Solicitors:
Health Care Complaints Commission (Applicant)
Blands Law (Respondent)
File Number(s): 1520120
[2]
Judgment
Background
The HCCC made an application to the Tribunal for disciplinary findings and orders and alleged that the Respondent is guilty of unsatisfactory professional conduct under section 139b of the National Law in that the Respondent has:
1. Contravened either by act or omission a condition to which the practitioners registration is subject; and
2. Listed as background to Complaint One that the practitioner obtained his dental surgery degree in 1982 and later that year was first registered in New South Wales as a general dentist.
On the 17th of February 2014, the Dental Council of New South Wales imposed conditions on the practitioner's registration, including condition 7 which stated "to abstain completely from the consumption of alcohol".
After a period of absence from work, in March 2014 the practitioner resumed work as a staff specialist within Western Sydney Local Health District (Westmead Hospital) and head of the department of clinical support at Westmead Centre for Oral Health.
In particulars of Complaint One, the HCCC stated that:
1. The practitioner breached condition 7 of his registration by consuming alcohol on;
1. 5 March 2014 after leaving his place of work;
2. 6 March 2014 after leaving his place of work; and/or
3. 7 March 2014 at his place of work.
In addition, Complaint Two alleged that the Respondent is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has:
1. Engaged in improper or unethical conduct relating to the practice or purported practice of dental practice.
Particulars of Complaint Two were that on the 7th of March 2014, the practitioner was intoxicated at his place of work. In doing so, the practitioner acted contrary to clauses 4.3.1 and/or 4.3.2 of the New South Wales Health code of conduct
Complaint Three alleged that the practitioner is guilty of professional misconduct under section 139E of the National Law in that he has:
1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration or;
2. 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 practitioners registration.
In respect of the particulars of Complaint Three, the HCCC repeated the particulars listed in Complaints One and Two, and relied upon them both individually and cumulatively.
Finally, Complaint Four alleged that the practitioner suffers from an impairment and in respect of the particulars of Complaint Four, stated that the practitioner has a physical and/or mental impairment, condition or disorder within the meaning of section 5 of the National Law, namely:
1. Alcohol abuse;
2. Alcohol dependence; and/or
3. Alcohol use disorder which is/are of a sufficient nature and degree to impair the practitioner's capacity to practice the profession of dentistry
The Tribunal was provided with a statement of agreed facts and issues which are set out below.
On 21 August 1995, the Respondent commenced employment as a permanent full time Dental Officer with the (former) Western Sydney Area Health Service.
From 26 August 1996, the Respondent was employed as a Dental Specialist with the Westmead Centre for Oral Health within Westmead Hospital (the Clinic).
On 4 March 2014, the Respondent returned to work at the Clinic as a Clinical Associate Professor of Dentistry and as Director of the Department of Oral Diagnostic Sciences, after a period of absence relating to an earlier suspension.
On 7 March 2014, the Respondent attended the Emergency Department at Westmead Hospital and subsequently had treatment as an in-patient at the Hills Clinic from 8 March 2014 to 21 March 2015.
On 4 April 2014, the Respondent was relieved of his duties pending an investigation by the Western Sydney Local Health District into his conduct on 7 March 2014. The Respondent attended an interview as part of that investigation on 28 May 2014.
The Respondent's registration was suspended after a hearing by the Medical Council on 17 April 2014. That suspension was lifted on 21 April 2015 and the Respondent is currently registered by the Australian Health Practitioner Registration Authority (AHPRA), albeit his registration is subject to a number of practice and health conditions.
Following the outcome of the investigation, the Respondent's employment with the Western Sydney Local Health District was terminated.
The background to the events that form the basis of the current complaint was available in some detail but what appears here is a summary only. The events of early March 2014 are described in a separate section below.
On 5 November 2010, a mandatory notification was made concerning the Respondent as a result of, amongst other things, allegations of alcohol abuse by the Respondent.
On 3 February 2011, health conditions were imposed on the Respondent's registration with the Respondent's consent, pursuant to s41P of the Health Practitioner Regulation National Law 2009 (The National Law). The conditions, amongst others, included that Dr Stewart undergo regular urine testing and abstain completely from alcohol.
On 16 June 2011, an Impaired Registrants Panel (IRP) inquiry was held and as a result, a number of health and practice conditions were placed on the Respondent's registration.
After a further IRP inquiry held on 15 December 2011, conditions on the Respondent's registration were lifted by the Dental Council of NSW on 3 February 2012 and his involvement in the health program ended.
