Health Care Complaints Commission v Varma

Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/00060443 Publication restriction: The Tribunal made an order pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibiting the disclosure to any person or entity of the names, addresses or any other identifying information of any person referred to as a patient (namely Patients A to D) or dentist (namely Dentists A to D) or any other dentists of the Practice in the evidence in the proceedings.

REASONS FOR DECISION

1. By Application for Disciplinary Findings and Orders filed 13 March 2021, the Health Care Complaints Commission (Commission) pursuant to s 149C of the Health Practitioner Regulation National Law (NSW) (National Law) seeks protective orders from the Tribunal in respect of the conduct of the respondent Dr Vishnu Varma.
2. The proceedings were conducted as a combined "Stage One and Stage Two" hearing on 14 and 15 October 2021.
3. For the following reasons, we have decided to make the orders and impose the conditions on Dr Varma's registration set out in [143].

The Commission's evidence

1. The Commission filed a folder of material consisting of some 33 documents. These documents include but are not limited to correspondence between the Commission and Dr Varma; Medicare records; prescriptions for Endone; patient records, two expert reports of a psychiatrist Dr Anthony Samuels and a report of the Impaired Registrants Panel (IPR) of the Dental Council of New South Wales (Council) dated 4 March 2021 following a hearing on 4 February 2021.
2. Dr Samuels was required for cross-examination. The Commission took the opportunity to adduce some further evidence in chief. This was because there were some further documents which had arisen since he prepared his reports.

Dr Varma's evidence

1. Dr Varma filed a small volume of materials which included his Reply to the Disciplinary Application, a statement dated 16 September 2021, an expert report of his treating psychiatrist Dr Glen Smith (an addiction specialist), and a character reference of Mr George Lalas.
2. Dr Varma was required for cross-examination by the Commission. Given his admissions, and the Agreed Statement of Facts, we only need briefly summarise his evidence at the hearing.
3. In brief, Dr Varma agreed that he read the conditions on his registration at the time that they were imposed, that he was aware of the drug screening policies of the Council, but he understood that Endone was a Schedule 8 drug; that the Pharmaceutical Regulatory Unit (PRU) inspection was a "wake up call"; that none of his family for whom he had prescribed were aware that he done so he had prescribed; that he wrote prescriptions in the names of various dental assistants at the practice; that the other pharmacists were not aware of what he was doing; that he knew that what he was doing and that he had "a problem".
4. Ms Bayley extensively explored various topics such as his ingestion of poppy seeds, his consumption of Codeine; the various prescriptions he had written in the name of other dentists and for family members without their knowledge, and his addictive behaviour, some of which, in Dr Varma's words, was "classic addiction".
5. Dr Varma said that he would comply with any conditions the Tribunal might place on his registration. He said that he was incredibly embarrassed and ashamed, that he was baffled how it all happened, that he "deeply" apologised for his conduct, and that he would respect any further suspension.
6. Dr Smith also attended the hearing for cross-examination and to otherwise assist the Tribunal.

Other

1. Importantly, the documents before the Tribunal included an Agreed Statement of Facts dated 14 October 2021.

Complaint

1. The Commission brought three complaints to the Tribunal. The complaints relate to Dr Varma's conduct as a dentist in September and October 2019.
2. The background to the complaints is that: 1. on 6 January 2016, Dr Varma was first registered as a dentist; 2. on 6 February 2019, Dr Varma's authority to prescribe Schedule 8 drugs of addiction was withdrawn; 3. on 8 July 2019, public conditions were imposed on his registration including: 2. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW).
3. On 8 July 2019, private conditions were imposed on his registration including: 1. Not to prescribe for self-medication ... 6. To comply with the Dental Council of NSW's Drug Screening Policy and Participant Procedure - drug screening (as varied from time to time) and attend for: (a) random urine drug screening (UDS).

Complaint One

1. Complaint One is that Dr Varma is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law in that he contravened conditions to which his registration was subject and/or s 139B(1)(l) of the National Law in that he engaged in improper and/or unethical conduct relating to the practice or purported practice of dentistry.
2. The Particulars to Complaint One are: 1. on about 9 September 2019, Dr Varma self-administered Codeine, a Schedule 8 drug of addiction, in circumstances where his registration was subject to public condition (2); 2. on 4 October 2019, Dr Varma failed to attend urinalysis testing, in circumstances where his registration was subject to private condition (6); 3. on the twelve occasions between 13 April 2020 to 29 April 2020 as specified in column 1 of Schedule 1 to the Complaint, Dr Varma inappropriately wrote prescriptions for Endone, a Schedule 8 drug of addiction, for self-medication in circumstances where: 1. the prescriptions bore the names of his colleagues as the purported prescribers as specified in column 2 of Schedule 1; 2. the prescriptions bore the names of family members as the purported patients as specified in column 3 of Schedule 1; 3. Dr Varma did not have an authority to prescribe Endone; 4. Dr Varma's registration was subject to public condition (2); 5. Dr Varma's registration was subject to private condition (1).

