For the urine drug screenings of 8 and 10 April 2024, that the practitioner could not explain with “any certainty” the basis for the dilute test result. The practitioner stated, in a letter to the Council dated 29 April 2024, that he had reduced his liquid intake to 300mls, and had completed the process of weaning off nortriptyline to vortioxetine, which has resulted in a “moderate reduction” in his dry mouth symptoms. The practitioner stated that dipstick tests were administered by the approved collector, who confirmed the suitability of the samples for testing. The practitioner stated that Dr Kim suggested he reduce his liquid intake to 1.5 litres after 3pm the day before testing and discuss the matter with Dr Liang. The practitioner has attempted to seek Dr Liang’s advice, however has not yet “had the opportunity to discuss [the] same with Dr Liang”.

182. For the urine drug screening of 12 August 2024, that the practitioner could not explain with “any certainty” the basis for the dilute test result. The practitioner stated, in a letter to the Council on 29 August 2024, that his “usual routine on testing dates has been to void his bladder immediately after waking, between 7:00am and 8:00am, and then not to consume any food or drink until after attending his nominated collection centre…at approximately 10:00am and providing a urine sample”. The practitioner noted he employed this “usual routine” between April 2024 and August 2024, in which time he has no other dilute samples. As concerns the urine drug screening of 12 August 2024, the practitioner contends that he had to undertake the collection at a different facility and different time to usual, which led to issues during the collection process, including, at the advice of the collector, intake of 300mls of water one hour prior to the collection. The practitioner again stated that the dipstick test administered by the collector confirmed the suitability of the samples for testing. Upon receipt of the notification from the Council of the dilute sample, the practitioner consulted his GP, Dr Kim, who recommended that the practitioner undergo a series of blood tests and kidney and prostate ultrasounds to investigate any underlying issues which may be contributing to the dilute samples. In this same letter, the practitioner pre-emptively communicated to the Council that the circumstances surrounding the urine drug screening of 16 August 2024 were similar to those of 12 August 2024. The urine drug screening of 16 August 2024 did not result in a dilute sample.

183. For the urine drug screenings of 28 and 30 August 2024, that the practitioner could not explain with “any certainty” the basis for the dilute test result. In a letter to the Council on 25 September 2024, the practitioner states that he complied with his usual routine on both days, and that the dipstick tests were administered by the approved collector, which confirmed the suitability of the samples for testing. The practitioner underwent the tests recommended by Dr Kim. The practitioner attached a letter from Dr Kim, in which Dr Kim states as follows:

“I write to you today as Sunny Sammy’s regular general practitioner. We’ve discussed his dilute urine sample results and done some investigations including renal U/S and bloods to attempt to understand why this has been occurring. There was a discussion with regards to this being perhaps a side effect of his Ritalin – although diuresis is not listed as a side effect on the CMI.”

170. From the above, it is apparent that the practitioner sought assistance from his GP to explain why his urine might be dilute, even after he had restricted his water intake. Dr Kim performed some tests, including “renal U/S and bloods”, apparently at some point in time between 28 August 2024 and 25 September 2024. Ultimately, no medical reason could be found, however Dr Kim noted that the dilute sample may be a side effect of the practitioner’s Ritalin use, although no such side effect is listed on the “CMI”. During his oral evidence and cross-examination, Dr Liang stated that both Ritalin and nortriptyline can induce dry mouth, and that it is a common side effect of these medications. This may cause excessive water intake to reduce the symptom. As is apparent from Dr Kim’s letters, Dr Kim was also of the view that dry mouth could be a side effect of the respondent’s Ritalin, although Dr Kim accepted in cross-examination that he was unable to identify in the respondent any underlying conditions or medications which cause dilute urine.

171. We accept that the first six samples were dilute because the practitioner was unaware of how much water he could or should drink without detrimentally affecting the integrity of the urine samples, notwithstanding the policy and procedure received by the practitioner. He was drinking too much to ensure he had a sufficient quantity of urine in order to comply with the test, and also due to the side effect of his medications. He progressively reduced his fluid intake in the mornings and, since approximately 10 April 2024, he takes no fluid before the test. We accept his evidence on this.

172. Furthermore, the pattern of systematically reducing fluid intake in the mornings, and that he reached out to his GP for testing in order to find a medical explanation, is consistent with his evidence that the explanation for the dilute samples is innocent: that he was not trying to sabotage the tests. It is consistent with the theories of his treating practitioners, who gave evidence. It is also consistent with the overall opinion of his treating practitioners and the applicant’s expert, that the practitioner has abstained from the proscribed medications for a prolonged period, with Dr Liang stating this abstinence as being since July 2024.

173. This, however, does not explain why, on three occasions (12, 28 and 30 August 2024), the practitioner nonetheless returned dilute samples. Nevertheless, we accept that the reason for this was not a deliberate attempt on the part of the practitioner to disrupt the tests. We are satisfied that, at that time, the practitioner was abstaining from the prescribed substances, and that, as such, there would have been no reason to try to thwart the tests.

174. We are therefore satisfied that particular five of Complaint Three is made out, even though we are not satisfied it was deliberate.

Unsatisfactory professional conduct as a result of Complaint Three

175. Complaint Three alleges the practitioner has contravened conditions of his registration and is therefore guilty of unsatisfactory conduct.

176. The applicant submits that a relevant principle is as follows: “it is well established that conditions must be ‘scrupulously observed’ and it is ‘essential’ to the smooth operation of the system of regulation and discipline that practitioners comply with conditions placed on their registration”. Authority for this proposition is said to arise from Re Dr Than Le [2001] NSWMT, 20 September 2001 at [95], followed in many subsequent cases including: H**ealth C**are C**omplaints C**ommission v Dr Saeid Saedlounia [2013] NSWMT 13 at [48]; H**ealth C**are C**omplaints C**ommission v Karalasingham [2019] NSWCATOD 23 at [31]; H**ealth C**are C**omplaints C**ommission v Reid [2018] NSWCATOD 162 at [132]-[133]; Prakesh v H**ealth C**are C**omplaints C**ommission [2006] NSWCA 153 at [74]; H**ealth C**are C**omplaints C**ommission v Mikhail [2021] NSWCATOD 103 at [36].

177. The practitioner does not, in his submissions, contend that the conduct should not amount to unsatisfactory professional conduct.

178. We are satisfied that the conditions of the practitioner’s registration have been breached as alleged. In accordance with s 139B(1)(c), this constitutes unsatisfactory professional conduct.

Complaint Four

179. Complaint Four alleges the practitioner has:

“i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration, and/or

ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner’s registration.”

180. The particulars of Complaint One, Two and Three are repeated and relied on individually, and in combination, for Complaint Four.

181. The practitioner, in his written submissions, contended that a finding of professional misconduct should not be made “because the conduct does not, and could not, justify suspension nor cancellation of his registration”. However, by a further supplementary statement, filed one day prior to the hearing, the practitioner “admits” to Complaint Four. This change of position was confirmed during the hearing. The Tribunal treats the admission as not contesting Complaint Four, because the Tribunal must still itself be independently satisfied, to the requisite civil standard. As mentioned above, a finding of professional misconduct is a mixed question of fact and law.

182. At this stage of our decision, we are concerning ourselves only with whether, objectively, the instances of unsatisfactory professional conduct are sufficiently serious to justify suspension or cancellation of the practitioner’s registration. If so, the conduct amounts to professional misconduct. We are not, here, deciding whether to suspend or cancel his registration.