On 16 November 2012, a further mandatory notification was made alleging that the Respondent was intoxicated while at work.
On 21 November 2012, the Respondent's registration was suspended by the Dental Council pursuant to section 150 of the National Law. The Respondent consented to the suspension pursuant to section 41P of the National Law.
On 17 January 2013, an IRP inquiry was conducted. This resulted in the suspension being lifted from 21 January 2013, but conditions were imposed on the Respondent's registration pursuant to recommendations of the IRP. These included, amongst others, regular urine testing and a requirement (condition 7) to abstain completely from the consumption of alcohol. The Respondent voluntarily agreed to the conditions.
A further IRP was conducted on 1 May 2013 and it was proposed that there be some change to the conditions but that recommendation was not accepted by the Council.;
From 23 July 2013 to 12 August 2013, the Respondent returned four positive Urine Ethyl Glucuronide tests (ETGs).
The Council resolved on 19 August 2013 to convene further proceedings under section 150 in relation to non-compliance with the conditions and those proceedings were held on 4 September 2013. The Respondent's registration was suspended with effect from 5 September 2013.
On 28 October 2013, the Respondent was referred to the Dental Council of NSW's health program.
On 5 December 2013, the Respondent was assessed by Dr Michael Giuffrida, psychiatrist at the request of the Dental Council.
On 12 December 2013, the Dental Council received a detected ETG result for the Respondent dated 2 December 2013.
On 13 February 2014, another IRP hearing was held. The practitioner's suspension was lifted from 17 February 2014, but a number of health conditions were imposed on the Respondent's registration including that he abstain completely from the consumption of alcohol. The conditions of 17 February 2014, were the conditions on the Respondent's registration at the time of the events described below, relating to the 7 March incident.
The Respondent returned to work on 4 March 2014. After an incident on 7 March 2014 (discussed in more detail below), he did not return to work at the Clinic.
On 9 March 2014, the Respondent notified the Council that he had had an "incident in [his] health status" and was under treatment at a private health facility.
Following a mandatory notification on 4 April 2014, the Respondent's registration was suspended by the Council which held proceedings pursuant to section 150 of the National Law on 17 April 2014.
On 29 May 2014, the mandatory notification (complaint) was referred to the Health Care Complaints Commission.
On 10 July 2014, the Respondent applied for review of his suspension and on 12 September 2014 section 150A proceedings were convened. Those proceedings were adjourned to 5 March 2015.
On 21 April 2015, the suspension was lifted by the Dental Council, which imposed further practice and health conditions on the practitioner's registration.
[3]
The events on and from 4 March 2014
After the suspension from practice, imposed on 4 September 2013, was lifted on 17 February 2014, the Respondent sought to return to work at the Clinic. He returned to work on 4 March 2014, on which date he signed a Return to Work Plan.
On 5 March 2014 after leaving the Clinic the Respondent consumed alcohol, contrary to the conditions on his registration.
On 6 March 2014 after leaving the Clinic, the Respondent consumed alcohol, contrary to the conditions on his registration.
On 7 March 2014, the Respondent attended the Clinic and later in the afternoon was found by staff at the Clinic with a nearly empty bottle of vodka. The Respondent was non-cooperative with the Clinic's staff and was subsequently taken to the Emergency Department at the Westmead Hospital. At the hospital he was tested and found to have a blood alcohol concentration of 0.34.
In respect of the Commissions complaint the allegations have been admitted by the Respondent and the issue that will be the subject of the Tribunal's proceedings is whether in addition to the conditions on the Respondent's registration already in place, further protective orders are necessary for the protection of the health and safety of the public, pursuant to the National Law, and if so, what protective orders are appropriate.
The Respondent currently has the following conditions applied to his registration status:
1. To obtain Dental Council of NSW approval prior to changing the nature or place of his practice;
2. To practise only in a setting where another registered dental practitioner will be on site who is aware of his public and private conditions of registration;
3. To return a copy of his full conditions to the Dental Council of NSW signed by his employer within seven days of the commencement of employment;
4. To not undertake solo practice;
5. To practice no more than 16 hours per week.
Private conditions:
1. To forward a written relapse prevention plan to the Council by 23 March 2015;
2. To forward a graduated return to work plan to the Council for approval by 23 March 2015;
3. To attend for treatment by a general practitioner of his choice, at a frequency to be determined by the treating practitioner. To authorise his treating practitioner to inform the Council of failure to attend for treatment, termination of treatment of if there is a significant change in health status (including a significant temporary change).
