Health Care Complaints Commission v Street

Material before the Tribunal 13From the Commission: The Notice of Complaint filed 7 October 2013 (an amended version, with minor amendments, was tabled at hearing). Seven Volumes of evidence in support, of which five volumes (Volumes 2 to 5) comprise material relating to the 30 patients, whose cases are the subject of the particulars of complaint). At hearing the Commission supplemented the Seven Volumes with an up-to-date notice of registration covering the period since the National Law took effect (1 July 2010 onwards), an evidentiary certificate in relation to Dr Street's registration history between 1977 and 2010 and an updated CV for the Commission's expert, Dr Stevenson. 14Key documents in the Commission's bundle were the following:

• Pharmaceutical Services Unit, Department of Health: Transcript record of interview between Kim Dolan (PSU Investigator) and Dr Street on 19 October 2011 (in Volume One)
• Medical Council, transcript of s 150 proceedings held on 26 June 2012; and written reasons for decision dated 8 August 2012 and the report of Dr Andrew Pethebridge report, Senior Staff Specialist, 10 December 2012 (in Volume Six)
• Expert report to the Commission of Dr Janine Stevenson, MB BS, MM (Psychotherapy), PhD, FRANZCP, dated 6 March 2013. This is a report of 50 pages length, with attachments of 363 pages, covering the laws, regulations, practice standards and ethical guidelines that relate to the conduct under notice (in Volume Six). 15From Dr Street:
• a folder of documents, with eleven parts.
• The folder included two affidavits from Dr Street; medical and similar reports - from a long term professional colleague, Dr Jurd, who practises at Hornsby, endorsing his fitness to practise under conditions; from his treating psychiatrist, Dr Brash, who practises at Lakelands, recording the improvement in his condition over the last two years; from Dr Tim McDonald, who practises at East Maitland, his clinical supervisor for the period 29 October 2012 to 4 March 2013; from Dr Laurie Lack, who practises at Swansea, his treating GP since 2007; the Pethebridge report (already mentioned, and is also part of the Commission's material); various positive patient testimonials in relation to Dr Street; and, importantly,
• Dr Street's suggested conditions for return to practice together with
• The offer of employment dated 22 September 2014 from Hunter New England Local Health District. 16At hearing the Commission called on Dr Jurd and Dr Brash to be cross-examined. They gave evidence by telephone. Dr Street was called, and cross-examined by the Commission. 17Dr Stevenson was called by Dr Street. She attended by telephone. Given Dr Street's admissions as to all matters, and acceptance of the opinions and contents of Dr Stevenson's report, she was not cross-examined in any significant way. 18Counsel for the Commission made oral submissions in elaboration of her written submissions. Counsel for Dr Street made oral submissions.

