Health Care Complaints Commission v Townsend - [2016] NSWCATOD 118 - NSWCATOD 2016 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Townsend

[2016] NSWCATOD 118

NCAT Occupational|2016-04-12

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2016-04-12

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Solicitors: Health Care Complaints Commission (Applicant) Alexander Townsend (Respondent in person) File Number(s): 1520189

[2]

REASONS FOR DECISION

Former registered nurse, Alexander Townsend, was prescribed the drug, Lomotil® as a teenager to treat chronic irritable bowel syndrome. By the time he turned 18 he had developed a dependence on, and was consuming excessive quantities of Lomotil. Lomotil contains the narcotic diphenoxylate. If taken at higher than therapeutic doses, Lomotil causes the user to experience morphine-like effects.
In April 2011, two months after commencing full-time employment as a registered nurse at St George Public Hospital, Mr Townsend's employment was suspended after the Hospital discovered he had mistakenly given a patient the drug Hydromorphone, and not Morphine, as prescribed and furthermore, in an effort to conceal that error, he had forged a prescription for Morphine.
On 7 June 2011, five days after returning to work following that suspension, Mr Townsend was found unconscious while on night duty after injecting Propofol intravenously, which he had taken from a Hospital drug safe. (Propofol slows the activity of the brain and is commonly used during general anaesthesia for surgery.) He has not worked as a nurse since this incident.
The Health Care Complaints Commission (the Commission) referred complaints about these two incidents to the Nursing and Midwifery Tribunal (the NMT) for determination. At hearing, Mr Townsend admitted that his conduct on 9 April 2011 and 7 June 2011 amounted to unsatisfactory professional conduct and professional misconduct. In addition, he admitted to having a substance use disorder (Lomotil) together with anxiety and depression. +In a decision made in March 2013, the NMT found Mr Townsend guilty of "unsatisfactory professional conduct" and "professional misconduct" in respect of these incidents (ss 139B and 139E of the Health Practitioner Regulation National Law (NSW) (National Law)). However, the NMT declined to find as alleged by the Commission that Mr Townsend was "not competent to practice" within the meaning of s 139 of the National Law. The Tribunal decided not to cancel Mr Townsend's registration, but rather to impose a number of conditions on his registration including that he not self-administer any Schedule 4 drug, that he notify the Council if prescribed or directed to take, among other things, Lomotil, that he submit to random urine drug testing and that he provide the Nursing and Midwifery Council of NSW (the Council) with details of his treating practitioners (HCCC v Townsend [2013] NSWNMT 3).

[4]

History of substance abuse

To put the Complaints in context it is necessary to outline Mr Townsend's history of drug abuse. The following summary is largely taken from the reasons for decisions given by the NMT in March 2013 and the Council in March 2014.
By the time he entered university in 2007, Mr Townsend recognised he had a problem with Lomotil and sought treatment. Despite his significant efforts, including participating in a two week detoxification program run by the St George Public Hospital Drug and Alcohol Centre in early 2010, and again in April 2010, Mr Townsend was continuing to misuse Lomotil when he commenced work as a registered nurse in early 2011.
Following the Propofol incident in June 2011, Mr Townsend was admitted to Wesley Hospital and underwent a three-week drug treatment program. In August 2011 he was referred to psychiatrist Dr Keith Mayne for treatment of his longstanding anxiety and depression. He remained under the regular care of Dr Mayne for about six months, and since then on an occasional basis. The weight of medical opinion is that Mr Townsend's anxiety and depression is now treated and controlled.
In March 2011, at about the time he commenced as a registered nurse at St George Hospital, Mr Townsend came under the care of addiction specialist, Dr Gary Swift. Dr Swift is a clinician at Clinic 36, a private clinic specialising in addiction disorders. Dr Swift commenced Mr Townsend on a course of Buprenorphine, a drug used to treat opiate addiction. In May 2011, Dr Swift prescribed Suboxone, a tablet form of Buprenorphine, which Mr Townsend continued to take until a relapse in May 2013, when he was again prescribed Buprenorphine.
In August 2014, following another significant relapse, Mr Townsend returned to see Dr Swift and was again placed on Suboxone. He continued to attend the Clinic until weaned off Suboxone in September 2015. In a report dated 3 March 2015, Dr Swift wrote that since his relapse in August 2014, Mr Townsend has consulted him for monthly reviews. Dr Swift described Mr Townsend's attendance throughout that period as "exemplary". He noted all tests conducted between August 2014 and September 2015 have been "clean" apart from one conducted on 17 December 2014, which returned a positive result for opiates.
Mr Townsend reported to psychiatrist, Professor John Saunders, in December 2011 that initially he was taking, on average, three Lomotil tablets per day and by 2009/2010 was taking up to 60 tablets per day. In these proceedings he stated that at the high point of his addiction, which he identified as being mid-2013 to August 2014, he was taking an average of 60 Lomotil tablets per day.