4. To attend for treatment by a psychiatrist of his choice with drug and alcohol expertise, at a frequency to be determined by the treating psychiatrist. To authorise his treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment of if there is a significant change in health status (including a significant temporary change).
5. To attend for treatment by a psychologist of his choice with drug and alcohol expertise, at a frequency to be determined by the treating psychologist. To authorise his treating psychologist to inform the Council of failure to attend for treatment, the termination of treatment or if there is a significant change in health status (including a significant temporary change).
6. To authorise his treating general practitioner, psychiatrist and psychologist to provide written reports to the Council on a three-monthly basis.
7. To abstain completely from the consumption of alcohol.
8. To undertake breath-testing for alcohol at his place of employment by a Council-approved supervisor in accordance with Council's protocol for breath-testing.
1. A breath-test must be submitted no more than 30 minutes prior to commencement of work.
2. Following the initial breath-test, if the practitioner takes a break that exceeds 30 minutes in length, an additional breath-test will be required before duties may be recommenced.
3. A breath-test will be required after seeing the last patient of work each day. To authorise the supervisor to provide a logbook of the breath-testing results to the Council on a fortnightly basis.
To continue to attend Alcoholics Anonymous meetings on a regular basis and to self-report to the Council on the regularity of meetings and on his progress in the program on a 3 monthly basis.
To attend a Doctors in Recovery meeting weekly and demonstrate attendance by providing a log book signed by his sponsor.
To attend for twice weekly (Ethyl Glucuronide) (EtG) testing in strict accordance with the Council's protocol (a copy of which has been provided to the practitioner). Results of EtG testing are to be forwarded to the Council appointed practitioner, his treating general practitioner, psychiatrist and psychologist and to the Council. Such testing will be at his expense.
To take Antabuse (disulfiram) under direct supervision of a health practitioner to be approved by Council. To authorise that health practitioner to report on his use of Antabuse in a format and frequency specific by the Council.
To attend for review by a Council Appointed Psychiatrist initially on a three-monthly basis or as otherwise directed by the Council, at the Council's expense.
[4]
The Hearing
Counsel for the HCCC opened the application and handed to the Tribunal the HCCC submissions. In simple terms, the HCCC submitted that the complaint is established and that the Respondent accepts that. The HCCC also handed the Tribunal various proposed conditions for practising in New South Wales, which will be dealt with later in this decision.
Following the opening submissions, the HCCC indicated that it does not propose to call any witnesses and that it had nothing to add to their case at this time.
The Respondent opened its case and confirmed that he has admitted the complaints and admitted the agreed statement of facts. The Respondent's position is that while this is a very serious matter, the process that he has been going through since March 2014 has given him insights into how he has to behave, and indicated the steps that he has taken which had assisted him greatly. The Respondent submitted that it is not necessary to cancel his registration, as the proposed conditions are sufficient to protect the public. Counsel for the Respondent indicated that the Respondent was available to answer any questions that the Tribunal may have.
In evidence, under oath, the Respondent advised the Tribunal that when he started at Westmead he took on a teaching role, which, over the years, had become largely administrative. He found that stressful and when his suspension was lifted and he went back to work, perhaps too quickly, he used alcohol to deal with it. He recognises that that is not a solution. He indicated that at the time he was under extreme stress, he was not coping. His marriage had broken up, his father was very ill and died.
Since March 2014 he has been having treatment and been seeing doctors and psychiatrists and they have helped him to deal with his problems and not to hide from them. He indicated that he has had a great deal of help from his involvement with Doctors in Recovery and his membership of Alcoholics Anonymous, where he goes every week. He is now the treasurer of a chapter of Alcoholics Anonymous that he attends. Since undergoing the treatment, he has learnt that alcohol does not help anything, and if he felt that he was at risk of taking alcohol he would contact his GP or psychiatrist.
Since the termination of his employment at Westmead Hospital he has been doing some work in Queensland. He has also been teaching and lecturing on sedation in Australia, the United States, Germany and other places.
He wishes to spend more time teaching in Australia and the United Kingdom and has been offered possible positions at the dental schools in New South Wales and Queensland.
The Respondent was cross-examined and indicated that he attends Alcoholics Anonymous Chatswood every Sunday and an average of three times per week when he is in the country. He has sought out Alcoholics Anonymous in other places but found the approach in America somewhat different to Australia and not very helpful. He feels that Alcoholics Anonymous is like going back to a family, and if you miss meetings you miss the contact.
