Health Care Complaints Commission v Townsend

Issues

1. In determining the Complaints, four key issues must be determined: 1. Whether, as alleged by the Commission, Mr Townsend consumed pethidine in May 2014. 2. Whether the admitted or proven conduct amounts to unsatisfactory conduct and/or professional misconduct within the meaning of ss 139B(1)(c), 139B(1)(d) and/or 139E of the National Law. 3. Whether Mr Townsend's drug misuse disorder is of a sufficient nature and degree to impair his capacity to practice nursing. 4. What if any protective orders should be made.
2. The Commission bears the burden of proving the Complaints on the balance of probabilities. The evidence necessary, given the seriousness of the allegation and the potentially serious consequences for Mr Townsend if found proven, was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, by exclusion that is, not "slender and exiguous proofs" (per Rich J at p 350), nor "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at p 362).

History of substance abuse

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

The Conditions

1. The Conditions required Mr Townsend to, among other things: 1. Not self-administer any narcotic derivative or any substance listed in Schedule 4D or 8 of the NSW Poisons List or Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW). 2. If prescribed or directed to take Lomotil or any of the above listed substances, to notify the Council within seven days. 3. Provide the Council with the names and contact details of all treating health practitioners. Inform all current and any future treating health practitioners of the Conditions. Notify the Council of any change of treating medical practitioners, psychologist or counsellor within two weeks. 4. Whether in employment as a nurse or not, undergo random Urine Drug Testing (including, testing for Diphenoxylate if available) in strict accordance with "the Council's protocol".

Particulars admitted

1. As noted apart from the pethidine allegation, Mr Townsend admits the particulars of Complaint 1, relevantly: 1. Possessing and self-administering cannabis on two occasions. 2. Failing to notify the Council that he had been prescribed Lomotil. 3. Failing to notify the Council of the details of, and any changes to, his treating practitioners. 4. Between 18 March 2014 and 21 July 2014, failing to undergo drug testing in "strict compliance" with the Council's drug testing protocol.

Complaint 1 Particular 1(b): testing positive for cannabis use

1. Urine samples submitted by Mr Townsend on 10 June 2014 and 23 June 2014 tested positive for cannabis.
2. On 12 June 2014, Mr Townsend contacted the Council and advised that it was likely that the test of the sample taken on 10 June 2014 would be positive as he "ate something" at a party that may have contained cannabis.
3. With respect to the sample given on 23 June 2014, Mr Townsend admits to intentionally consuming cannabis. He testified in these proceedings that he had never been a regular cannabis user but on this occasion he was very stressed and unable to sleep and turned to cannabis for relief.

Complaint 1 Particular 2: Failing to notify Council of being prescribed Lomotil

1. Mr Townsend admits failing to disclose to the Council that he was prescribed Lomotil on 21 occasions by 15 different medical practitioners between 18 March 2014 and 21 July 2014.
2. Mr Townsend stated that at the time he was "living the addiction" and failed to make those disclosures because he was ashamed of his conduct and worried about how the information might be used.
3. At the time, the tests were undertaken a test had not been developed to detect diphenoxylate, an ingredient of Lomotil. The available material indicates that this remains the case.

Complaint 1 Particular 3: failure to notify Council of details of treating practitioners

1. Mr Townsend admits, in breach of the Conditions, failing to: 1. notify the Council of the names and contact details of 12 of the 15 health practitioners whom he consulted between 18 March 2014 and 21 July 2014. 2. inform these practitioners of the Conditions and provide the Council with a document evidencing that he had done so. 3. notify the Council of any changes to his treating practitioners.

Complaint 1 Particular 4: Failing to undergo RDT

1. The Conditions required Mr Townsend to undergo random urine drug testing at least once a fortnight during any period he was not employed as a nurse. Between 28 April 2014 and 7 July 2014, Mr Townsend failed to undergo six of the ten required tests.
2. Under the Council's protocol, Mr Townsend was required to ring a dedicated hotline number each weekday. A recorded message advised whether he would be required to undergo testing on that day. The test was required to be taken under the supervision of a nominated medical practitioner.
3. Mr Townsend claims that two of the missed tests were caused by a hotline malfunction. He attributes another to the difficulty of finding a doctor in his local area willing to supervise the taking of the sample after his GP had left the practice. With respect to the last two scheduled tests, he explained that by then he had decided it was futile to continue as he apprehended, correctly as it turned out, that his registration would be suspended.