183. We turn now to the instances of unsatisfactory professional conduct.

184. The first concerns the self-prescribing identified in Complaint One, particular one. Seen on its own, we are not satisfied it would justify suspension or cancellation. Whilst there was a breach of the code of conduct, and there was more than one instance, the conduct was relatively confined.

185. With respect to Complaint One, particular two, there were a multitude of instances of unsatisfactory professional conduct. Viewed together, they are sufficiently serious to warrant suspension or cancellation of the practitioner’s registration. The conduct continued for a substantial period of time, and vast numbers of medications were involved. The deliberately false prescribing of medications by a medical practitioner is a very serious matter. It is a grave departure from the professional standards that might be expected of a practitioner of his standing. It breached the trust of pharmacists and the public. It harmed the patients in whose names the medications had been dispensed, as there is no dispute that each patient’s medical history will now contain false information. It may have affected their ability to obtain similar medication at the time, and it may be relevant to their medical treatment in the future. The parties were not able to satisfy the Tribunal that the records of those patients could, even with admissions from the practitioner, be rectified. Particularly since there are so many instances of the conduct, it cannot be said that the conduct was inadvertent or trivial.

186. Whilst we are not here concerned with the subjective seriousness of the conduct, we pause to note that the conduct was wrong, and known by the practitioner to be wrong. He has not tried to justify the departures by reason of his impairment, which we discuss below, but he does proffer that circumstance by way of some explanation. Nevertheless, the seriousness of the conduct cannot be discounted, even assuming his subjective circumstances are not irrelevant to this aspect of our consideration.

187. The conduct the subject of Complaint One, particular two, amounts to professional misconduct.

188. The conduct the subject of Complaint Two is also, plainly, serious. However, the question is whether it is serious enough to warrant suspension or cancellation. In Health Care Complaints Commission v CGI [2024] NSWCATOD 125*,* the Tribunal found that the nurse’s conduct of providing false information to her employer on two occasions and to s 150 delegates in order to hide her personal relationship with a patient was sufficient, on its own, to justify cancellation of registration. It was there said at [85]:

“When considered in the aggregate, each complaint amounts to conduct of a sufficiently serious nature to justify cancellation of GGI’s registration (pursuant to National Law, s 139E(b)). Consequently, we find that GGI is guilty of professional misconduct. Even if we considered the conduct in relation to Patient A on its own, we would find this sufficiently serious to warrant cancellation of GGI’s registration. Complaint 3 is established.”

189. Equally, in other cases, such as Health Care Complaints Commission v Murtagh [2024] NSWCATOD 127, such conduct was held not to be sufficiently serious to justify cancellation of registration.

190. Each matter turns on its own facts.

191. Here, the practitioner was not honest on the assessment, which, given the circumstances, is a very serious matter. Particularly once the Council had indicated its concern, it was incumbent on the practitioner to cooperate fully. Instead, the practitioner deliberately told falsehoods to protect himself.

192. We are satisfied that, in the circumstances of this case, this is sufficiently serious to justify suspension or cancellation.

193. The conduct the subject of Complaint Two amounts to professional misconduct.

194. We do not consider that the conduct the subject of Complaint Three is sufficiently serious, construed objectively, to warrant cancellation or suspension. We accept that the breaches were not deliberate, and that at the relevant time the practitioner was actively taking steps to ensure the breaches were not repeated.

195. We also do not consider that, seen together, particular one of Complaint One and Complaint Three amount to professional misconduct. Further, we do not consider it adds to the analysis to consider these aspects of the Complaint with the aspects for which we are already satisfied that there is professional misconduct.

196. For an abundance of clarity, we are satisfied, as detailed above, that the respondent is guilty of professional misconduct in relation to the conduct the subject of Complaint One, particular two and Complaint Two.

Complaint Five

197. Complaint Five is made pursuant to s 144(d), and alleges the practitioner has an impairment within the meaning of s 5 of the National Law; that is, a “physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect” the practitioner’s “capacity to practise the profession of medicine”.

198. It is necessary to consider whether the respondent is currently impaired: Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362 at [11] (Beazley JA, Giles JA agreeing at [81], Hislop J agreeing at [84]). The question for the Tribunal is whether the physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) is of a “sufficient nature and degree to impair” a practitioner’s “mental capacity to practise” (Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [43] (Brereton JA, Bell P agreeing at [1], Emmett AJA agreeing at [78])).

199. The particulars of Complaint Five are as follows:

“1. The practitioner suffers from the following conditions or disorders;

a. Hypnotic use disorder (severe);

b. Alcohol use disorder (moderate);

c. ADHD;

d. Generalised anxiety;

e. Major depression.”

200. The practitioner admits Complaint Five in respect of his suffering an impairment, but leaves his diagnoses to his treating practitioners.

201. The applicant submits that a relevant principle is that there “is no requirement to make findings as to a particular diagnosis - the question is whether the evidence demonstrates that a practitioner is afflicted by a condition that is detrimental or prejudicial to the orderly conduct of his or her mental or physical duties as a health practitioner”, citing Grant v HCCC [2003] NSWCA 73 at [12] for this proposition (Meagher JA, Beazley JA agreeing at [20], Santow JA agreeing at [21]).

202. The hearing focussed on three aspects of the practitioner’s health: Hypnotic use disorder; Alcohol use disorder; and ADHD. Whilst there was evidence about generalised anxiety and depression, as mentioned above, the focus was on the former three conditions. In particular, the former two were implicated in the unsatisfactory professional conduct and professional misconduct.

Hypnotic and alcohol use disorders

203. The practitioner has a long-standing history of abuse of hypnotic medications:

204. Around 2010 or 2011, the practitioner’s GP prescribed the practitioner zolpidem and temazepam for insomnia during his studies.

205. Around 2012, 2013, or 2014, the practitioner started self-prescribing zolpidem. The practitioner in cross-examination accepted that, although in his statement to the Tribunal he said he started self-prescribing in 2014, it is possible that his self-treating with zolpidem began two years before that.

206. On 8 April 2016, during the Council counselling interview, the practitioner stated a drug and alcohol counsellor at the Drug and Alcohol Clinic at Nepean Hospital, whom he had consulted with for treatment, had told him that he was “teetering” on addiction, as a consequence of which he ceased zolpidem use in February 2015.

207. In March 2022, the practitioner’s then psychologist noted that the practitioner had indicated “a past problem with abuse of pain medications.”

208. In 2022, he disclosed to Dr Kim that he had been taking tramadol regularly for the past 5 years and struggled with withdrawal symptoms.

209. The practitioner has been under the regular care of Dr Liang since his initial assessment on 27 February 2024. Dr Liang stated in a letter dated 26 October 2025 that the practitioner’s “mental state remains stable”, and “[h]is mood is stable and euthymic, and his anxiety is under control. He does not have any psychiatric symptoms suggesting the diagnosis of psychosis, mania or hypomania”.

Alcohol use disorder

204. The practitioner has a long history of abuse of alcohol:

205. Around late 2022, the respondent’s alcohol consumption became more regular binges, 5-10 standard drinks. This is apparent from the respondent’s answers in the second s 150 hearing.

206. By January 2023, his “drinking became more frequent, escalating to a two-week stretch where he consumed half a bottle of wine daily”, as is reflected in Professor Demirkol’s report of 4 November 2023.

207. The respondent attended Odyssey House with concerns about alcohol abuse, in either 2022 or 2023.

208. In either January or February 2023, the respondent presented to emergency at Blacktown Hospital after ingesting alcohol, though the source is a matter of dispute.