He is currently working at Blacktown Hospital, which has dedicated educators and, being a new hospital, is very much up to date. He finds the working environment suitable and less stressful than the position was at Westmead. In his teaching role he operates as an associate professor and has continued in that role. His work at Blacktown Hospital is paid for by the University of Sydney. They do a lot of simulation work which does not involve patients. However, if he were to take an appointment at the University of Sydney doing general teaching, that would involve some clinical work being supervised by him. He was asked questions about his exposure to drinking when he is in the working environment or when he is travelling and teaching out of the country. He indicated that a lot of drinking does go on, but he abstains totally from any drinking at all. He was asked whether members of the public tried to force him to drink when in a social or business environment. He said that that does happen but he simply refuses.
[5]
Evidence Dr Florida
The Respondent called Dr Florida, an addiction psychiatrist who indicated that she saw him as a referral following the incident which occurred on the 7th of March 2014 at Westmead Hospital. She indicated that when she met him in 2013 he was lacking insight, but she thought that the incident at Westmead was a turning point. He seemed to be quite appropriate in how he was dealing with his situation and his acceptance of Doctors in Recovery and Alcoholics Anonymous. He has developed a growing insight into his problems.
Dr Florida reported that she had seen a marked attitudinal shift, where instead of looking to blame his surrounding circumstances, he was able to accept that he is responsible. She indicated that he has been engaged with her, and is engaging with a psychologist that has been very positive.
In respect of a possible relapse, Dr Florida indicated that there were two issues: one was compliance and two was what's in the mind. In respect of compliance he has been doing and been dealing with and complying with the conditions for so long, and accepts that despite its cost it is a necessary requirement for his protection.
In relation to what's in the mind, Dr Florida states that she has seen a significant change in his "headspace", to the extent that she does not believe that even if the restrictions were not there that he would just relapse.
Dr Florida was then cross-examined by the HCCC. In cross-examination Dr Florida was asked to address the fact that in March 2014 the Respondent had not just had a drink but that there was substantial drinking for 3 days. Dr Florida indicated that people who have had a high alcohol tolerance will quickly relapse into very high drinking. In terms of going forward and ongoing risk to the public, Dr Florida indicated that if she was giving evidence after the 2014 incident and not in late 2015 she would be much more reticent, but in light of his behaviour and his engagement with psychiatrists, psychologists and a GP, she feels that the risk to the public is negligible.
Dr Florida in fact states that she was comfortable that there was no risk to the public because he was operating under restrictions that were protective. She believes that now he is a different person, and even without restrictions she did not believe that he is a risk. Dr Florida was asked to comment on whether she believed that if he found himself in a stressed environment, whether he would be able to cope and how he would do so. She indicated that she regards him as being changed. She believes that he would have a much more appropriate response. His approach to her when seeing her is much less evasive and less defensive about everything around him. She sees him monthly and is comfortable with his progress.
When asked about the conditions operating in respect of the Respondent, she indicated that she thought that they were a bit more restrictive than they needed to be, and if he drank and is on supervised use of Antabuse there would be a reaction which would be obvious.
Dr Florida was asked by Tribunal member Dr Boland why she had a confidence level at this time when she has had previous confidence levels and there have been relapses. Dr Florida indicated that most things in psychiatry have a multiplicity of layers and she thought that his circumspection had significantly improved. Dr Florida also indicated that she did not believe that he has an addictive personality and that he would move onto other substances which addictive personalities might do, such as drugs, exercise, sugar etc.
Dr Florida was asked some questions by Tribunal member Dr Lang, in particular questions as to why a number of the urine tests were diluted. Dr Florida indicated that men clinically often have difficulty passing urine, particularly when being observed and they will often take water before to assist with the passing of urine. Spikes in the test results were something that would not affect her view. She would look at how the patient is presenting clinically, rather than relying on results which can have so many affecting factors.
That concluded Dr Florida's evidence.
The Respondent intended to close its case, however, the Tribunal indicated that it required Dr Giuffrida to be called to give evidence to the Tribunal. Dr Giuffrida was asked to express views on the toxicology reports where there might be dilution. Dr Giuffrida indicated that dilute samples of itself is not the issue unless the samples are always diluted. Dilute samples of itself does not prove that it is an intentional method of avoiding testing results. Dr Giuffrida was asked to comment on the Impaired Registrants Program and indicated that in his view, people who have long-term alcohol abuse should be in the Impaired Registrant Program for at least 3 years.