[12]

Did as alleged Mr Townsend self-administer pethidine in May 2014?

Particular 1(a) of Complaint 1 alleges that on one or more occasion in May 2014, in breach of Conditions 1 and 7, Mr Townsend "possessed, handled or self-administered, pethidine or an analogue of pethidine". Mr Townsend strenuously denies this allegation. The Commission bears the burden of proving this allegation on the balance of probabilities.
Condition 1 required Mr Townsend not to self-administer any substance listed in Schedule 8 of the NSW Poisons List and Schedule 1 to the Drug Misuse and Trafficking Act 1985 (NSW). Pethidine is listed in Schedule 8 of the NSW Poisons List and Schedule 1 to the Drug Misuse and Trafficking Act 1985 (NSW).
Condition 7 required that, Mr Townsend not "possess or handle" any "Schedule 8 drug" for a period of 12 months from the date of the Tribunal's order (27 March 2013), or such further period as the Council specifies. As the sample on which the Commission relies was taken 14 months after the Tribunal's order and the Council did not extend the period Mr Townsend was required to comply with Condition 7, had he "possessed or handled" pethidine (which is denied), Mr Townsend would not be in breach of Condition 7. Ultimately, the issue is moot as Particular 1(a) is expressed in the alternative "possessed, handled or self-administered pethidine".
The impugned sample was submitted by Mr Townsend in compliance with the Condition that he submit to random urine drug testing. Pacific Laboratory Medicine Services (PaLMS), a unit within NSW Health, reported that on testing of the sample, norpethidine was detected. Norpethidine is a metabolite of pethidine. Lomotil contains diphenoxylate; diphenoxylate is chemically related to pethidine.
Samples provided by Mr Townsend to PaLMS on 19 June 2013 and 3 December 2014 also tested positive for norpethidine.
Mr Townsend has consistently denied taking pethidine on 28 May 2014, or at any other time. He argues that PaLMS failed as he had requested and was required by APHRA's testing guidelines to undertake a further test of the sample. He submits that the most probable explanation for the detection of norpethidine in the submitted urine sample is that it was:

a false positive for Lomotil, or
the result of the abnormal metabolism of diphenoxylate.

The Commission rejects each of these hypotheses and relies on the opinion of Dr Santiago Vasquez.

[13]

Mr Townsend's response to test results

A report dated 5 June 2014 prepared by PaLMS, stated that a urine sample submitted by Mr Townsend was tested in accordance with Australian Standard AZ/NZS 4308 and pethidine was detected.
On 24 June 2014, Mr Townsend contacted the Council and advised that he intended to request PaLMS to retest the sample as there was "no way" he had taken anything that would produce a positive result. The following day he wrote to the Council and advised that he was waiting for PaLMS to respond to his questions about the validity of the test results for the 28 May sample. He asserted that the result was "false". He wrote that he had requested PaLMS to retest "the second sample" and also asked for information about whether his current medications - Venlafaxine, Telmisartan and Propranolol - may have interfered with the testing procedure.
In a file note made on 9 July 2014, Council employee, Louise Hardy, wrote that she had spoken with Mr Stathopolous, the PaLMS technician who had analysed the 28 May sample, about Mr Townsend's request that "the positive pethidine result" be retested. Ms Hardy wrote that Mr Stathopolous said that Mr Townsend disclosed to him he had consumed diphenoxylate. (This was the first occasion the Council learnt of Mr Townsend admitting to Lomotil re-use.) She wrote that Mr Stathopolous agreed that PaLMS would try and devise a test for diphenoxylate and ascertain whether it could produce a positive result for pethidine/norpethidine. She recorded that Mr Stathopolous was "sceptical as diphenoxylate is mostly excreted from the body".
There is no evidence that PaLMS undertook the retesting requested by Mr Townsend.
In an undated letter to the Commission, Mr Townsend wrote that despite being told by Mr Stathopolous that his concerns about the accuracy of the test results would be looked into, it was not until 4 September 2014 that he received any further information from PaLMS. Mr Townsend wrote that PaLMS technician, Peter Bowron, told him that, while in his opinion diphenoxylate was unlikely to have been the cause of the positive result, he nonetheless:

Acknowledged that there was a lack of knowledge about diphenoxylate, including how its action and metabolism differ when "the drug" [Lomotil] is abused.
Could not rule out the possibility that due to these difficulties and abnormal individual metabolism diphenoxylate could have caused the result.