Notice of Complaint - Background 19The complaints now filed follow on from action by the Medical Council of NSW in 2012 under s 150 of the National Law. That provision allows the Medical Council of NSW to take action in the public interest to suspend or place conditions on a practitioner's registration where there is a risk to public health and safety in allowing the practitioner to continue in practice on an unrestricted basis. After investigation and hearing, the impaired registrants panel of the Council conducted a hearing on 26 June 2012, decided to impose restrictions on Dr Street's registration (reasons for decision, 8 August 2012). 20At the s 150 hearing Dr Street admitted that he had 'self-administered' Schedule 8 drugs of addiction, mainly Dexamphetamine, and he done so over a long period of time. He admitted that he had fabricated patient prescriptions to support his activities, and that he had obtained the drugs from pharmacists pretending that he was picking them up on behalf of patients. He admitted that he had prescribed Dexamphetamine for patients where that was contra-indicated. 21The conditions imposed were stringent and covered the period 3 July 2012 to 28 February 2013. 22Those conditions divided into: six practice conditions; and thirteen personal health conditions. Practice condition 1 was not to hold authority to possess, prescribe, supply, dispense or administer drugs of addiction (Schedule 8 drugs) and not to possess, prescribe, supply, dispense or administer any drug of addiction (Schedule 8 drugs). Practice condition 2 was not to undertake solo psychiatric practice. 23The remaining practice conditions required him to obtain Council approval if changing the nature or place of practice (condition 3), to ensure that any new employer had notice of the conditions on his registration (condition 4), to enter into a detailed supervision plan (condition 5), and to allow exchange of information between relevant bodies (condition 6). 24The personal health conditions commence with a prohibition on self-medication (condition 1), and require him to attend for treatment a general practitioner (condition 2), a psychiatrist (condition 3) and a drug and alcohol specialist (condition 4). He was also required to attend one or more of the following support groups (Narcotics Anonymous, Doctors in Recovery or Alcoholics Anonymous) (condition 5), that he was to be guided in relation to the extent of his professional medical duties by his health status and his treating practitioners (condition 6), not to self-administer Schedule 4D or 8 drugs (condition 7) and not to prescribe for any family members (condition 8). The final four conditions dealt with notice of any personal prescription to him of Schedule 4D drugs, narcotic derivative, psycho stimulant and non-prescription analgesics or cold medication (condition 9), attendance three times a week for urine drug testing (condition 10), attendance for review by the Council's appointed psychiatrist every three months (condition 11), attendance at a review interview every three months (condition 12) and to allow exchange of information with relevant bodies (condition 13). 25Complaints 1 and 2. It will be seen (Appendix to these reasons) that Complaints 1 and 2 deal with different facets of his conduct in relation to the thirty patients referred to in Schedule A. 26Complaint 1 has as its particulars numerous instances of misconduct in the period March 2010 to August 2011 in relation to the prescription of Schedule 8 drugs of addiction, fabrication of authority number on prescriptions, diverting the prescribed drugs for his own use, making false representations to pharmacists, taking possession of the medications on the occasions specified in Schedule B otherwise than in the lawful conduct of medicine, unlawfully self administering medications , making false entries in medical records, falsely denying to investigators (on 19 October 2011) that he was diverting medications for his own use, treating patients listed in Schedule C with dexamphetamine sulphate when it was contraindicated, treating the patients listed in Schedule D with the medication on an experimental basis without observing ethical standards as to notice and the like, diagnosing certain patients with a disorder without a sufficient clinical basis, treating his de facto partner with psycho active medications (between August 2010 and October 2011), prescribing one patient with testosterone without proper clinical foundation (between July 2010 and September 2011). 27Complaint 2 has as its particulars the inadequacy of the records kept by him in relation to his treatment of the thirty patients listed in Schedule A. The allegation in each instance is that the records fail to record adequately each of the critical elements of an adequate medical record. 28Each of Complaints 1 and 2 contains an assertion by the applicant that the conduct alleged, if proven, constitutes 'unsatisfactory professional conduct' under s 139B of the National Law. This term has a general meaning (see para (a) of s 139B(1) and a number of more specific meanings addressed to particular types of conduct). The two categories of relevance to these complaints are (a) and (b), i.e. 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following- (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. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. 29Complaint 3 relies on the same particulars as Complaints 1 and 2, and asserts that the conduct falls within the meaning of the higher category of 'professional misconduct' , as set out n s 139E, i.e. 139E Meaning of "professional misconduct"[NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 30Complaint 4 is that Dr Street suffers from an impairment that detrimentally affects or is likely to detrimentally affect his capacity to practise the profession. The particulars refer to two periods: first, the period 2002 to 2011 when he practised as a psychiatrist in Sydney and Swansea, NSW; and secondly, a period of six months in 1981 in Darwin when he practised as an anaesthetic registrar. 31'Impairment' is defined relevantly (National Law, s 3) as follows: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect- (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; 32The Medical Council may refer to the Commission for referral to the Tribunal a complaint of impairment (see ss 145B, 145C) and, in particular, must refer serious complaints that it is of the opinion may, if substantiated, provide grounds for the suspension or cancellation of registration. There is a discretion not to refer it the practitioner is no longer registered (s 145I). 33The Tribunal's order-making powers are set out at ss 149 to 149C of the National Law. They are wide-ranging. Where allegations are found proven, or admitted in writing by the person charged, it may deal with the matter either by making orders that do not affect the practitioner's ability to continue to practise, or may make orders that remove the practitioner from practice. These powers extend to practitioners who are no longer registered (the present case), and the orders made operate as a pre-condition to any future application for registration.

Admissions 34As noted earlier, Dr Street has admitted, without qualification, all of the particulars alleged against him in respect of Complaints 1 and 2. He did not cavil with the view that the conduct was so serious as to constitute professional misconduct. 35We have reviewed all the material, and in particular the transcript of the s 150 hearing, the reasons for decision on that occasion, the assessment made by Dr Pethebridge in December 2012, and, most importantly, the comprehensive and compelling report of Dr Stevenson. 36Dr Stevenson is an eminent psychiatrist, who has practised in, and held supervisory positions in relation to, clinical psychology, psychotherapy and clinical psychiatry, and has served on a number of the peak bodies of the profession and the peak bodies in her fields of specialty. She has an extensive record of professional publications and professional conference presentations.