Dr Giuffrida was asked to express a view on his consideration of Dr Stewart's ability to work with patients. Dr Giuffrida indicated that the Respondent gave the impression that as long as he is sober then he is capable of doing that. He also shows a lot of compassion for his patients and that Dr Giuffrida regarded the risk as being dependant on the processes put in place to guard against the risk. In his view, conditions can deal with that. As far as he is concerned, he can infer that he is competent to do clinical work, as long as he is abstinent and that is answered by the conditions. Dr Giuffrida indicated that he has been in practice for a long time and that the only complaints against him have been regarding the abuse of alcohol but not against his competence. He has been working in the field for more than 20 years and there have never been any complaints about his clinical practice. Therefore, absent alcohol, he should be able to go back to clinical practice.
Dr Giuffrida was asked to comment on the conditions and believed that they were adequate to protect the public.
Following the conclusion of Dr Giuffrida's evidence, the Respondent returned to the witness box to answer further questions. He was asked whether he believes that he is now able to cope with negative comments regarding his impairment and the circumstances which previously led to his relapse. He believes that he can, and indicated that he has been at functions and in environments where he has seen several of those that he would regard as "antagonists" to whom he spoke civilly and then just ignored them.
When asked to comment on whether he thought that the Dental Council treatment of him was fair, he replied that as far as he was concerned, he believed they had no choice. He indicated that he now has appropriate support and was happy to live with the conditions which were being proposed to be listed on his registration if he was allowed to continue to practice.
He was asked what his ideal working environment would be. He responded that his ideal position would be clinical teaching, but that is always dependant on funding. In China, he can do large amounts of work, and he can do more work at Harvard. If there was funding in New South Wales, he would want to do so in New South Wales and he has been approached by the Dean of Sydney University to see whether he would like to do that teaching in Sydney.
That ended the evidence and the parties closed their cases.
[6]
Submissions
The HCCC then referred again to their submissions, which were very extensive and dealt with the various issues facing the Tribunal in coming to a conclusion. They addressed the relevant legislation and pointed out to the Tribunal the protective nature of the Tribunal's jurisdiction.
The HCCC submitted that the Tribunal is not bound by the Rules of Evidence and that the Tribunal can be comfortably satisfied that Complaints One, Two, Three and Four were all established, but that the HCCC was not seeking deregistration or suspension of the Respondent as they are satisfied that the Respondent has made great strides in recovering from his impairment and that conditions which the Council proposes are sufficient to protect the public. The HCCC confirmed the protective nature of the Tribunal under section 3(a), Sudath v HCCC (2012) 84 NSWLR 474, Briginshaw v Briginshaw (1938) 60 CLR 336, HCCC v Litchfield (1997) 41 NSWLR 630.
The HCCC submitted that conditions such as those proposed by the HCCC and the Respondent should be acceptable but recognised that the Tribunal has the power to impose whatever conditions it believes appropriate. In that regard the HCCC referred the Tribunal to the principles enunciated in HCCC v Dr Della Bruno (2014) NSWCATOD 31 and Prakash v HCCC (2006) NSWCA 153.
Finally, the HCCC submitted that the normal costs orders should be applied and that Dr Stewart should be ordered to pay the costs of the HCCC.
In response to the HCCC submissions, the Respondent stated that the submissions made by the HCCC were all submissions that could be accepted by the Respondent as reflecting the approach which the Respondent is happy to accept.
In regard to costs the Respondent submitted that there should be no order as to costs. The Respondent had admitted the entire complaint against him. The matter would have run for a very much more significant period of time had the Respondent not made the admissions which he did. The Respondent sought to differentiate the decision in Qasim and subsequent decisions, on the basis that the Respondent had no choice whether to be involved or not in the matter and that his admissions should mitigate against a costs order.
[7]
Decision
The Tribunal had regard to the evidence given by the Respondent and the impression which they gained from his evidence. The Respondent does seem to have insight into his problem and that he is dealing with it in a positive manner. The Tribunal had regard to the fact that the Respondent had had various breaches of conditions on previous occasions, but in those instances the breaches came at a time very shortly after the imposition of the conditions, and at a time when the Respondent viewed his problems as being external and circumstantial.
The Tribunal came to the conclusion that having regard to the length of time since the 7th of March 2014 (approximately 20 months) that the Respondent had been abstinent and the steps which the Respondent had taken to deal with his impairment that they could be comfortably satisfied that, subject to appropriate conditions being imposed on the Respondent, the public would be sufficiently protected. That view would not have been reached solely on the evidence of the Respondent, but the Tribunal had regard to the evidence of Dr Florida, his treating psychiatrist who indicated that the Respondent had made great strides in understanding his position, understanding his problem and recognising that the problem was one that he had to deal with and not to rely on a view that surrounding circumstances were causing him to have difficulty.