[15]

Failure to conduct an additional test

In support of the proposition that the testing of the impugned sample was unreliable because a further test was not conducted, Mr Townsend relies on an undated document published by Australian Health Practitioner Regulation Agency (APHRA), "Urine drug screening: Information and requirement for health practitioners and students".
The document states: Positive drug screening results The Australian Standard specifies that, when a UDS result indicates the presence of one or more drugs or substances in the sample, further confirmatory testing is required. This confirmatory testing is conducted using Gas Chromatography - Mass Spectrometry (GC-MS). A UDS that detects the presence of drugs or substances covered by the Australian Standard is not considered to be a positive test result until the confirmatory testing is complete. The registrant is required to authorise the confirmatory testing of the sample, and is responsible for the cost incurred. …
In addition, Mr Townsend relies on a report prepared by Professor Olaf Drummer of the Victorian Institute of Forensic Medicine, Testing for Impairing Substances in Health Care Professionals, March 2014. Prepared on behalf of APHRA the report focuses on methods of testing types for impairing substances. Under the heading, "Confirmation procedures" Professor Drummer stated: Any positive result obtained from a screening test must be confirmed by a confirmatory test using mass spectrometry (MS). Any result relying simply on a screening result can lead to a false presumption of drug use, since not all screen results will be confirmed. Where an immunoassay positive response is obtained it will be necessary to identify which drug within a drug class is present, if any. In all situations a confirmation test must be based on one form of MS. Gas Chromatography is listed as an example of a "confirmation technique".
In addition, Mr Townsend relies on the paper written by Lewis J, Shimmon R and Fu S, Pethidinic acid: corroboration of a doctor's denial of pethidine re-use, in the Journal of Analytical Toxicology, April 2013. In the paper the authors examine the case of a doctor, who had previously admitted to using pethidine and was subject to on-going drug testing. A laboratory reported the presence of pethidine in the doctor's urine; the doctor denied re-use. Further investigation was considered necessary because the major metabolite of pethidine, pethidinic acid was not present in the tested sample. Testing of urine samples from a patient given pethidine for pain, revealed pethidinic acid. The authors concluded that the absence of pethidinic acid in the sample provided by the doctor appeared to corroborate his denial of re-use.

[16]