Findings 37We find all of the particulars of Complaints 1 and 2 proven, and rely in that regard on the analysis contained in Dr Stevenson's report. 38We draw attention to the following findings in Dr Stevenson's report. Dr Stevenson reviewed the documentation provided to her in relation to the 30 patients whose treatment is the subject of Complaints 1 and 2, treatment belonging to the period March 2010 to August 2011. She was asked to provide her opinion as to whether the standard of conduct fell below the standard to be expected of a practitioner of an equivalent level of experience, and if it did, the significance of the departure. In particular she was asked to provide her opinion in relation to the adequacy of his prescribing practices in relation to each patient, and the clinical appropriateness of his prescribing practices for patients diagnosed with post-traumatic stress disorder (PTSD) or diagnosed with attention deficit hyperactivity disorder (ADHD). She was asked to provide her opinion in relation to the clinical appropriateness of prescribing dexamphetamine to patients for self administration, and the clinical management of patients referred to him. She was asked to provide her opinion in relation to the adequacy of Dr Street's medical records practices; and his conduct in self-prescribing and using prescriptions ostensibly written for patients as a means of obtaining drugs for his own consumption. 39In all of the 30 patient cases Dr Stevenson reviewed, she made negative comments in relation to most or all of the matters to which she was asked to give attention. Those matters were: the purpose of the prescription; its quantity; its duration; its frequency; contraindications; risk of dependence/abuse; failure to apply for NSW Ministry of Health authority (MHA) with specific reference to s 28 of the Poisons and Therapeutic Goods Act 1996; and failure to maintain a drug register. 40She referred in a number of instances to the prescription of drugs that are not recommended for treatment of the presenting conditions (for example, dexamphetamine for a PTSD presentation, several instances; and the same for an ADHD presentation, again several instances). She referred to numerous instances of over-prescribing. She referred to failures to evaluate the effect of a prescription. She referred to numerous failures to take a proper patient history, and in particular instances where the patient history itself suggested care needed to be exercised in prescribing particular medications. She referred to numerous failures to maintain a drug register. She referred to instances where the patient manifested side effects, and no corrective action or change in the prescription regime was made. 41In relation to the adequacy of Dr Street's record-keeping, Dr Stevenson reported under three headings in relation to each patient: the quality of the records regarding prescribing; the quality of consultation records; the accuracy of records. Again her report was overwhelmingly negative. In each instance there were negative comments in relation to the first two matters (prescribing, consultation), and often she could not offer an opinion on accuracy due to the prior inadequacies of the records. 42In relation to Dr Street's conduct in self-prescribing, Dr Stevenson described his conduct in writing prescriptions in the name of his patients, having them filled and then using him for his own purposes, as 'fraud'. Even in those cases where the medication obtained was passed on to the patient she noted that this was not good clinical practice, as it broke the important nexus between the pharmacist and the patient in this area. She referred to the specific guidelines that govern self-prescribing by medical practitioners; endorsing prescriptions with invalid MHA numbers; and the supply of drugs of addiction to patients. 43At hearing, Dr Street was taken in cross-examination to a representative cross-section of opinions expressed by Dr Stevenson. He did not dispute any of her conclusions. For example in the instance of the matter addressed in Schedule C of Complaint 1, Patient H, he acknowledged that he had obtained the medication prescribed for his own use, and had fraudulently used the name of the patient. He said that 'my level of functioning at that time was appalling', and that he doubted that any of his clinical decisions 'were remotely well reasoned'. This answer was typical of his replies to many of the questions put to him about specific instances of misconduct. 44He was cross-examined on his reasons for making contra-indicated drug prescriptions for PTSD and ADHD patients. He said that his prescription of dexamphetamines to PTSD patients was influenced by studies with which he had been aware in his days at the Northside Clinic in the War Related Trauma Centre that suggested psycho stimulants produced a marked improvement in patients with PTSD. He acknowledged that he had never taken these studies to peer review. He acknowledged that at the time of the actions under notice in the complaint he lack knowledge of current clinical understanding of this issue. He also referred to research that he had tracked down on the internet in 2006 that he had saw as giving him a justification for his practices, but he now accepted that his lucidity at the time was affected, and that in retrospect it was bizarre treatment. He would 'absolutely not' consider using these treatments for PTSD and ADHD patients in future. 45He gave answers along similar lines in relation to his behaviour in fabricating prescriptions, misleading pharmacists, and self-prescribing. 46Complaints 1, 2 and 3: In our view the only sensible conclusion is that the conduct proven constitutes professional misconduct. It is conduct of the gravest kind, involving a dereliction of duty towards the patients nominated in the ways specified in the complaints. It involves a sustained pattern of fabrication and deceptive conduct. Not only did Dr Street engage in self-abusive behaviour that affected his competence to practise, he also implicated unknowingly his patients in his pattern of deception by issuing prescriptions in their names that were not meant for them. 47In a number of instances, Dr Street failed to obtain any useful history that would have alerted him to underlying conditions such as schizophrenia where amphetamines were absolutely contraindicated or in patients with cardiovascular disease including hypertension and the like. We do not accept that he was at all times so impaired that he did not appreciate that what he was doing was wrong and dangerous for his patients. 48Accordingly we find the particulars set out in Complaints 1 and 2 proven, and uphold Complaint 3. We find Dr Street guilty of professional misconduct. 49Complaint 4: As to Complaint 4, Dr Street formally admitted that he was suffering from an impairment. 