209. In April 2023, the respondent reported that he was drinking 8-10 standard drinks of spirit over Friday/Saturday, as captured in Dr Liang’s report of 20 June 2024.

210. From mid-2023, the respondent “started binge drinking to cope with” his “Stilnox withdrawal”, as stated in the respondent’s statement to the Tribunal of 16 December 2025.

211. During the second s 150 hearing on 10 November 2023, the respondent denied being dependent on alcohol, stating “not quite but it’s getting close”. The s 150 delegates were “of the view” that the respondent had “not been entirely forthcoming” in relation to his alcohol use, and imposed conditions on his registration, which included alcohol screening.

212. The respondent had several binge drinking episodes over November 2023 to mid-January 2024. In addition to the respondent’s own admissions across various documents, in this regard, two pathology reports during this time indicate “probable recent or ongoing excessive alcohol usage”.

213. On 27 February 2024, Dr Liang diagnosed the respondent with alcohol use disorder.

214. In written reasons for decision of 23 April 2024, the s 150 delegates were concerned that the respondent was “trying to minimise” his alcohol usage and imposed an addition condition that he remain abstinent from alcohol usage.

215. On 21 June 2024, Professor Demirkol concluded that the respondent was in the early stages of his recovery from alcohol use disorder (moderate), continues to be impaired as defined by the National Law and the conditions imposed on his registration are appropriate.

216. Dr Liang stated in a report of 26 October 2025 that since July 2024, “there has been no evidence suggesting relapse in alcohol drinking and illicit substance use. He still maintains good motivation to continue his abstinence.”

217. On 20 September 2024, Professor Demirkol concluded that the respondent is still in the early stages of his recovery.

218. On 27 December 2024, Professor Demirkol concluded that he is in the early stages of his recovery and his conditions remain appropriate.

219. On 2 November 2025, Professor Demirkol stated that the respondent “has not used alcohol…during the past 12 months”, and described the respondent’s alcohol use disorder as being in remission.

ADHD

205. In 2021, his then psychologist, Ms McCarthy, noted that in recent months the respondent had been experiencing symptoms suggestive of “adult onset ADHD” and that the Ritalin was easing those symptoms. In a letter in 2022, Ms McCarthy noted that the respondent had been diagnosed in 2021 with Attention Deficit Disorder (ADD) by his then psychiatrist, Dr Ahmed. This diagnosis timeline is consistent with Dr Kim’s report of 12 October 2025.

206. On 27 February 2024, Dr Liang consulted the respondent and diagnosed ADHD.

207. According to Dr Liang in a report of 26 October 2025, the respondent’s ADHD symptoms are “well managed”.

Anxiety and Depression

208. In July 2021, Dr Ahmed considered whether the respondent suffered from ADHD but expressed some scepticism because it was “almost always comorbid with an anxiety disorder problem, problems that he has always had” and that he had high academic achievements. Nevertheless, the psychiatrist was willing to trial stimulants given they can be a “useful adjunct treatment with mood-related disorders such as depressed mood.” We infer from this, that the psychiatrist also considered that the respondent suffered from a depressed mood and anxiety related problems.

209. In September 2021, Ms McCarthy noted that the respondent had been struggling with “anxiety and low mood for several years and noted that he was “diagnosed with GAD and major depression by his psychiatrist”.

210. The respondent was first treated for anxiety and depression in 2010 by his then treating GP, in the context of psychosocial stressors related to his studies and family.

211. Accordingly, there is evidence that the respondent suffers from anxiety and depression.

The applicant’s expert

212. Professor Demirkol, in a letter of 2 November 2025, says as follows:

“Dr Sammy has demonstrated noticeable improvement since late 2023, eventually maintaining abstinence from alcohol and sedative-hypnotic medications and engaging with treatment and monitoring.

…

Based on my assessments over the course of last two years, biological testing, and his own reporting, Dr Sammy has not used alcohol or any non-prescribed substances during the past 12 months.

…

Dr Sammy has a history of sedative-hypnotic use disorder and alcohol use disorder, both currently in remission. He also has a diagnosis of ADHD, which remains under treatment and may have historically contributed to difficulties with organisation, concentration, and adherence to external monitoring requirements.

While his progress to date is commendable, I remain of the view that he continues to have an impairment under the National Law. This conclusion is based on several factors:

His recovery has not yet been tested in a clinical environment where he might experience professional stress and would have access to controlled medications;

A prior pattern of non-compliance in the early phase of monitoring, likely influenced by a pre-contemplative stage of change and the effects of untreated ADHD; and

Ongoing psychosocial vulnerabilities, including occupational uncertainty and a new relationship following a divorce, which had been a significant precipitant of his earlier maladaptive coping and self-prescribing behaviour.”

213. Professor Demirkol, in a letter of 1 April 2026, continued to be of the view that the respondent suffers an impairment (original emphasis):

**“**3. Opinion

Dr Sammy continues to demonstrate noticeable improvement, engagement with treatment, and increasing insight into his condition and past behaviour There is evidence of strengthening protective factors, including structured supports, re-engagement with therapy and peer programs, and a planned return to supervised practice.

While there have been procedural compliance issues, these are consistent with previously identified organisational difficulties and do not, in my view, indicate substance use or deliberate non-compliance.

Importantly, the urine drug screen dated 27 January 2026 does not demonstrate opioid use, with available evidence indicating a false positive screening result, which is supported by a negative hair drug screen covering the relevant period.

However, his recovery has not yet been tested in a clinical environment where he would have access to prescribing privileges and controlled medications Ongoing vulnerabilities remain, particularly in relation to organisational capacity, compliance with monitoring requirements, and exposure to psychosocial stressors.

I therefore remain of the view that Dr Sammy continues to have an impairment within the meaning of the National Law. …”

Conclusion

214. We are satisfied that the respondent indeed suffers an impairment related to his alcohol and substance use disorders. Notwithstanding his long abstinence from proscribed substances and alcohol, his treating practitioners and Professor Demirkol, the applicant’s expert, each gave evidence that his conditions require ongoing support and that to return to safe practice he would require conditions on his registration.

215. As to his diagnosis of ADHD, the evidence suggests that, untreated, it may have contributed to his lack of “organisation, concentration, and adherence to external monitoring requirements” according to Professor Demirkol. Professor Demirkol was asked, in cross-examination, whether the respondent’s organisational skills arise as a result of his ADHD. Professor Demirkol answered to the effect that the respondent’s ADHD is to a degree contributing to the respondent’s organisational issues, but it is not the only reason, and that the respondent has to take responsibility. Professor Demirkol also answered that with the right ADHD medication the respondent seems to be doing better. However, we are not satisfied that the practitioner suffers an impairment related to ADHD. Further, there is insufficient indication that the respondent suffers an impairment related to anxiety or depression.

Protective Orders

The applicant’s submissions

216. The applicant submits that the Tribunal should find the subject matter of the application proved and exercise its disciplinary powers. The applicant submits: protection of public safety and health is of paramount consideration; the Tribunal must consider the preservation of public confidence in the standards of the profession; and protective orders must be made in order to deter others from engaging in similar conduct. To meet these principles, the applicant seeks the cancellation of the respondent’s registration and for the Tribunal to impose a 12-month non-review period.