Opinion of Dr Vasquez

At the request of the Commission, Dr Vasquez prepared a report dated 31 March 2016, about the testing of the impugned sample. In addition Dr Vasquez gave oral evidence. Dr Vasquez is the manager of the drug toxicology unit of NSW Health (formerly PaLMS), and Mr Stathopoulos' supervisor. Dr Vasquez holds a doctorate in analytical chemistry and has significant experience in the field of drug analysis/drug metabolism, both in Australia and the US.
This was the first time that Dr Vasquez had been asked to undertake urine testing on diphenoxylate. Previous to this he had not been aware of the addictive potential of Lomotil.
Dr Vasquez wrote that as requested by the Commission he conducted a test to determine whether diphenoxylate could break down during analysis to generate pethidine and/or norpethidine. He explained that to conduct this test he sourced pure diphenoxylate and subjected it to the same analysis technique used in the analysis of Mr Townsend's 28 May sample. He wrote that in that test diphenoxylate was "easily distinguishable" from pethidine and /or norpethidine and that neither was created as an artefact during the analysis.
Dr Vasquez explained that when measured in the gas chronometer the norpethidine/pethidine and diphenoxylate peaks "are quite well separated" in time and that "these peaks are very predictable and always come out at the same time". The norpethidine/pethidine peaks are seen at three minutes whereas the diphenoxylate peaks are seen at 10 minutes.
Dr Vasquez explained he proceeded to examine the way pethidine and diphenoxylate were metabolized. Dr Vasquez explained that the purpose of metabolism was to remove the substance from the body by making it more water soluble for excretion by the kidney. He concluded that while there is some structural similarity between diphenoxylate and pethidine, when consumed in the human body they do not share any common "end products".
He stated that while there was some similarity between the structure of the two drugs, pethidine was a small molecule, whereas diphenoxylate was a large molecule. In looking at these molecular structures, Dr Vasquez considered that the diphenoxylate structure did not indicate that its metabolism could be the same as pethidine.
Mr Townsend questioned Dr Vasquez about the statement attributed PaLMS chemist, Mr Bowron, that individual abnormal metabolism may have caused the positive norpethidine result for the disputed sample. Dr Vasquez replied that he had not spoken to Mr Bowron about this matter as he was no longer working at NSW Health.
Dr Vasquez stated that abnormal metabolism occurs when a substance is poorly metabolised or when metabolism favoured one form over another. According to Dr Vasquez, Mr Townsend's concurrent drug intake could only change the rate of metabolism but not how other drugs were metabolised. In other words, the concurrent intake of other drugs could not create new metabolites of diphenoxylate. Dr Vasquez conceded, however, that how a person with abnormal metabolism would excrete a particular substance is not an area of his expertise.
Dr Vasquez reported that when undertaking drug testing, the drug's metabolites are often examined. Where a test was not available for all of the tested drug's metabolites, the testing laboratory makes "a call on the most common metabolite". As pethidine is difficult to detect, the presence of its metabolite norpethidine, is accepted as a positive test for pethidine ingestion. Thus, according to Dr Vasquez if norpethidine is detected "you can be assured that the person took pethidine" and it is "unlikely', that the norpethidine could have come from diphenoxylate. Dr Vasquez said he was 99.9% certain of this likelihood based on scientific knowledge and on reference material.
According to Dr Vasquez if the norpethidine revealed on testing the disputed sample resulted from Mr Townsend's diphenoxylate ingestion, then he would have expected this metabolite to be present in the urine every time diphenoxylate was ingested and therefore detected in any urinary drug analysis.
In response to the article cited by Mr Townsend, Lomotil Addiction, which stated that Lomotil could "show up as a false positive for Demerol" (pethidine), Dr Vasquez pointed to the lack of any scientific reference for this proposition. He stated that he was unable to find any reference to "false positives" for Lomotil use in a search of the scientific literature. Hence his opinion remained unchanged.
In response to the article, Pethidinic acid: corroboration of a doctor's denial of pethidine re-use addition, Dr Vasquez stated that it did not cause him to change his opinion. He pointed out that neither the authors nor the original laboratory had tested for norpethidine.
When asked by Mr Townsend about the reason for the delay in providing him a definitive answer to his request that testing be conducted to determine whether Lomotil could give a false positive for pethidine, Dr Vasquez replied that there had been some "management issues" and it had only been brought to his direct attention in the past three months. He stated that NSW Health was unable to re-test Mr Townsend's urine as both samples had been discarded.

[17]