50In his report of 10 December 2012, Dr Pethebridge said (at p 8): Dr Street has clearly been impaired during two periods in his career. The first was when he was using omnopon in Darwin which he was aware was creating problems for him and was able to cease using with the help of a friend and career break. The second point was over recent years when he started to self-prescribe dexamphetamine at increasing doses. He was clearly affected by this medication when he was in his clinic. The reasons for commencing this drug were not clearly related to a known indication for this stimulant. 51We note that the evidence before us is that Dr Street's dexamphetamine consumption began as a result of a prescription given by a treating doctor based on a legitimate therapeutic indication. Later he began to self-prescribe. We would qualify Dr Pethebridge's statement to that extent. 52Despite Dr Street's formal admission of Complaint 4, there was, in our minds, some uncertainty as to whether that was, strictly interpreted, the position that he was putting at hearing. In his evidence at hearing he tended to put the view while once impaired he was no longer impaired, or at the least he was not impaired to an extent that might bear on his fitness to recommence practice. 53He appeared at times to be drawing a line between a past condition, which he acknowledged unreservedly was one of addiction (for the periods set out in the particulars to complaint 4) and what he saw as his present situation - no involvement with drugs for the last two years, a sound general state of health, and good mental functioning. In that regard he referred to the reports from doctors Brash and Lack, in particular. 54Dr Street has a history of addiction wider than is suggested by the particulars. It extends at least to a third type, alcohol addiction. Dr Street referred in his evidence to a pattern of heavy drinking when he was a medical student between 1972 and 1977, and further heavy drinking when he worked in Darwin between 1979 and 1981, and his entry into alcohol addiction recovery programs to address that issue. 55He also stated, and we accept, that there were long periods when he was successful in overcoming the various addictions. He referred to his active participation in support groups to assist him in that process (he mentioned in evidence Doctors in Recovery and Alcoholics Anonymous, and referred often to its Twelve Steps recovery program). 56Our conclusion is that Dr Street has struggled with drug and alcohol addiction throughout his career. While there are long periods when he has managed to avoid addictive behaviour they have recurred at intervals that suggest an underlying vulnerability that persists. We acknowledge that his present treatment regime and personal regime is working well, and the evidence is that he has no present aberrant behaviour. 57In his affidavit, Dr Street stated that he abstained from all drugs in the period 1982 to 2002, and this was not challenged. In that period he held appointments at the Mona Vale Hospital (in Accident and Emergency), 1982-1986 and in 1986 commenced psychiatric training at Royal North Shore Hospital under Dr Jurd. From 1993 on, he stated that he worked as a private psychiatrist at St Leonards, and ran several in patient clinics at Northside clinic. He was also appointed a VMO at Ryde and Hornsby Hospitals. During this period he was involved in Doctors in Recovery and in giving assistance to impaired doctors with addictions, such as alcohol and gambling. He said that around 1996 he was diagnosed with adult ADHD. 58He admitted that he was affected by addiction for the whole period 2002-2012. By the year 2000 he had moved to Swansea and taken up private practice. His evidence was that he retained a connection to Hornsby Hospital and that continued into the first part of the period after 2002. But for most of the period between 2002 and 2012, he practised in isolation as a sole practitioner. Dr Street acknowledged that in the 2004-2006 period he was deeply affected by addiction to amphetamines. He referred to the impact of divorce on his mental health. He was non-specific as to extent and duration of his misuse of amphetamines, but referred in his affidavit to reaching a point where he was regularly taking 75 tablets a day of dexamphetamine, in three divided doses. He referred in florid terms in his oral evidence at hearing to the depth of his situation in that period. He referred to the chaos of his family life, his failures in personal relationships and his inability to manage basic matters, such as household finances and paying bills, and the like, in circumstances, he said, where he had the means to pay. 59We are not satisfied that Dr Street does not continue to be affected by impairment. In these regards we note the following statements in Dr Brash's first report, each of which was the subject of cross-examination: My own assessment of him tended to agree that he probably did have Attention Deficit Disorder with symptoms present from childhood that were presenting in adulthood with impulsivity, disorganisation and memory problems. ... After several visits, Dr Street gave me further information about his misuse of dexamphetamine that had gone largely undetected for about 10 years and involved using eight different pharmacies. My diagnosis is that he does have Attention Deficit Hyperactivity Disorder that it has probably been present all his life and has caused problems with disorganisation and impulse control. Unfortunately, this has also led to self-prescribing excessive amounts of amphetamine. 60Dr Brash stated in his second report in reply from a question from Dr Street's solicitors as to whether Dr Street's behaviour was a result of his addictions to amphetamines: This is very clearly the case in my opinion. He was taking extremely large amounts on a daily basis and would have been behaving in an erratic way. At that time I had been told by some of his patients who I had seen for second opinions that Dr Street had painted his room completely black, had grown a long beard and looked unkempt, was commonly late for appointments and at times seemed to be somewhat distracted and confused. These behaviours are certainly consistence [sic] with someone taking very large amounts of psycho-stimulants. 61In answer to the next question, as to whether ongoing successful psychiatric treatment might be expected to address these behaviours, he said: With abstinence and proper controlled prescribing of psycho-stimulants in normal therapeutic doses, these behaviours would be expected to change quite rapidly. In fact, this was very the case by the time he came to see me for treatment have was no longer abusing dexamphetamine he was behaving quite normally again. 62It is necessary to identify a present impairment to find the complaint proven (see Tung v Health Care Complaints Commission [2011] NSWCA 219 at [58], [60]). It is not necessary to define the condition suffered with a high level of precision, or in terms of narrow diagnostic labels (Grant v Health Care Complaints Commission [2003] NSWCA 73 at [11]). 63We find Complaint 4 proven, though we would describe the present impairment not in the way suggested by the particulars, but as a significant vulnerability to drug and alcohol abuse originating in a continuing ADHD condition.