Summary

1. The available evidence supports a finding that, as admitted by Mr Townsend, the conduct particularised in Complaint 1, Particulars 1(b),2,3 and 4 occurred.

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

1. 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.
2. 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).
3. 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".
4. 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.
5. Samples provided by Mr Townsend to PaLMS on 19 June 2013 and 3 December 2014 also tested positive for norpethidine.
6. 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.

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

Mr Townsend's response to test results

1. 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.
2. 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.
3. 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".
4. There is no evidence that PaLMS undertook the retesting requested by Mr Townsend.
5. 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.

A false positive for pethidine?

1. In the course of a consultation with Mr Townsend shortly before the hearing, Dr Swift undertook an internet search about Mr Townsend hypothesis that Lomotil consumption was the most likely explanation for the positive test for pethidine. He found an article, "Lomotil Addiction", posted on June 13, 2013 on the website Prescription Drug Addiction (http://www.drugaddictiontreatment.com). On questioning in these proceedings, Dr Swift stated he assumed the article had been written by a treatment practitioner but did not know the identity of the author. He properly conceded that toxicology was not an area of his expertise.
2. Under the heading: "Will Lomotil show up on Urine tests at work or school?", the article states: Lomotil does contain an opiate which can be detected in urine tests eight to 24 hours after taking it. It can show up as a false positive for Demerol, depending on how much you took. It will show up in hair follicle tests for 90 days and test using saliva for one or two days. ( "Demerol" is the name used for pethidine in the USA.)

Failure to conduct an additional test

1. 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".
2. 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. …
3. 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".
4. 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.

Opinion of Dr Vasquez

1. 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.
2. 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.
3. 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.
4. 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.
5. 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".
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.

Conclusion

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. We find Complaint 1, Particular 1(a) proven.

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

1. 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.
2. 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.
3. 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
4. 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.

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

1. The Commission contends that Mr Townsend is guilty of "professional misconduct", which is defined by s 139E of the National Law to mean: 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.

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

1. 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.
2. 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 ...
3. 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.
4. 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.
5. 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.
6. 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.

Does Mr Townsend suffer from "drug abuse", "drug dependence" and/or a "drug misuse disorder"?

1. We must decide whether, as alleged in Complaint 3, Mr Townsend suffers from "drug abuse", "drug dependence" and/or a "drug misuse disorder" and that such condition(s) detrimentally affects or is likely to detrimentally affect his capacity to practise the profession of nursing. (See definition of "impairment" in s 5 of the National Law.)
2. It is not necessary to define the alleged condition with a high level of precision, or in terms of narrow diagnostic labels (Grant v Health Care Complaints Commission [2003] NSWCA 73 at [11]). Nonetheless, the nature of the alleged condition must be considered as it may be relevant to the assessment of whether it affects Mr Townsend's capacity to practise the profession of nursing.
3. Dr Swift is of the opinion that Mr Townsend suffers from a "drug use disorder". Mr Townsend accepts that opinion. The parties apparently agree that the term "drug use disorder" and "drug misuse disorder" are interchangeable. Neither suggest there to be a material difference between the three conditions listed in Complaint 3.
4. We note that the most recent edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V), a manual accepted in Australia as an authoritative psychiatric text, no longer uses the terms "substance abuse" and "substance dependence", terms used in earlier editions of the manual. Rather DSM V uses the single label "substance use disorders", which it categorises as mild, moderate or severe.
5. When referring to Mr Townsend's condition we will use the term "substance use disorder".

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

1. 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.
2. In Dr Swift's opinion, Mr Townsend's work function would be "markedly impaired" if he were to misuse Lomotil.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Conclusion

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. We find Complaint 3 proven.

What, if any, disciplinary orders should be made?

1. 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.
2. 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).
3. 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].

Orders sought by the Commission

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. The real issue here is whether given the evidence of significant progress in rehabilitation, which of the available orders is the more appropriate.
7. 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.
8. 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.
9. 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.
10. 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.

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

1. 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.
2. 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. ...
3. 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].
4. 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].
5. 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.

Orders

1. Pursuant to s 149C(1) of the National Law, the Tribunal decides to cancel Mr Townsend's registration.
2. Pursuant to s 149C(7) of the National Law, Mr Townsend cannot seek review of Order 1 before 17 December 2016.
3. Mr Townsend must pay the Commission's costs of the proceedings, as agreed or assessed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 07 September 2016