Conclusion

The weight of evidence suggests that it is improbable that the positive test returned for the sample of Mr Townsend's urine taken on 28 May 2014 was because on testing diphenoxylate delivered a false positive reading for pethidine. A drug analysis report certifying that a sample has been tested according to the relevant Australian Standards is prima facie evidence that the testing was conducted in accordance with proper scientific methods and is probably reliable. The Standard requires that the sample be subjected to a confirmatory test. This is not an absolute guarantee but a rebuttable presumption of reliable results.
Dr Vasquez's evidence that he subjected a sample of diphenoxylate to testing by Gas Chromatography and found it to be readily distinguishable from norpethedine, and that he would have expected the supposed "false positive" to emerge on all occasions that diphenoxylate was found in a sample, was compelling.
Although the ultimate onus lies on the Commission, Mr Townsend was unable to establish as claimed that the positive test for pethidine was not reliable evidence that he had administered pethidine. His strongest argument was that if he was admitting to Lomotil addiction, and it contained an opiate, he should be believed when he denied taking pethidine. He raises the rhetorical question, "Why would I lie about that?". That is a question we cannot answer and, indeed, about which we could only speculate.
In our view, the evidence that he relies on to raise doubt about the reliability of the drug analysis report is in itself unreliable. Against the evidence of the drug analysis report was Mr Townsend's evidence that he had never self-administered pethidine and two articles he had found on the internet. The issue in relation to which this material was tendered, was the question of whether there was a material possibility that the drug analysis which had revealed pethidine in Mr Townsend's sample was flawed due to a false positive reading being produced due Lomotil containing diphenoxylate.
Unless those documents could assist the Tribunal in resolving that issue they had no relevance. Although this Tribunal is not bound by the rules of evidence, the principles underlying the admissibility of expert opinion evidence are, nonetheless, highly cogent and pertinent to our consideration of the articles on which Mr Townsend relies.
In proceedings in which the Evidence Act 1995 (NSW) applies, expert opinion evidence will be admissible only if a proper basis for it is established thereby enabling the trier of fact to appreciate how the evidence is relevant so that it can be adequately tested. With respect to the article on the website Drug Addiction Treatment (http://www.drugaddictiontreatment.com), in particular the opinion that Lomotil "can show up as a false positive for Demerol, depending on how much you took", Mr Townsend was unable to provide evidence of the facts and assumed facts on which the opinion was based, let alone the qualifications of the authors of the opinions.
That article does not identify the author(s) and does not reveal the qualifications of the author(s) to make the claim. It does not enable this Tribunal to understand whether it was based on original research conducted by the author(s) or on third party evidence. It does not reveal when or where or how the evidence supporting the claim was developed. It does not identify the facts and assumed facts on which the claim was based. More specifically, it does not reveal the actual testing process or the scientific results of those tests, including cross-checking, that, presumably, support the claim. Finally, the article does not address or engage with the unambiguous and precise evidence produced by Dr Vasquez in relation to his gas chromatography testing. For all these reasons, we cannot accept the article as reliable scientific evidence.
As well as the positive evidence provided in the drug analysis certificate and by Dr Vasquez, there is the striking coincidence of Mr Townsend testing positive for pethidine on two other occasions. That evidence alone would undermine Mr Townsend's testimony that he has never used pethidine. If he did not knowingly self-administer pethidine, this coincidence of apparently ingesting it accidentally would be very unfortunate. In our view, however, it is unlikely to be coincidence.
It is unfortunate that the second sample was not able to be tested as both samples had been discarded by the time these proceedings were on foot. Nevertheless, there is a preponderance of acceptable evidence that supports the Commission's contention that Mr Townsend ingested pethidine. Once it had adduced that evidence, Mr Townsend needed to produce scientifically reputable and reliable evidence that supported his claim (and that made in the Drug Addiction Treatment website article) if he were to successfully argue that the Commission had not proven the allegation on the balance of probabilities. He failed to do so.
We find Complaint 1, Particular 1(a) proven.

[18]

Does some or all of the conduct particularised in Complaint 1 amount to "unsatisfactory professional conduct"?

The Commission contends that the conduct particularised in Complaint 1 constitutes "unsatisfactory professional conduct" within the meaning of ss 139B(1)(c) and 139(1)(d) of the National Law: 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- … (c) A contravention by the practitioner (whether by act or omission) of- (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. (d) A contravention by the practitioner (whether by act or omission) of a decision or order made by a Committee or the Tribunal in relation to the practitioner.
Each of the acts particularised in Complaint 1 amount to a contravention of a condition of Mr Townsend's registration. It follows that each act amounts to unsatisfactory professional conduct within the meaning of s 139B(1)( c) of the National Law.
In Health Care Complaints Commission v Perceval [2014] NSWCATOD 38 at [115] - [123] the Tribunal examined whether there was a distinction between a contravention of "a condition to which the practitioner's registration is subject" (s 139B(c)(i)) and "an order made by the Tribunal" (s 139B(d)), each of which constitutes unsatisfactory professional conduct. The Tribunal tentatively concluded that depending how the order is formulated, a condition on the practitioner's registration might not also amount to an order made by the Tribunal
Given our finding that each of the acts particularised in Complaint 1 amounts to a contravention of a condition of Mr Townsend's registration and thus unsatisfactory professional conduct within the meaning of s 139B(1)( c) of the National Law, and given that neither party addressed the condition/order distinction raised in Perceval, we have decided it is unnecessary to consider whether Mr Townsend's conduct also constitutes unsatisfactory professional conduct within the meaning of s 139(1)(d) of the National Law.

[20]

Is the conduct of a sufficiently serious nature to justify suspension or cancellation of Mr Townsend's registration?