APPROPRIATE ORDERS 64Disciplinary orders have as their ultimate purpose the protection of the public, using 'public' in its widest sense. The National Law, at s 3(2)(a) states as a key objective of the Law: (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. 65Section 3A of the National Law (a discrete NSW provision) provides: Objective and guiding principle (NSW) In the exercise of the functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 66In a recent decision, Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said at [35] per Meagher JA (Basten, Emmett JJA agreeing): 35 The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from 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. 67Dr Street pressed a case not to be the subject of an order that prevented him from re-entering practice and taking up the offer of a six month trial position working in Psychiatric Emergency Services at the Mater Hospital in Newcastle under the overall supervision of Dr Marcia Fogarty, Director of Medical Services , Hunter New England Mental Health. She reports in turn to Dr Martin Cohen, Director of Mental Health, Hunter New England Local Health District.

Offer of Employment 68Dr Fogarty referred in her letter dated 22 September 2014 to the material that she had been provided with by Dr Street's solicitors which included the Medical Council registration conditions, the Notice of Complaint, Dr Pethebridge's report of 10 December 2012 and the reports from the various doctors that were included in the folder presented to this hearing by Dr Street. She noted that Dr Street had met both Dr Cohen and her to discuss the possibility of engagement by the health service. She said: He was very candid about his circumstances and the conditions on his medical registration. We considered the possibilities of being able to employ an experienced Australian trained psychiatrist measured against the risks for our patients, staff and organisation given this history. He was further assessed by a standard employment interview panel. We have decided to give Dr Street a six month trial at 0.5FTE, working as a psychiatrist under supervision. If the trial proceeds well for all, we will offer him a more permanent appointment. 69The letter went on to describe, in some detail, the nature of the work that would be performed, and the nature of the unit to which Dr Street would be attached. The description emphasised the busy, team work nature of the environment. Dr Fogarty emphasised that the service did not prescribe amphetamines. If a patient presents who is already on amphetamines, the prescription would be continued, but Dr Fogarty gave an undertaking that Dr Street would not be assigned to any such patient. She set out in detail the supervision arrangements to which Dr Street would be subject. 70She continued: 'We believe this will be a safe and supportive environment to allow Dr Street to complete his rehabilitation. I would prefer to be able to request a random urine sample at any time to ensure his ongoing compliance with his conditions and to assure our service of the safety of these arrangements. Dr Street understands that if we have any concerns, he will be immediately stood down pending investigation.' 71She undertook to ensure that the service complied with all conditions set down in any order that allowed him to return to practice.