217. The applicant submits that fixing a non-review period protects the health and safety of the public by:

218. ensuring that only those who are suitably trained and qualified to practise in a competent and ethical manner are registered,

219. sending a clear message of denouncement of the respondent’s conduct to other professionals,

220. attempting to predict the time in which a practitioner may reasonably take steps to rehabilitate,

221. indicating the minimum period within which the Tribunal considers the person should not be able to practise their profession,

222. sending a message to the respondent, the public and the profession about professional standards and the seriousness of the breach, and

223. holding open to the respondent the possibility of return to the profession at a later time.

The respondent’s submissions

218. The respondent submits cancellation is disproportionate and that there is no basis for a 12-month non-review period. Instead, the respondent proposes protective conditions (which are the respondent’s current conditions). These are set out below.

219. The respondent submits that the appropriate protective order is the imposition of conditions on registration, not cancellation, because s 3A(2)(c) of the National Law requires restrictions to be imposed only if necessary to ensure safe and quality services. Necessary is said to mean required to achieve the protected purpose, rather than desirable or preferable. The respondent submitted that the Tribunal ought to assess whether less serious orders outside what the applicant seeks can achieve the protective purpose, which may be the imposition of conditions.

220. The imposition of conditions, rather than cancellation, is said to be appropriate because the respondent’s conduct between November 2021 and August 2023 was “inextricably linked to the Respondent’s impairment…which is now in sustained remission”. The respondent also submits that the “unanimous opinion of all treating practitioners is that Dr Sammy is fit to practise under supervision”.

221. If the imposition of conditions alone is not accepted, a three-month suspension, caution or reprimand were suggested as alternatives to cancellation. The respondent submits that cancellation is disproportionate, and not necessary, as follows:

222. The delegates of the second s 150 hearing, held in November 2023, who had the benefit of hearing the respondent’s evidence at a time when his insight was at its lowest and his impairment was at its most active, declined to suspend the respondent’s registration, imposing conditions instead.

223. The respondent’s treating practitioners have stated he is fit to practise, with conditions.

224. Comprehensive monitoring data shows sustained abstinence on the part of the respondent.

225. Cancellation would remove a medical practitioner from the workforce of a rural area with acute medical need, noting that the respondent proposes to work in a rural area, and submits that there is a general practitioner at a rural practice who is willing to supervise him.

226. Cancellation would eliminate the structured monitoring framework that currently provides objective evidence of compliance.

227. As the risk can be managed by strict conditions, cancellation may be more restrictive than necessary to achieve the protective purpose.

228. The respondent submits that all of the conduct the subject of the application and particularised in the first four complaints, which he accepts was improper, occurred years ago. It was precipitated, in large part by the following:

229. Extreme psycho-social stressors.

230. Work pressures.

231. Undiagnosed or poorly managed mental health disorders.

232. Lack of adequate support or effective self-care.

233. He also maintains that many of the stressors in his life have resolved and to the extent that there are new or remaining stressors, he has shown over the last two years that he is well equipped to handle them without reverting to unethical or inappropriate conduct. This is a result of exercising self-care, and that he is actively working with treating practitioners with whom he now has an open relationship.

The applicant’s submissions in reply

224. The applicant maintains that the respondent should not be trusted to not relapse, for the following reasons:

225. Ongoing and new family stressors.

226. Stressors related to his ongoing training requirements.

227. New stressors if he goes back to practice with access to prescriptions.

228. He has had numerous opportunities to have his eyes opened and change his behaviours in the past, however on these occasions he did not learn his lesson. An example of this is the first s 150 hearing.

229. The respondent had supportive treating practitioners in the past, but he was not honest with them.

230. The applicant submits that it is critically important that, even if the Tribunal is satisfied he is fit to practise with supervision, that the conduct demonstrated such egregious departures from professional standards, that nothing short of cancelling his registration would be in line with the paramount consideration under the National law, or preserve the public’s safety in all its aspects.

Consideration

Current fitness to practise

226. It is not necessary to recount the psycho-social stressors and health issues which the respondent maintains led to his substance use disorders. We accept the evidence of the respondent as to his journey here. The real issue we must concern ourselves with is whether, in light of his substance use disorders, his past obfuscation to his treating practitioners and to the Council and his poor self-management, that we should nevertheless have confidence that he is currently fit to practise; albeit under supervision.

227. The applicant submits that we should treat the respondent’s submissions that his stress has largely resolved, and that he is now treated by supportive practitioners, with scepticism. This is for the reasons that life will continue to throw up stressors, and that this will particularly be the case in circumstances where he is seeking to go back into practice, whereupon he will be confronted with prescriptions, and both his progression through the medical training programme and his obtainment of desired roles is unclear. Furthermore, in the past he has had supportive practitioners, but was not honest with them about his substance abuse disorders and his self and false prescribing.

228. Whilst we do not accept what the respondent says without due regard to his history, we have had the opportunity to observe the respondent give evidence and be cross-examined, and we have had regard to the fact that he has now been effectively free from substance abuse for two years. During this period of sustained remission, he prepared for these proceedings, which may aptly be described as a stressor. Critically, the respondent has the confidence of his two treating practitioners, as well as the applicant’s expert. Due to the foregoing, we accept that he is fit to practise with supervision and under conditions.

Insight

229. The respondent admitted to particulars one and two of Complaint One, Complaint Two, particulars one, two and three of Complaint Three, and particular five of Complaint Three as a matter of fact. The respondent’s treating practitioners and the applicant’s expert were each of the opinion that the respondent has demonstrated insight into his conduct. Dr Kim relevantly stated, in a letter dated 12 October 2025 (original emphasis):

“3. Has Dr Sammy developed insight into his health issues?

Dr Sammy has demonstrated improved insight into his health issues, and reflected on his past often in our appointments. I do believe it is an ongoing process and that he still requires regular follow up and treatment, but I feel that he has been steadily improving with regards to his awareness of his health issues.”

230. Dr Liang, stated in a letter on 26 October 2025:

“3. Has Dr Sammy developed insight into his health issues?

Answer:

Yes. Dr Sammy has good insight into his previous substance use disorder and its impact on his mental health wellbeing and his work capacity. He remains good motivation to continue his abstinence from substance and there is no evidence of relapse so far since July 2024.”

231. Professor Demirkol, in a letter of 2 February 2026, says as follows (original emphasis):

“Mental State Examination

…He demonstrated insight into his circumstances and the implications of his health and professional situation.”

232. The respondent has given the following insight into his conduct in a statement filed 16 December 2025:

“In retrospect, I have had a number of health challenges and absolutely appreciate that I need to continue to work hard to maintain my mental health. I can now absolutely appreciate that it is very important that I actively engage with my treating practitioners and follow their advice. I also now appreciate that if I start to become unwell, I need to take steps as soon as possible to ensure I do not become too unwell.

…

My mental health has significantly improved, and I now have the knowledge, practices, support and structures in place to ensure that I wont make the same mistakes. I have spent time to reflect over the last year or so and I recognise the importance of self-care, work life balance, and boundaries that I did not have before.

Through this time in my life, as a patient myself who was struggling, I have been able to obtain a greater understanding and insight of mental health and substance dependency, which I am keen to apply in my medical practice.”

233. The respondent, in a statement filed 25 March 2026, reflected on the impact his conduct has had on Patients A, B and C:

“I recognise that the patients may be falsely accused of doctor shopping and using these drugs. In falsely prescribing under their names, the health records of these patients have included false information. …

My actions have made the medical records of these patients inaccurate. Furthermore, it has led to a loss of trust in the medical profession. It has the potential to cause these patients psychological stress. My conduct has undermined the integrity of the medical profession.”