In evaluating whether the conduct found to constitute unsatisfactory professional conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, the existence of any mitigating factors and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases, but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638.
All of the conduct particularised in Complaint 1 relates to the contravention of imposed by the NMT on Mr Townsend's registration. The authorities have emphasised the need for health practitioners to scrupulously adhere to any conditions imposed. In Prakash v HCCC [2006] NSWCA 153, the Court of Appeal (at [74]) approved the comments of the Medical Tribunal in Re Dr Tan Than Le (Medical Tribunal decision, 20 September 2001 at 46, para 95): When conditions are imposed, as they were here, for restoration to practice, those conditions must be scrupulously observed. It is even more serious when dishonesty supervenes ...
Almost immediately after the Council lifted the suspension of Mr Townsend registration, Mr Townsend commenced to breach the Conditions. Over the ensuing 17 weeks until his registration was again suspended, Mr Townsend continued in what by then had become a pattern of "doctor shopping" designed to enable him to consume non-therapeutic amounts of Lomotil. Throughout this period he repeatedly failed as required to notify the Council that he was being prescribed Lomotil. In addition, he failed to notify the Council of the names of 13 of the 15 treating practitioners he consulted during this period and to inform them that he was subject to the Conditions. Further, he failed to comply with the requirement to "strictly comply" with the Council's drug testing protocol.
The genesis of this conduct was a serious and debilitating substance use disorder. Nonetheless, this does not detract from its objective seriousness. This was not a minor or technical transgression but a repeated, deliberate and calculated contravention of the Conditions.
The conduct which is the subject of Complaint 1, Particular 1(b) - consuming cannabis on two occasions, once inadvertently - while serious, in our opinion is not of a sufficiently serious nature to justify suspension or cancellation, even when coupled with the balance of the conduct particularised in Complaint 1, Particular 1. In our opinion, the balance of conduct the subject of Complaint 1, taken together is of a sufficiently serious nature to justify suspension or cancellation.
We are satisfied that the conduct particularised in Complaint 1, except for Particular 1(b), constitutes professional misconduct within the meaning of s 139E(b) of the National Law.

[22]

Does Mr Townsend's substance use disorder detrimentally affect or is it likely to detrimentally affect his capacity to practise the profession of nursing?

There is no argument that taking Lomotil in amounts significantly exceeding the recommended dose, would or is likely to detrimentally affect Mr Townsend's ability to practice nursing. In these proceedings, Mr Townsend described the effect of taking eight Lomotil tablets per day as akin to "mild intoxication" and of taking 40 tablets as having the same but "more intense" effect.
In Dr Swift's opinion, Mr Townsend's work function would be "markedly impaired" if he were to misuse Lomotil.
Whether Mr Townsend's substance use disorder detrimentally affects, or is likely to detrimentally affect his capacity to practise the profession of nursing turns largely on whether as Mr Townsend claims, he is no longer using Lomotil and there is no real and material risk of relapse.
Mr Townsend has a long history of struggling with Lomotil misuse. For close to a decade he has made numerous unsuccessful attempts to abstain from Lomotil. For extended periods he has taken more than 60 tablets per day.
To his great disappointment, within weeks of ending treatment in August 2015, Mr Townsend was again using small quantities of Lomotil. He returned to the care of Dr Swift, and on his account apart from a single dose taken on 17 December 2015, he has not taken Lomotil. According to Mr Townsend, this has been his longest period of sustained abstinence from Lomotil.
In these proceedings, Mr Townsend stated that he is confident he will not return to Lomotil use. He claims now to be in excellent health: "The best I've been for years". In his opinion his anxiety/depression, which he recognises as being a contributing factor to his addiction, is now well controlled by a combination of medication, diet and exercise. That self-assessment is consistent with the opinion of Dr Mayne who saw Mr Townsend in February of this year. (See report prepared by Dr Mayne, 1 February 2016). Mr Townsend stated that notwithstanding his self-assessment that his anxiety/depression is now appropriately managed by his GP, on the basis of the recommendation made by Dr Swift in these proceedings, he has resolved to return to see Dr Mayne and resume psychotherapy counselling for his addiction.
Mr Townsend believes he is more mature and has greater insight into his condition then he did when he came before the NMT in 2013. He pointed out that he also enjoys the benefit of a supportive partner and family.
In evidence given in these proceedings, Dr Swift stated that while Mr Townsend has made solid progress in battling his addiction, given his history of chronic relapse he could not be confident that Mr Townsend would not relapse. In oral evidence, he stated that in his opinion Mr Townsend "was not currently in remission". He explained that in the field of addiction medicine the term "remission" was taken to mean "cessation of treatment". The day after giving evidence, Dr Swift wrote to the Tribunal to clarify this part of his evidence. He wrote that he had been confused and had meant to say that Mr Townsend was in "early remission" and the usual definition of remission was the "cessation of drug use". The Commission did not object to the Tribunal having regard to this new evidence.