Consideration 72The conditions imposed by the Medical Council ceased to apply to Dr Street when he did not maintain his registration. It is unclear, from the material placed before us, to what extent Dr Street fulfilled the Council's conditions in their period of operation, 3 July 2012 to 28 February 2013. We understand that he did not practice in this period, as he was unable to find a hospital or group practice in which to work in psychiatry (see Dr McDonald's letter). Dr McDonald, his appointed clinical supervisor, noted that Dr Street was fully co-operative with the letter and spirit of his requirement to attend for clinical supervision during the period mentioned. He said that he was willing to resume the role of clinical supervisor if that would help him to resume practice. 73We accept that a number of experienced practitioners in the Newcastle area are confident in Dr Street's ability to return effectively to practise on terms that reflect the conditions imposed on him by the Medical Council order in 2012. We accept that Dr Street is prepared to submit to those conditions, and his performance in the period before he decided not to retain his registration was one of strict compliance with the conditions. 74Nonetheless we were left in a state of doubt as to a number of matters that we see as material to permitting Dr Street to return to practice. 75We did not have the benefit of an independent current appraisal of Dr Street's state of mental and physical competence from an independent specialist. While Dr Brash's opinion was helpful, it came from a practitioner in a current, treating relationship to Dr Street. We are not satisfied on the material that Dr Street does not continue to be affected in a way that might bear on his competence to practise medicine, and, in particular, psychiatry. In that regard we see value in a functional MRI scan plus a psychometric assessment being obtained from a Council approved specialist psychologist, results to be sent to a Council approved psychiatrist for analysis. 76We are also concerned over the adequacy of Dr Street's present clinical knowledge and awareness of relevant developments in psychiatry. In our view, the evidence points strongly to Dr Street not having engaged in continuing professional development in any organised way since 2002. It is a condition of renewal of registration that CPD requirements be met. We had no clear evidence from Dr Street as to what he has done by way of continuing professional development in the period from 2002 to the present. He referred to going to peer group discussion groups and keeping up to date via internet research. He was not able to point to any other markers, such as membership of professional associations or subscriptions to professional journals. In our view, it is likely that his mental functioning was so adversely affected by his drug addiction, especially in the period 2004-2006, that he was unable to participate in any meaningful way in professional development during those years. In our view there is a significant knowledge gap that needs to be addressed. 77We were also concerned at the number of gaps in his registration history which he had difficulty in explaining. His name was removed from the register for non-payment of fees on 1 October 1981. The evidentiary certificate states that it is uncertain how long he remained unregistered and when he was re-registered in the period to 24 June 2003. There is a significant gap between 2004 and 2006. The evidentiary certificate states that his name was removed from the register on 17 June 2004 due to non-payment of registration fees and he remained unregistered until 7 May 2006. The evidentiary certificate (which covers the period to 30 June 2010) and the AHPRA certificate (which covers the period since 1 July 2010) confirm that he had continuous registration until he surrendered it on 28 February 2013. 78When pressed on this issue at hearing, Dr Street was vague as to whether or not he was in practice during the period of non-registration between 2004 and 2006. He spoke of being so affected by drugs (at one stage he was, on his admission, taking 75 dexamphetamine tablets a day when a normal dose would be five) that he could not assist in answering our question. 79We infer from the totality of Dr Street's evidence in these proceedings that he was in practice in Swansea in the period 2004-2006 for which he held no registration, the period which, according to him, was when he was deeply in the throes of his addiction to dexamphetamines. 80There is a public interest in the rehabilitation of people with special skills who have breached the standards of the regulated occupation or profession to which they belong. But this interest must be balanced against the public interests to which the National Law refers, and to which the Court of Appeal referred in its recent decision in Do. 81In our view, it is too early to consider allowing Dr Street to resume practice. We have referred to a number of matters personal to his case which we consider need to be addressed. 82We acknowledge that over the last two years Dr Street has sought to comply with the requirements imposed on him by the Medical Council. He has adhered to the advice given to him by his treating practitioners, in particular Dr Brash and Dr Lack. He has benefitted from involvement with support groups and the support of Dr Jurd, especially in that regard. He has won the confidence of the Hunter New England Mental Health Service to be employed on a trial basis, a significant achievement. 83However, we have no clear evidence provided to us as to the extent of his compliance with each of the orders made by the Medical Council in 2012. 84We agree with counsel for the Commission that this is a case where the practitioner has not worked for two years, and it can reasonably be concluded from the evidence and material placed before us that he has not worked properly since 2002. Further he has not had any acute care experience for 18 years. 85In response counsel for Dr Street asked us to take account of the following matters: Dr Street's contrition and remorse; the proactive steps he had taken to rehabilitate himself, especially through his regular visits to Dr Brash and Dr Jurd; the expression of confidence in him by the New England Mental Health service; his preparedness to submit to third party assessments, and delay his return to work to meet the concerns raised at hearing by the Tribunal; his voluntary surrender of his registration in February 2012 to enable him to dedicate himself to his rehabilitation; his preparedness to submit to return to work conditions like those imposed in 2012 in relation to continuing professional education; his preparedness to undergo MRI scans and the like; the frankness of his admissions; and the importance to his overall ability to deal with his ADHD issues by having a meaningful and productive life back in the community, and in the practice of his profession. 86A disciplinary order is an instrument of public protection and it should be seen to reflect the scale of the misconduct proven, and, where impairment is proven also respond in an appropriate way to that finding. 87In our view, conduct as egregious as that proven against Dr Street must result in an order for cancellation. 88We invited submissions at hearing on the question of whether we should also proceed to make an order of disqualification. We were advised that the National Law has different streams for re-entry by a deregistered practitioner, depending on whether the primary order is one of cancellation or one of cancellation and disqualification. We were informed that the re-entry stream that follows disqualification is less complex. 89In our view, even if it is the case that disqualification results in such a benefit, we think an order of disqualification should not lightly be made in addition to an order of cancellation of registration. Disqualification, in our view, carries in the public mind greater odium than cancellation. The making of such an order carries a greater reproof of conduct. 90In this instance, we do think that Dr Street's conduct was so grave that such an order should be made. 91A disciplinary order has, as already noted, the object of protection of the community. It also serves as a marker to practitioners as to how similar conduct might be dealt with. An order should also take account of the practical impact on the order on the prospects of effective rehabilitation of the subject of the order, and into that calculus some regard should be given to the subject's age and its implications for the length of the future career of the practitioner. An order should also take account of the extent to which the subject has co-operated with the disciplinary process, and, has, by admissions and acceptance of guilt, contributed to its speedy disposal. 92We note that Dr Street is now 61, and that he took the positive step of withdrawing from practice in February 2013, and has concentrated on rehabilitation in the meantime. This hearing has been made shorter by his admissions. 93As noted earlier in these reasons, the Commission amended its application in the course of the hearing for a period of disqualification from one year to two years. In our view, late notice of a change of recommendation of this kind is not ideal, especially for the respondent. In our view, there was nothing revealed at hearing that made the case any worse than it appeared from the filed material. 94The Tribunal is not limited in its discretion by the application of the applicant for disciplinary orders. Subject to procedural fairness considerations (cf Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705 at [145] ff), it may, if it chooses, impose a more severe or less severe order as it sees fit, having regard to the protective purpose of disciplinary orders. 95In our view, a usual order in a case of this kind would be one of cancellation together with disqualification for a period of at least two years. We have decided to reduce the disqualification period to eighteen months in recognition of the likelihood that any career that Dr Street might be allowed in future will be only one of a few years and in acknowledgement of his co-operation by not challenging the allegations made against him. There is, of course, no right to be reinstated to the register at the end of a disqualification period. Dr Street will have to satisfy the Board that he should be reinstated. 96If he applies for reinstatement on the register, we note that the onus lies on him to prove that he has overcome the difficulties to which we have referred in these reasons. As to his personal health, we would expect him to have available an MRI scan of the kind to which we have referred, a psychometric assessment independently undertaken and reviewed by a practitioner approved by the Council, reports from treating doctors including but not limited to his general practitioner and treating psychiatrist. As to his current professional knowledge, we would expect him to provide evidence of a structured program of continuing professional development indicating broad, up-to-date knowledge of psychiatric practice appropriate to any proposed employment and evidence of continuing abstinence from harmful substances.

Costs 97The Commission has applied for costs. Clause 13 of Schedule D of the National Law provides: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. 98The Commission's submissions compared the new provision with relevant predecessor provisions in NSW (cl 13, sched 5, Psychologists Act 2001, and cl 13, sched 2, Medical Practice Act 1992), and submitted that they were in like terms. The Commission submitted that therefore the observations of the Court of Appeal (Gleeson CJ, Power and Cole JJA) in Ohn v Walton (1995) 36 NSWLR 77 remained applicable. The court in that case held that the usual practice of the courts in exercise of powers cast in the above terms applied to proceedings of the present kind - costs follow the event unless there were particular circumstances that warrant a different exercise of the discretion. 99The Commission's submissions refer in some detail to the function played by orders for costs, their compensatory purpose, and the importance if the discretion is to be exercised against the successful party of not doing so arbitrarily or capriciously. 100Our view is that, in principle, there are no circumstances that might warrant a different exercise of discretion in this case. 101However, we will make an order of a kind that has been used more recently in the health professionals jurisdiction of the Tribunal, with a liberty to apply clause. There was commentary in the Commission's submissions on the form of the costs order, and whether or not there should be any express reference in the terms of the order to costs 'on the ordinary basis as defined in s 3 of the Civil Procedure Act 2005.