234. In the same statement, the respondent also stated that he had made a “poor decision” in prescribing for people with whom he has a close personal relationship in 2014, noting that he placed them “at more risk by doing so”. The respondent states that he has informed himself on the relevant guidelines of the Council and the Good Medical Practice Code of Conduct.

235. The respondent expressed an apology for “not being completely forthcoming” with the regulators. The respondent noted:

“It is ultimately my responsibility to decline any pressures to uphold my responsibilities as a doctor to keep the public safe and free from risks which could come from inappropriate prescribing.”

236. We accept that the respondent has genuine understanding and remorse. We are satisfied that the respondent understands the gravity of his departures from professional standards and the harm he has caused to his former patients and to the health system more generally. Furthermore, we are satisfied that the respondent has demonstrated insight into his behaviour by his substantial factual admissions.

Risks to the respondent’s patients ameliorated with conditions

237. The respondent’s treating practitioners and the applicant’s expert are each of the opinion that the respondent is fit to practise, with conditions. Dr Kim relevantly stated, in a letter dated 12 October 2025 (original emphasis):

“Since then [February 2025] he has continued to check in with myself and Dr Liang as previously planned. Some of his psychosocial stressors have improved…and hence he has built up some more resilience. There have been instances where he has contacted me with regards to concerns re: dilute UDS samples and having been unable to provide adequate samples due to unrelated illnesses well. I do believe that his condition has improved over time and that he has a good established support network at this stage.

2. Is Dr Sammy actively engaging with your treatment?

Yes - he has been in regular contact with myself (roughly 1-2 appointments a month on average) and also continues to have follow up reviews with his psychiatrist.

…

4. Is Dr Sammy currently well enough to practice medicine?

I believe he is currently well enough to practice medicine - with appropriate supervision and ongoing regular follow up.”

238. Dr Liang, stated in a letter on 26 October 2025:

“2. Is Dr Sammy actively engaging with your treatment?

Answer:

Yes, Dr Sammy has been engaging with the treatment with me and attended his regular psychiatric review appointment. He has been compliant with his medications and interventions provided

…

4. Is Dr Sammy currently well enough to practice medicine?

Answer:

From a psychiatric perspective, Dr Sammy has gradually regained his mental capacity to practice medicine as a GP trainee. However, his practicing medication should be under close supervision, especially in the area involving prescribing S8 medications. He needs to continue current mandatory regular test for alcohol and illicit substance to monitor his alcohol drinking and substance use.”

239. Professor Demirkol in a letter of 1 April 2026, says as follows:

“I therefore remain of the view that Dr Sammy continues to have an impairment within the meaning of the National Law At present, this impairment does not adversely affect his capacity to practise, provided that appropriate conditions remain in place.

I recommend that his current health and practice conditions be maintained.

Having reviewed the additional material provided on 27 March 2026 and 1 April 2026, my expert opinion remains unchanged, and I do not consider that this information warrants any amendment to the opinions expressed in my report dated 2 November 2025.”

240. The respondent, in his statement of 16 December 2025, says he has processes in place to safeguard against future conduct, including by continuing to attend his GP fortnightly, continuing to attend Dr Liang every 6 months or more regularly, if needed, remaining in monthly contact with his previous AA sponsor, and noting that he has family and friends who have continued to support him.

241. The respondent, in his statement of 25 March 2026, note that his ADHD is managed now, and that he is “in a position to effectively attend to” his “own wellbeing”.

The public interest in his intention to practice in a rural area

242. The applicant’s present intention is to practise in a rural area of need. We have some evidence to infer that he may be able to obtain such a position in the event he is accepted into the requisite training program. The respondent has indicated that he is awaiting the outcome of these proceedings before finalising his application. In those circumstances, we can give very little weight to his expressed intention, as it may not be realised. Additionally, there was no express evidence that the location at which he had identified an intention to practise could aptly be described as an area of need.

243. The applicant submits that the respondent’s locating of a rural general practice is “commendable”, but “that does not reduce the need for appropriate protective orders”.

244. We see the respondent’s intention as tenuous, and we therefore do not give it weight.

The respondent’s impairment

245. The respondent, in his submissions, contends that his impugned conduct between November 2021 and August 2023 was “inextricably linked” to his impairment, which is now in “sustained remission”. However, the respondent goes so far as to submit that “[t]he conduct the subject of these proceedings was directly caused by his impairment, which was triggered by identifiable and significant personal stressors” (original emphasis).

246. The respondent, in his statement to the Tribunal of 16 December 2025, states:

“I do not say this to minimise my conduct at all. I have very serious health issues which will make me vulnerable to relapse for the rest of my life.”

247. The respondent, in written submissions, “accepts the seriousness of the conduct”, however submits that the “question for the Tribunal is not merely whether the conduct is serious, but the context in which it occurred, namely an impairment”, and characterises these proceedings as “primarily one of health and impairment”.

248. In respect of Complaint Two, the respondent submits that his dishonesty “was a manifestation of the impairment…and not evidence of a separate, cynical pattern of deception divorced from the health condition”. The respondent contends that, importantly, Professor Demirkol characterised the substance use as a “‘maladaptive coping mechanism’ - not as deliberate professional misconduct divorced from health issues” (original emphasis).

249. The applicant submits that the respondent’s impairment “does not reduce the seriousness of his self-prescribing, false prescribing and false information”. The applicant is strongly opposed to two propositions which “seem” to arise from the respondent’s submissions; namely that “conduct which results from an impairment cannot be professional misconduct” or the proposition that “it is unreasonable to treat conduct which is the result of an impairment as professional misconduct warranting cancellation”. The applicant submits that the Court of Appeal in Reimers v Health Care Complaints Commission [2012] NSWCA 317 at [12]-[14] (Basten JA, Campbell JA agreeing at [24], Hoeben JA agreeing at [28]) has rejected both propositions:

“12 …the first proposition is untenable. Gross, repeated, incompetent medical practice does not cease to be such because it is caused by an addiction to alcohol, heroin or other drugs. This was not a case where the practitioner was held to be unaware of his condition or its consequences. …The conclusion of the Tribunal that there was professional misconduct was, at least, unsurprising.

13 The second proposition is also untenable. There is no doubt that addiction is a condition which may, perhaps should, evoke sympathy. …the underlying purpose of a disciplinary order of deregistration is not primarily punitive, but protective. That is not to impose some artificial dichotomy of punitive and protective orders, contrary to Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129. Rather, it is to recognise the primary object of the Medical Practice Act which was ‘to protect the health and safety of the public by providing mechanisms designed to ensure that ... medical practitioners are fit to practise medicine’: s 2A(1). Misconduct which could be classified as professional misconduct may properly lead to deregistration.

14 In short, the applicant’s submission that impairment cannot be professional misconduct is true, but only in the sense that an impairment is not conduct. An impairment may manifest itself in conduct or, to reverse the relationship, an impairment may explain particular conduct in part or in whole. There is no substance in the complaint that the decisions of the Tribunal on the various complaints were manifestly unreasonable.”

250. The applicant notes that Reimers v H**ealth C**are C**omplaints C**ommission pre-dates the National Law, but remains relevant and is often cited by the Tribunal, including in Health Care Complaints Commission v Fisher [2016] NSWCATOD 62 at [73]; Health Care Complaints Commission v XC [2015] NSWCATOD 9 at [104].