[23]

Conclusion

To find Complaint 3 proven, we must be satisfied that Mr Townsend suffers a present impairment (see Tung v Health Care Complaints Commission [2011] NSWCA 219 at [58], [60]). Whether Mr Townsend has a present impairment, turns largely on whether his claim of abstinence can be accepted and there is no real and material risk of relapse.
A difficulty posed in this matter is the absence of any reliable objective test to verify the truth or otherwise of Mr Townsend's claim that since September 2015, he has largely abstained from Lomotil use. In the past, he has given untruthful evidence to disciplinary bodies about his drug use. For example, in March 2014 he told an Impaired Registrant Panel that he had not taken Lomotil since June 2013. He now admits that he had consistently consumed high levels of the drug throughout this period (see Reasons for Decision, 14/3/14 at [89])). This does not mean his claim of abstinence cannot be accepted but rather that a cautious approach must be taken in accepting that claim.
Mr Townsend's claim that he has abstained from Lomotil use largely since September 2015, and completely since 17 December 2015 is unsupported. Nonetheless, there is no evidence, such as Medicare records or other evidence that would be reasonably available to the Commission, to contradict that claim. The Commission did not challenge Mr Townsend's evidence on this point. We find that the available material supports a finding that Mr Townsend has not consumed Lomotil since December 2015.
Assessing whether an individual with a long history of a substance use disorder is likely to relapse, is not an easy task. That assessment is informed by the nature and history of the disorder, the evidence of rehabilitation, both demonstrated and prospective, the evidence of any factor, such as a co-morbid psychiatric condition which might pre-dispose the individual to relapse, the existence of any protective factors, such as family support and any expert opinion. The assessment, however, is inevitably impressionistic.
The evidence reveals that Mr Townsend has made genuine efforts to tackle his substance use disorder. He has actively sought treatment, participated in intensive detoxication programs and over an extended period attended a reputable specialist addiction clinic. His long-standing conditions of anxiety and depression, which appear to have contributed to his substance use disorder, are now appropriately managed and stable.
Weighing against these positive signs is Mr Townsend's history of repeated relapse and the relatively short period he has managed to remain drug-free. While it is possible that Mr Townsend will be successful in continuing to abstain from Lomotil use, we are of the opinion that at least in this early stage of remission he continues to suffer from a condition which is likely to detrimentally affect his capacity to practice.
We find Complaint 3 proven.

[24]

What, if any, disciplinary orders should be made?

Headed "Disciplinary Powers of Tribunals", Part 8, Division 3, Sub Division 6 of the National Law sets out the disciplinary powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and to impose conditions on the practitioner's registration. Where, as in this case, the practitioner is found guilty of professional misconduct, the Tribunal may suspend or cancel the practitioner's registration.
In exercising its functions under the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration (s 3A of the National Law).
In Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD Wright J 31 at [88] summarised the principles underlying the purpose of orders made under Part 8, Division 3, Sub Division 6: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].

[25]