Order (1)The Tribunal' s decision pursuant to s 149C(4) of the National Law is that if the respondent were still registered the Tribunal would have cancelled the respondent's registration, and the respondent is disqualified from being registered in the health profession for a period of 18 months. The Tribunal requires the National Board with which the respondent was registered to record the Tribunal's decision in the National Register kept by the Board. (2)The respondent shall pay the applicant's costs, as defined in s 3 of the Civil Procedure Act 2005, of and incidental to the proceedings, as agreed, and failing agreement the parties are granted liberty to apply to the Tribunal.

Appendix IN THE MEDICAL TRIBUNAL OF NEW SOUTH WALES CONSTITUTED UNDER SECTION 165 OF THE HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) No. of IN THE MATTER OF Dr Kim John Street, a person registered under the Health Practitioner Regulation National Law (NSW)

NOTICE OF COMPLAINT TAKE NOTICE THAT the Medical Tribunal of New South Wales has received a complaint from the Health Care Complaints Commission following consultation with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law ("the National Law") THAT Dr Kim John Street of 155 Northcote St, Swansea NSW 2281 ("the practitioner"), being a medical practitioner previously registered under the National Law

COMPLAINT ONE Is guilty of unsatisfactory professional conduct under section 139B of the National Law \r\ that the practitioner has: (1)engaged in conduct that demonstrates that the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and/or (2)engaged in improper or unethical conduct relating to the practice or purported practice of medicine.

PARTICULARS OF COMPLAINT ONE (1)During the period March 2010 to August 2011, the practitioner prescribed a Schedule 8 (S8) drug of addiction, specifically dexamphetamine sulphate 5mg 200 tablets, without the appropriate authority from the NSW Ministry of Health (NSW MH), in breach of section 28 of the Poisons and Therapeutic Goods Act 1996 for 22 patients as follows; Patient A, Patient B, Patient C, Patient D, Patient E, Patient F, Patient G, Patient H, Patient I, Patient K, Patient M, Patient O, Patient Q, Patient Patient R, Patient S, Patient U, Patient V, Patient W, Patient AA, Patient BB, Patient Patient CC, Patient DD listed in Schedule A. (2)During the period March 2010 to August 2011the practitioner prescribed a Schedule 8 (S8) drug of addiction, specifically dexamphetamine sulphate 5mg, 200 tablets without the appropriate authority from NSW MH, in breach of section 28 of the Poisons and Therapeutic Goods Act 1996, for 30 Patients A to DD listed in Schedule A and included a fabricated authority number on prescriptions issued for Patients B to DD. (3)During the period April 2010 to August 2011 the practitioner wrote prescriptions for a S8 drug of addiction, specifically dexamphetamine sulphate 5mg, in the names of patients and on the dates specified in Schedule B. The practitioner diverted the medication dispensed under the prescriptions specified in Schedule B for his own use. (4)The practitioner presented the prescriptions specified in Schedule B to pharmacists for dispensing, and in doing so, made false representations to the pharmacists to obtain the medication, contrary to the provisions of s17 Drug Misuse and Trafficking Act 1985. (5)The practitioner took possession of the medication on the occasions specified in Schedule B otherwise than in the lawful conduct of the practise of medicine, contrary to the provisions of s10 of the Drug Misuse and Trafficking Act 1985. (6)The practitioner self administered the medication specified in Schedule B, in contrary to the provisions of s12 of the Drug Misuse and Trafficking Act 1985. (7)The practitioner made or caused to be made false entries in the patients' medical records recording the prescriptions specified in Schedule B. (8)When questioned by officers of the Pharmaceutical Services Unit of the Department of Health on 19 October 2011 about his practice of presenting prescriptions for dexamphetamine and collecting the medications, the practitioner falsely denied that he was diverting the medications for his own use. (9)The practitioner treated or trialled treatment of the patients listed in Schedule C with dexamphetamine sulphate when the medication was contraindicated for the reasons indicated in Schedule C. (10)The practitioner treated the patients listed in Schedule D with dexamphetamine sulphate when treatment with that medication: (a)was outside accepted clinical standards for the treatment of the condition or conditions the patients were suffering from, (b)was experimental in nature, (c)the patients were not informed that treatment with the medication for their condition/s was outside accepted clinical standards and experimental in nature. (11)The practitioner diagnosed or provisionally diagnosed Patients C, F, L, S, U and AA as suffering from Attention Deficit Hyperactivity Disorder (ADHD) without a proper or sufficient clinical basis. (12)Between August 2010 and October 2011 the practitioner treated his de facto partner, Patient N, with psycho active medications. (13)Between July 2010 and September 2011 the practitioner prescribed Patient DD testosterone without proper and clinical indications for doing so and in circumstances where the practitioner knew or ought to have known that the patient may have been abusing the medications.

COMPLAINT TWO Is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened Health Practitioner Regulation (New South Wales) Regulation 2010 Part 4 clause 7 and Schedule 2.

PARTICULARS OF COMPLAINT TWO (1)The practitioner's medical records with respect to the patients listed in Schedule A were inadequate in that he failed to adequately record: (a)the patient's medical history; (b)details of any examination of the patient's mental state; (c)progress of the patient at each visit; and (d)the diagnoses of the practitioner (e)particulars of any clinical opinion reached by the practitioner; (f)particulars of advice/information given to the patient; and (g)plans of treatment for the patient. (2)The practitioner failed to keep medical records containing adequate information that would enable another medical practitioner to carry on the management of those patients.