In addition, the Tribunal had significant regard to the evidence given by Dr Giuffrida, a psychiatrist who had seen the Respondent at the request of the HCCC and who was of the view that, subject to appropriate conditions, the Respondent could and should be allowed to continue working even if he was working totally clinically. It is clear from the evidence given that the Respondent does not intend to work totally clinically as he appears to prefer his teaching role which, of necessity does involve some element of clinical work.
In all the circumstances and weighing up the protection of the public, the protection of the good name of the profession and the likelihood of a relapse, the Tribunal came to the conclusion that it would be inappropriate for the Tribunal either to suspend or cancel the registration of the Respondent and that the Respondent should be allowed to work as a dental practitioner subject to stringent conditions which will be set out in the orders made below.
The Tribunal did note that Dr Giuffrida in his evidence indicated that in his view a person with an impairment of the type from which the Respondent suffers, should be in the Impairment Registrants Program for a minimum of three years. The Respondent was released from that program short of three years, and while the Tribunal is not proposing to make any orders in respect of the Impairment Registrants Program, believes that the Council should consider whether it is appropriate for the Respondent to be reinstated into that program for a period of three years.
[8]
Orders
The Respondent is permitted to continue practising in his capacity as a dental practitioner, subject to the following orders:
Critical compliance condition:
1. To abstain completely from the consumption of alcohol;
Public conditions:
1. To obtain Dental Council of New South Wales (the Council) approval prior to changing the nature or place of his practice;
2. To practice only in a setting where another registered dental practitioner will be onsite, who is aware of his public and private conditions of registration;
3. To return a copy of his full conditions to the Council signed by his employer, health professional or any person for whom he may be conducting clinical work ("the employer") within seven days of the commencement of such employment;
4. To not undertake solo practice;
5. To practice no more than 16 hours per week;
Private conditions:
1. To attend for treatment by a GP of his choice at a frequency to be determined by the GP, to authorise his treating GP to inform the Council of his failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change);
2. To attend for treatment by a psychiatrist of his choice at a frequency to be determined by the psychiatrist. To authorise his treating psychiatrist to inform the Council of his failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change);
3. To attend for treatment by a psychologist of his choice at a frequency to be determined by the psychologist. To authorise his treating psychologist to inform the Council of his failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change);
4. To authorise his treating GP, psychiatrist and psychologist to provide reports to the Council on a three-monthly basis;
5. Before undertaking any clinical work, to undertake breath-testing for alcohol at his place of employment in accordance with the Council's protocol for breath-testing:
1. A breath test must be undertaken and result recorded no more than 30 minutes prior to commencement of work;
2. Following the initial breath-test, if the practitioner takes a break that exceeds 30 minutes in length, an additional breath-test will be required and result recorded before duties may be recommenced;
3. A breath-test will be required and recorded after seeing the last patient of each working day, and
To authorise the supervisor to provide a log book of the breath-test results to the Dental Council.
1. To continue to attend Alcoholics Anonymous meetings on a regular basis, and to self-report to the Council on the regularity of the meetings and on his progress in the program on a three-monthly basis;
2. Attend a Doctors in Recovery meeting weekly and demonstrate attendance by providing a log book signed by his supervisor;
3. To attend for twice-weekly (EtG) testing in strict accordance with the Dental Council's protocol. Results of the EtG testing are to be forwarded to the Council appointed practitioner and his treating general practitioner, psychiatrist and psychologist and to the Council. Such testing will be at the Respondent's expense;
4. To take Antabuse (Disulphiram) under direct supervision of a health practitioner to be approved by the Council, who is not a member of the Respondent's family, a person whom the Respondent has a personal relationship with or a person who is employed by the Respondent. The administrative regime is to be reported in a format and frequency specified by the Council;
5. To attend for review by a Council appointed psychiatrist initially on a three-monthly basis or as otherwise directed by the Council, at the Council's expense.
Review body:
1. In the event that the practitioner seeks to review these orders and/or conditions under section 163 of the National Law and his principle place of residence is in New South Wales, such an application shall be heard by the Dental Council of New South Wales as the appropriate review body;
2. If the practitioner's principal place of residence or place of practice is other than New South Wales, sections 125 - 127 of the National Law shall apply and the review body shall be the Dental Board of Australia.
[9]
Costs
The Respondent shall pay the costs of the Applicant
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
[10]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 December 2015