Orders sought by the Commission

The Commission urges the Tribunal to cancel Mr Townsend's registration, to order that he not apply for re-registration for a period of at least two years and to issue a reprimand in respect of the conduct found to constitute professional misconduct. While conceding that Mr Townsend has made significant gains in tackling his substance use disorder, it submits that given Mr Townsend's history of breaching conditions on his registration together with the lack of a reliable test to detect Lomotil consumption, the imposition of conditions, however onerous, would be insufficient to ensure the protection of the public.
Mr Townsend on the other hand urges the Tribunal to impose conditions rather than cancel or suspend his registration. He stated that he is prepared to submit to the conditions imposed by the NMT, and any additional conditions considered appropriate by the Tribunal. In addition to those outlined above, the Conditions contain strict supervision, mentoring and reporting requirements, which would come into effect if Mr Townsend were to return to work.
The power to suspend or cancel a registered health practitioner's registration can only be exercised if the Tribunal is satisfied that the practitioner is not competent to practise the practitioner's profession; is guilty of professional misconduct; has been convicted of, or made the subject of, a criminal finding for an offence, or is not a suitable person for registration in the practitioner's profession: s 148C(1) of the National Law. As the Complaint does not allege that Mr Townsend was "not competent to practice" or "not a suitable person for registration", the only basis on which the power to cancel or continue the suspension of Mr Townsend's registration can be exercised, is professional misconduct. Nonetheless, the impairment finding, may be relevant to whether it is appropriate to exercise the power to suspend or cancel his registration.
Notwithstanding our finding that Mr Townsend's repeated contravention of the Conditions was sufficiently serious to justify suspension or cancellation, it does not follow that such an order must be made. (See, HCCC v Jamieson [2014] NSWCATOD 56 at [100].) Cancellation and suspension are but some of the orders available to the Tribunal where a finding of guilty of professional misconduct is made. While the safety of the public is the paramount consideration, any disciplinary order must nonetheless be commensurate with the seriousness of the impugned conduct. Consideration must also be given to the probability of re-occurrence of that conduct and the nature and extent of any justifiably apprehended harm.
Two years have now elapsed since Mr Townsend contravened the Conditions. We accept that he is now deeply remorseful for that conduct. We also accept that shortly after the decision made by the Council to suspend his registration, he re-engaged with treatment providers and made genuine efforts to abstain from further Lomotil use. The available evidence indicates that Mr Townsend has now abstained from Lomotil use for a not insignificant period.
The real issue here is whether given the evidence of significant progress in rehabilitation, which of the available orders is the more appropriate.
While there are positive signs that Mr Townsend may have broken the cycle of addiction, it would be premature in our view to make a positive finding that in the foreseeable future there is no real and material risk of relapse. This, added to the practical problem of being unable to detect Lomotil use through objective testing, leads us to conclude that the imposition of strict conditions on Mr Townsend's registration would, at this stage at least, be insufficient to protect the interests of the public.
Cancellation in our view is a more appropriate order than continuation of the suspension, because it enables the appropriate review body to assess, if Mr Townsend decides to apply for reinstatement, whether at that point he has been able to achieve a sustained period of abstinence from Lomotil use.
In our view until Mr Townsend is able to demonstrate a 12 months continuous abstinence it would be premature to decide whether there is a real and material risk of relapse. For these reasons we have decided to exercise the power conferred by s 149C(7) of the National Law to make an order precluding Mr Townsend from seeking review of the order cancelling his registration for a period of 12 months from his last reported Lomotil use, that is, 17 December 2015.
We have decided not to issue a reprimand, as urged by the Commission. Self-evidently, a finding of professional misconduct and an order cancelling registration, indicates that in our opinion Mr Townsend's conduct fell well short of that expected of a health practitioner. In these circumstances, no useful purpose would be served in making an order reprimanding Mr Townsend.

[26]

Should Mr Townsend be ordered to pay the Commission's costs?

The Commission seeks an order that Mr Townsend pay its costs of these proceedings. Mr Townsend contends that the more appropriate order is that each party pay their own costs.
The power to award costs in proceedings where a complaint has been referred to NCAT for determination under the National Law, is found in cl 13 of Schedule 5D to the National Law: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner ... 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. ...
The Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) considered the exercise of the discretion to award costs and accepted at [42] that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event". See also Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]; and in relation to a similar but not identical costs provision, Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 (Lucire) and Ohn v Walton (1995) 36 NSWLR 77 at p 79. While as a general rule costs follow the event, factors may exist that militate against the recovery of costs by the successful party: Philipiah at [42]; Lucire at [48]-[52].
The presumption that the successful party is entitled to receive their costs is generally only displaced where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40].
The Commission was largely successful in these proceedings. We saw nothing to indicate that it conducted the proceedings in a manner that meant that costs were unnecessarily incurred. While as Mr Townsend points out he cooperated in these proceedings and admitted all but one of the particulars, of itself in our opinion this does not provide a proper basis to depart from the usual rule. We order that he pay the Commission's costs of these proceedings.

Health Care Complaints Commission v Townsend

At a glance

Court

Decision date

Source

Judgment (27 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (20)

Cited By (1)