251. The applicant maintains that cancellation is the appropriate order, but submits that the cancellation power arises due to the practitioner’s professional misconduct, not his impairment.

252. Whilst we accept that the respondent’s impairment is not an excuse for his conduct, it offers some explanation that allows us to conclude that the dishonesty and maladaptive conduct was at least to some extent related to his impairment. With his health conditions under control, as we accept from the practitioners who gave evidence about this (as set out above), there is cause for confidence that the misconduct will not be repeated.

253. In so saying, we do not diminish the gravity of the misconduct and accept that there were resources available to the respondent, earlier, to seek treatment; especially since he has long had supportive practitioners. Certainly, not everyone with a substance abuse disorder would turn to dishonesty.

Considerations relevant to the making of a protective order

The importance of denouncement and whether cancellation is necessary

254. The applicant maintained through the course of these proceedings that cancellation, with a non-review period of 12 months, is needed to protect the health and safety of the public by denouncing the respondent’s misconduct, maintaining professional standards and allowing the respondent further time to rehabilitate so that the Tribunal can be satisfied that he can be trusted to practise safely and ethically in future.

255. The respondent submits that the appropriate protective order is the imposition of conditions on registration, not cancellation. The existence of conditions, which are publicly available, combined with the Tribunal’s published findings, will provide a denouncement of the conduct in addition to having a deterrent effect on others in the profession. The respondent submits that if the Tribunal does not accept that the conditions alone sufficiently denounce the conduct or provide general deterrence, a three-month suspension, caution or reprimand are appropriate alternatives to cancellation.

256. The respondent submits that cancellation is disproportionate, and not necessary, and would be contrary to s 3A(2)(c) of the National Law.

257. The applicant submitted that s 3A(2)(c) should not undercut s 3B. It repays to be reminded of s 3B of the National Law, which relevantly provides:

3B Objective and guiding principle [NSW]

In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.

258. As discussed above, protecting the health and safety of the public has several facets. It includes, as least, the following:

259. Safety of the respondent’s patients.

260. Specific deterrence against the respondent resorting back to conduct amounting to unsatisfactory professional conduct or professional misconduct.

261. Upholding the trust allied professionals have in the system.

262. Upholding professional standards generally.

263. Upholding the trust that patients have in the integrity of the health system.

264. General deterrence against other practitioners who might otherwise be at risk of following the respondent’s path.

265. We do not suggest we have set out an exhaustive list.

266. What the foregoing reveals is that the paramount consideration requires us to consider a range of matters. Further, as the foregoing demonstrates, the purpose of denouncement is to serve the public safety consideration.

267. From Do*,* it is apparent that an important role of denouncement is general deterrence: at [35]. It also has a role to play in upholding professional standards, by clearly identifying what conduct is and is not within the bounds of reasonable expectations: Do at [35].

268. The applicant submits that unless the conduct is sufficiently denounced, we will not have paid due regard to the paramount consideration and in this case, unless the respondent’s registration is cancelled for a significant period, we will not have sufficiently denounced his conduct.

269. As noted, a significant area of contest between the parties is whether, due to the serious and extensive nature of the breaches of professional standards amounting to professional misconduct, even if the Tribunal is satisfied that it is not necessary to cancel the respondent’s registration to protect the health and safety of the practitioner’s patients, the Tribunal should nevertheless cancel his registration. As contended by the applicant, any scenario under which the respondent’s registration is not cancelled would not sufficiently denounce the respondent’s professional misconduct, which is what is required under the guiding principles of the National Law; and, in particular, the paramount consideration, which is the health and safety of the public, which extends beyond the protection of the respondent’s patients. It is contended that where, as here, there have been such serious departures from professional standards, which have extended for so long, the paramount consideration and guiding principles under the National Law cannot be upheld unless the respondent’s registration is cancelled.

270. To the contrary, the respondent contends that it is indeed in keeping with the paramount consideration and the guiding principles under the National Law to allow him to practise, albeit with conditions. He posits a return to general practice in a rural area under stringent conditions and, in the alternative, if appropriate, would accept a reprimand, or a suspension for a period. The respondent, whilst accepting that it is necessary to satisfy the paramount consideration, nonetheless, emphasises that one of the guiding principles under the National Law is that restrictions are to be imposed only if it is “necessary to ensure health services are provided safely and are of an appropriate quality” (National Law, s 3A(2)(c)). The respondent contends that cancellation is not necessary on the facts of this case.

Conclusion on cancellation

265. A clear basis to cancel a practitioner’s registration arises where the Tribunal forms the view that the practitioner is not currently fit to practise, whether that be as a result of lack of competence, health, insight into the past conduct or another reason.

266. The period of cancellation provides an opportunity for the practitioner to undergo further training, reflection, or obtain treatment. That basis is not here required, as we are satisfied, despite the applicant’s submissions to the contrary, that the practitioner has already gained the insight that might otherwise be anticipated to arise after a period of cancellation. Here, we are already satisfied that, with conditions, the respondent is fit to practise. Therefore, a significant reason to cancel his registration is not present.

267. In reaching this conclusion, the Tribunal was assisted by the respondent’s treating GP, Dr Kim, and his psychiatrist, Dr Liang, who specialises in substance abuse disorders. They each expressed confidence that, under strict conditions, the respondent could be expected to keep on the positive trajectory that he is now on, and that risks to the health and safety of his patients would be ameliorated. Additionally, the Tribunal had the benefit of persuasive evidence from the expert called by the applicant, Professor Demirkol who is a medical practitioner specialising in addiction medicine, who also expressed a positive opinion in relation to the respondent’s safe return to general practice, under conditions. Accordingly, we are satisfied that, with appropriate conditions, the respondent can return to practice in a manner that protects the health and safety of his patients.

268. Here, the applicant highlighted a risk that once back in the environment of a medical practice, the respondent’s judgment might again be compromised. However, we do not consider that a period of cancellation would ameliorate that risk, and in the circumstances of this case, we consider that risk is best addressed with stringent conditions.

269. We are also satisfied, having heard from the respondent and from the respondent’s treating practitioners and Professor Demirkol that the respondent has sufficient insight and an appreciation of the damage he caused to patients and more widely to the standing of the health profession due to the extent of his departure from professional standards, that it is not necessary, by way of specific deterrence, to cancel his registration. We consider that, with stringent conditions on his registration and therefore on how he practises medicine, the health and safety of the respondent’s patients will be protected; as will the relationship of trust between him and other health professionals (which includes medical practitioners, pharmacists and allied health providers).

270. For the abovementioned reasons, we do not consider that there is a need for specific deterrence or to allow further time for rehabilitation, to cancel the respondent’s registration.

271. We have, therefore, come to the view that the only reason to cancel the respondent’s registration is to denounce his conduct.

272. We paused long and reflected before deciding not to cancel the respondent’s registration. The reflection was necessary because we accept, as submitted by the applicant, that the concerns for public safety under subdivision 6 of Part 8 read with the objectives and guiding principles of the National Law, do not cease simply because we are satisfied that the safety of this respondent’s patients may be conserved with stringent conditions and that cancellation of registration is not necessary to deter the respondent from a return to the conduct that led him here.

273. We accept that the paramount consideration under the National Law extends to maintaining public confidence and the trust the public has in the integrity of the health system. It extends to upholding the professional standards of the medical profession, and it extends to deterring others from engaging in similar conduct. These are all factors that fall within the purview of protecting the public health and safety, that disciplinary proceedings, such as these, are concerned with.