COMPLAINT THREE Is guilty of professional misconduct under section 139BE of the National Law in that the practitioner has: (1)engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration and/or (2)engaged in 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 suspension or cancellation of the practitioner's registration

PARTICULARS OF COMPLAINT THREE (1)The Particulars for Complaints One and Two above are relied upon and repeated, both individually and cumulatively.

PARTICULARS OF COMPLAINT FOUR (1)The practitioner has a physical and/or mental impairment, condition or disorder that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession namely; (a)Abuse of, and addiction, to psycho-stimulants between about 2002 and October 2011 characterised by daily use of high dosages without medical supervision and whilst the practitioner was in active clinical practice as a psychiatrist in Sydney and Swansea, NSW. (b)Abuse of anaesthetic agents and opioids, including Omnopon, obtained from hospital supplies for about six months during 1981 whilst the practitioner was in active clinical practice as an anaesthetic registrar in Darwin, NT. Dated 2013 As Amended 23.09.14 Karen Mobbs Director of Proceedings, Health Care Complaints Commission The Medical Tribunal will at 9.30 am on 2013 in Court 3.1 Downing Centre, 143 - 147 Liverpool Street, Sydney , sit for the purpose of a directions hearing and to attend to any other matters relevant to the hearing. AND FURTHER TAKE NOTICE that you may appear in person or by your solicitor or counsel. The Hon Justice RO Blanch Chairperson Medical Tribunal of New South Wales Constituted under section 165 of the Health Practitioner Regulation National Law (NSW) Medical Tribunal Registry Level 9 John Maddison Tower 86-90 Goulburn Street SYDNEY NSW 2000 Telephone:(02) 9377 5742 To: Dr Kim John Street ..... SWANSEA NSW 2281 Cc: Karen Mobbs Director of Proceedings Health Care Complaints Commission Level 13, 323 Castlereagh Street SYDNEY NSW 2000

Schedule A to the Complaint of the Health Care Complaints Commission concerning Dr Kim STREET REFERENCE IN COMPLAINT IDENTITY OF PATIENT Patient A Patient B Patient C Patient D Patient E Patient F Patient G Patient H Patient 1 Patient J Patient K Patient L Patient M Patient N Patient 0 Patient P Patient Q Patient R Patient S Patient T Patient U Patient Patient W Patient X REFERENCE IN COMPLAINT IDENTITY OF PATIENT Patient Y Patient Z Patient AA Patient BB Patient CC Patient DD

Schedule B to the Complaint of the Health Care Complaints Commission concerning Dr Kim STREET PATIENT REFERENCE IN COMPLAINT DATES OF DIVERTED PRESCRIPTIONS Patient B - 18/10/2010 Patient D - 08/05/2010-20/08/2011 Patient F - 28/07/2011 and 24/08/2011 Patient 1 - 16/07/2010 and 06/10/2010 Patient J - 18/05/2011 Patient L - 03/08/2011 Patient N - 04/09/2010-02/08/2011 Patient P - 30/04/2010 and 29/10/2010 Patient Q - 03/06/2011 Patient T - 06/08/2010 and 16/11/2010 Patient W - 15/06/2010-21/04/2010 Patient X - 12/11/2010 and 02/02/2011 Patient Y - 12/05/2011 Patient Z - 07/06/2010 and 22/04/2011 Patient AA - 19/08/2010-07/06/2011 Patient DD - 01/06/2010 and 18/07/2011

Schedule C to the Complaint of the Health Care Complaints Commission \ concerning Dr Kim STREET Patient - Contraindication/s Patient A - Alcohol abuse Patient B - Alcohol abuse Patient C - Patient on opiod treatment programme, heavy alcohol intake Patient D - History of alcohol and drug abuse including amphetamines and marijuahana, patient regnant Patient E - Alcohol abuse Patient F - Elderly patient with cardiovascular disease Patient G - Patient suffered from anxiety related insomnia, patient on multiple other medications including other drugs of addiction Patient H - Patient pregnant Patient 1 - Patient diagnosed with schizophrenia Patient J - Alcohol abuse Patient K - Patient had a brain injury and was a substance abuser Patient AA - Patient experienced side effects and was abusing medications and alcohol Patient BB - Patient had a history of psychosis and of non compliance with medication and erratic criminal behaviour Patient CC - Patient had a history of behavioural problems including gambling addiction and sex addiction.

Schedule D to the Complaint of the Health Care Complaints Commission concerning Dr Kim STREET Patient - Condition/s Patient A - For PTSD Patient C - For PTSD Patient D - Major depression, PTSD Patient E - Major depression, PTSD Patient H - Major depression, PTSD, social phobia Patient J - Major depression, PTSD Patient L - PTSD Patient M - Major depression, PTSD Patient 0 - Major depression, Patient P - Major depression, prior diagnosis with bi polar disorder, PTSD Patient Q - PTSD Patient R - PTSD Patient U. - Major depression, PTSD Patient W - Major depression, PTSD Patient Z - Bi Polar Disorder, Depression, Anxiety Patient AA - Major depression, PTSD Patient BB - Major depression, PTSD

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 18 December 2014 - typographical error Amended paragraphs: Order 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: 18 December 2014