274. We are, however, satisfied that, in this case, it is not necessary to cancel the respondent’s registration to preserve the public’s trust in the health system, to preserve professional standards or to deter other practitioners from similar conduct. This is the case because despite the significant and longstanding departures from professional standards, we find that the stringent conditions, which include health conditions that impose on the respondent’s personal life, and practice conditions that affect how, when and where he practises medicine, coupled to the reprimand (which we have decided to impose for the reasons set out below), when seen in the context of the personal journey already made by this practitioner, who now has the confidence of his treating practitioners and the applicant’s expert, that the result is, borrowing the words from Justice Meagher in Do at [43], that the orders “will make plain that conduct of the kind engaged in is unacceptable.”

275. The circumstances of this case warrant such a course because despite prolonged and serious departures from professional standards, including blatant dishonesty, the respondent has already achieved what could be expected of him, had his registration been cancelled for a prolonged period. The public will consider the orders in light of his conduct and personal journey since the conduct the subject of these proceedings. The public will consider not only the respondent’s misconduct but also his positive conduct, his prolonged period of abstinence, his demonstrated insight, and that his two treating practitioners and the applicant’s expert are each of the opinion that the respondent is fit to practise with conditions.

276. One final point we note, in passing, is that since Do, there has been a clarification to the legislation. Had we cancelled the respondent’s registration for a period and assuming he would seek to have his registration reinstated, as a person whose registration has been cancelled by the Tribunal, he would be considered a disqualified person: National Law, s 5. This is due to the recent amendment to s 5 by s 4(1)(a) of the Health Practitioner Regulation (Adoption of National Law) Regulation 2025*,* which commenced 10 April 2026. Even after the expiry of any non-review period of the order cancelling his registration, he would be required to apply to the Tribunal for a reinstatement order from the Tribunal in order to be eligible for registration: National Law, s 77A inserted by Health Practitioner Regulation (Adoption of National Law) Regulation 2025*,* Sch 1[2]. This would require a further hearing in the Tribunal: National Law, s 163. The primary focus of a hearing under s 163 is to determine, as at the time of the hearing, whether the respondent is fit to practise (Jan v Health Care Complaints Commission [2021] NSWSC 350 at [21]; Safi v Medical Council of New South Wales [2022] NSWCATOD 30 at [5]). The respondent would also be required to seek registration from the National Board, even after the Tribunal made a reinstatement order, which would independently decide his suitability to practise, which would include an assessment of his fitness and propriety to practise: Jan v Health Care Complaints Commission at [21]. Although a decision by the National Board is independent, it is foreseeable that the National Board may take into account the findings of the Tribunal on this matter: Jan v Health Care Complaints Commission at [21].

277. Prior to the recent insertion of s 77A and a definition of “disqualified person” to s 5, the Court of Appeal, in Do*,* found that there was no need for a person, after the expiry of the period of disqualification, to seek a reinstatement order: at [45]-[48]. However, in Jan v Health Care Complaints Commission, which concerned an appeal from a decision of the Tribunal dismissing the appellant’s application for reinstatement, Leeming JA proceeded on the basis that the appellant was required to seek a reinstatement order from the Tribunal, allowing the appeal and remitting the matter to the Tribunal.

278. Since the recent amendments, there is no doubt that a practitioner whose registration has been cancelled is required to apply to the Tribunal for a reinstatement order.

279. Ultimately, we have decided that it is appropriate, having regard to the paramount consideration under the National Law and the guiding principles under the National Law, to reprimand the respondent (discussed further below) and to place stringent conditions on his registration, but not to cancel his registration. The orders we make will conserve the health and safety of the respondent’s patients and his relationship with others in the health profession. They will also act as specific deterrence for the respondent, himself, against the potential to return to the conduct which led him here.

280. The orders we make will serve to denounce the respondent’s conduct.

Suspension

281. We have turned our mind to the possibility of a suspension. A suspension would denounce the respondent’s conduct and not require an additional hearing in the Tribunal for reinstatement. However, as submitted at the hearing, the respondent would not, during the period of suspension, be subject to the conditions currently in place on his registration, as the conditions would not apply throughout the suspension period. Whilst conditions on release of the suspension might foreseeably be crafted (such as continuing to be substance abuse free for another specified period), we do not see the utility in that. The respondent has already been abstaining from the proscribed substances for a lengthy period.

282. As the evidence before us demonstrated, the respondent is currently fit to practise with conditions. A further period away from practice would not benefit the public interest, other than by expressing the Tribunal’s censure. As explained above, we see no real utility to that course, in the circumstances of this case.

Reprimand

283. The Tribunal is satisfied that a reprimand is indeed called for. It is not a trivial matter, as discussed above. It will act as specific and general deterrence, and will also serve to uphold professional standards.

284. Here, the reprimand will clearly signal that the bounds of both reasonable expectations, and appropriate professional standards, have been breached. A reprimand is here required, to denounce the conduct of the respondent.

285. We have considered the applicant’s submission that in the most egregious cases, denouncement through reprimand may not be sufficient. Nevertheless, we consider that in this case, denouncement is served with a reprimand, viewed in the context of this case, which includes the stringent conditions and the respondent’s health journey.

Conditions

286. The conditions set out at the end of this Decision are imposed. These were in place previously, and we did not receive submissions from the applicant as to other appropriate conditions, as the submission was that only cancellation was appropriate. The Medical Council is the appropriate review body for the purposes of Pt 8, Div 8 of the National Law.

Further confidentiality orders not necessary

287. Prior to the hearing, confidentiality orders were made in relation to the names of the patients referred to in the Schedule to the Complaint. During the hearing, an issue arose as to whether it was appropriate for further directions, in relation to confidentiality, to be made, to protect the privacy and personal health information of another person who was treated by the respondent, or other details that might lead to the identification of persons already the subject of the confidentiality orders.

288. However, having regard to what we have found necessary to disclose in this, our written statement of reasons, which does not include the personal information of those persons or lead to their identification, we have decided not to make any further directions as to confidentiality.

Costs

289. The applicant seeks an order that the respondent pay its costs, as agreed or assessed. The applicant submits that costs are awarded to compensate the successful party and, as a general rule, costs of proceedings before the Tribunal should follow the event: H**ealth C**are C**omplaints C**ommission v Philipiah [2013] NSWCA 342 (Philipiah) at [42] (Emmett JA, Meagher JA agreeing at [1], Beech-Jones J agreeing at [50]).

290. The respondent submits that although there is a general rule that costs follow the event, costs orders are discretionary and should be made in a way that is fair. The respondent notes that he has made significant admissions, and accordingly, any costs should be reduced to reflect his admissions, and the extent to which his admissions have shortened the proceedings. The respondent also contends that other relevant considerations include his cooperation with the proceedings, and that the matter is primarily one of health and impairment. Further, the respondent submitted as a “general principle” that “where there is a mixed outcome in proceedings, the question of apportionment is a matter of discretion”.

Consideration of Costs

291. The parties, correctly, submitted that costs generally follow the event: Philipiah at [42], Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]. Cases in this jurisdiction treat the event as being the making of disciplinary findings and orders, even if not all the findings sought by the Commission are made, and even if orders made by the Tribunal are different to those contended for: see for example Health Care Complaints Commission v Litchfield (No 3) (Costs) [2023] NSWCATOD 44; Health Care Complaints Commission v Brush (No. 2) [2015] NSWCATOD 154; Health Care Complaints Commission v Khalighimonfared (No 2) [2022] NSWCATOD 101 (Khalighimonfared (No 2)). Even in such cases, the Commission is seen as successful. Where it is not clear that the costs applicant was successful, the Tribunal may find it is not appropriate to make a costs order. This was the case in Puri v Medical Council of New South Wales (No 2) [2024] NSWCATOD 122, where the Tribunal declined to make a costs order, as although the applicant was successful in obtaining a stay, the nature of the stay granted was different to what was initially sought, and the applicant failed in relation to a different concurrent application.

292. The power to award costs is to be exercised judicially, having regard to “proper fixed principles and rules of reason and justice”: Philipiah at [43]. Even where the Commission is successful, there are factors which “might militate against recovery by the Commission of all of its costs in particular proceedings” (Philipiah at [42]); however, the onus is on the losing party to establish a basis for any departure from the usual rule: Health Care Complaints Commission v Balafas (No 2) [2021] NSWCATOD 175 at [3] citing Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24].

293. In Philipiah, the Court of Appeal noted that “oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal”, including, for example “taking procedural steps that gave rise to unnecessary expense in preparing for the hearing”, might be a factor which may militate against recovery by the Commission of all of its costs in particular proceedings: Philipiah at [42].

294. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182, (reasons given by Basten JA at [2], McColl JA agreeing at [1], Sackville AJA agreeing at [58]), which considered a similar, but not identical, costs provision, ordered the practitioner pay 70% of the Commission’s costs, as there were three factors which militated against the Commission recovering all its costs:

295. The Commission was successful in obtaining findings against the practitioner in respect of unsatisfactory professional conduct, but not professional misconduct. However, “any reduction in costs on account of the part on which it was unsuccessful would be relatively minor”, as the factual basis for each complaint was the same (at [49] (Basten JA)).

296. The principal judgment made criticisms of the manner in which the Commission’s complaint had been pleaded, and that the Commission was “on notice of the need to revise its practices in this respect” (at [51] (Basten JA)).

297. The practitioner alleged oppressive conduct on the part of the Commission in the substantive proceedings, which was addressed in part in the principal judgment. However, the Court noted that “any realistic attempt to impose a costs penalty on the Commission should have been undertaken contemporaneously with the conduct complained of” (at [52] (Basten JA)).

298. In Khalighimonfared (No 2), the Tribunal ordered the practitioner to pay the Commission 75% of its costs. The Tribunal found the factors relevant to the reduction in costs payable included:

299. the failure of the Commission to establish that the practitioner “engaged in improper or unethical conduct relating to the practice or purported practice of medicine” (at [12]);

300. the failure of the Commission to obtain the orders sought, being at all times cancellation, and then a proposal, during the hearing, of suspension with conditions (at [6], [11]); and

301. the Tribunal’s finding that the cancellation orders sought at all times by the Commission were “unwarranted” and that “sanctions of a lesser degree of severity would be sufficient to ensure ‘the protection of the health and safety of the public*’*” (at [12]) (original emphasis).

302. We note that the applicant was not entirely successful: we have found that particular three of Complaint One and particular four of Complaint Three are not made out. Further, at all times the applicant sought an order of cancellation, rather than a less severe order such as a reprimand or conditions. However, we do not see either of these issues to be a basis for the reduction of costs recoverable by the applicant. The factual basis for particular three of Complaint One was the same as particular two of the same Complaint. Insofar as particular four of Complaint Three is concerned, although we are satisfied that the detection of tramadol in the pathology report of 23 August 2024 was the result of an environmental contaminant, the particular had some evidentiary support, was part of the broader context of Complaint Three (that the respondent had contravened the conditions on his registration on various occasions) and took up only a small portion of the hearing. Finally, although the applicant did not obtain the cancellation order sought, seeking such an order was not “unwarranted”: Khalighimonfared (No 2) at [12]. In reaching our conclusion that the imposition of conditions and a reprimand are appropriate, we were, in any event, required to consider the range of remedies available, of which cancellation formed a part. Furthermore, we gave serious consideration to cancellation. Accordingly, although the applicant was not entirely successful, this does not, here, warrant a reduction in costs recoverable by the applicant.

303. The respondent submits that any costs should be reduced to reflect the admissions made by him. We do not see that this warrants a reduction in costs awarded to the applicant, as although the respondent made numerous admissions, the Tribunal was required to be satisfied of the conduct complained of, and what, if any, order is appropriate: Health Care Complaints Commission v Khalighimonfared [2022] NSWCATOD 78 at [20]. Accordingly, it remained necessary to have a hearing. At the very least, it was necessary for the Tribunal to form a view as to the genuineness of the respondent, which was achieved through seeing him give evidence and hearing from the experts. Additionally, we note that costs saving has already been achieved by the respondent’s admissions, by reducing the hearing length and preparation required. Further, the admissions were an important aspect in the Tribunal’s assessment of the respondent’s insight, and were entirely appropriate and consonant with the respondent’s duty under s 36(3) of the NCAT Act to cooperate with the Tribunal’s guiding principle to facilitate the “just, quick and cheap resolution of the real issues in the proceedings”.

304. The respondent has not suggested any oppressive conduct or misconduct on the part of the applicant which would disentitle it to an award of its costs of the whole proceedings.

305. The respondent “observes that the matter is primarily one of health and impairment”. Yet, for the reasons referred to above, whilst the respondent’s impairment was a factor that contributed to his misconduct, his misconduct was not an inevitable aspect of that impairment.

306. We reject the respondent’s submissions that costs should be diminished or apportioned.

Conclusion on Costs

301. The applicant is entitled to recovery of its costs of the proceedings.

Orders

302. The Tribunal orders:

303. The respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) and (l) of the Health Practitioner Regulation National Law (NSW) (National Law) (particular one of Complaint One);

304. The respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) and (l) of the National Law (particular two of Complaint One).

305. The respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law (Complaint Two).

306. The respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(c) of the National Law (Complaint Three).

307. The respondent is guilty of professional misconduct within the meaning of s 139E of the National Law (particular two of Complaint One).

308. The respondent is guilty of professional misconduct within the meaning of s 139E of the National Law (Complaint Two).

309. Pursuant to s 149A(1)(a) of the National Law, the respondent is reprimanded.

310. Pursuant to s 149A(1)(b) of the National Law, the following conditions are imposed on the respondent’s registration:

311. To obtain Medical Council of NSW approval prior to changing the nature or place of practice.

312. Not to possess, supply, administer or prescribe any “drug of addiction” (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW).

313. Not to possess, supply, administer or prescribe any Schedule 4 drug listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW).

314. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions.

[CONDITIONS (5)-(16) ARE NOT FOR PUBLICATION]

9. The Medical Council is the appropriate review body for the conditions contained in Order 8.

10. The respondent to pay the Health Care Complaints Commission’s costs, pursuant to clause 13 of Schedule 5D of the National Law, as agreed or assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

11. The publication of the persons named in the schedule to the Complaint is prohibited under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW).

12. Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure or publication of Conditions 5-16 of the Tribunal’s orders is prohibited with the exception of the Medical Council, the Australian Health Practitioner Regulation Agency, the Medical Board of Australia, and the practitioner’s treating doctors.

13. The parties are to exchange and file with the Tribunal submissions on any other orders sought as to confidentiality, within seven days of this decision. In the event that no submissions are received, these reasons for decision as redacted by Order 12 will be published pursuant to s 165M of the National Law.

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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