Complaint Two

1. Complaint Two is that Dr Varma is guilty of professional misconduct under s 139E of the National Law in that he: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration, and/or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration
2. Complaint One and the Particulars thereof were relied upon individually and cumulatively as the Particulars of Complaint Two.

Complaint Three

1. Complaint Three is that pursuant to s 144(d) of the National Law, Dr Varma has an impairment within the meaning of s 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession of dentistry.
2. The sole Particular of Complaint Three was that Dr Varma suffers from iatrogenic opioid abuse and dependence and a mood disorder.

Agreed Facts

1. Dr Varma has admitted the underlying conduct the subject of the Complaint and the parties have reached an agreement on the relevant facts. We note that some of them are not particularly relevant, but for completeness and as they were agreed between the parties we will state them all.
2. In 2015, Dr Varma completed a Doctor of Dental Medicine.
3. On 6 January 2016, Dr Varma was first registered as a dentist.
4. Between February 2016-December 2017, Dr Varma worked as a dentist at Victor Gentle Dental Centre at Blacktown.
5. Between December 2016-August 2018, Dr Varma worked as a dentist at Profilo Dental at Surry Hills.
6. Between June 2017-September 2018, Dr Varma worked as a dentist at Camden Dental Surgery.
7. In October 2018, Dr Varma started working as a dentist at Gentle Dental (the Practice).
8. Several dentists worked at the Practice, including Dentists A, B, C, D and another.
9. Endone and Codeine are Schedule 8 drugs of addiction.
10. On 15 January 2019, Kim Dolan, Principal Pharmaceutical Officer at the PRU telephoned Dr Varma.
11. On 18 January 2019, Dr Varma provided a written submission to the PRU.
12. On 18 January 2019, Dr Varma attended an interview with the PRU.
13. On 18 January 2019, Dr Varma agreed to an order prohibiting him from supplying, administering or prescribing Schedule 8 drugs of addiction in his capacity as a registered dental practitioner.
14. On 29 January 2019, Dr Varma emailed the Commission to self-report that he had prescribed Endone to himself and family members for his own personal use.
15. On 4 February 2019, Dr Varma's authority to prescribe Schedule 8 drugs of addiction was withdrawn.
16. On 8 February 2019, Dr Varma attended an initial assessment with Dr Glen Smith.
17. On 1 May 2019, Dr Varma attended an assessment with Dr Anthony Samuels.
18. On 2 July 2019, Dr Varma attended an Impaired Registrants Panel hearing. Dr Varma agreed to conditions being imposed on his registration.
19. On 8 July 2019, public practice conditions were imposed on Dr Varma's registration including: 2. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW).
20. On 8 July 2019, private conditions were imposed on the Dr Varma's registration including: 1. Not to prescribe for self-medication ... 6. To comply with the Dental Council of NSW's Drug Screening Policy and Participant Procedure - drug screening (as varied from time to time) and attend for: (a) random urine drug screening (UDS).

Re Complaint One, Particular 1

1. From 8 July 2019, Dr Varma was aware that he was not authorised as a condition of his registration to possess, supply, administer or prescribe Codeine, as defined as a Schedule 8 drug.
2. On 7 and 14 September 2019, Dr Varma attended his GP.
3. On about 9 September 2019, Dr Varma tested positive on urinalysis to Codeine in circumstances where his registration was subject to public condition (2).
4. On 18 September 2019 and 19 September 2019, Dr Varma emailed the Council.

Re Complaint One, Particular 2

1. From 8 July 2019, Dr Varma was aware that he was required to attend random urinalysis testing as and when advised.
2. On 4 October 2019, Dr Varma failed to attend a randomly scheduled urinalysis testing (about which he was advised on 4 October and in circumstances where he had flown to Queensland for a long weekend break), in circumstances where his registration was subject to private condition (6).
3. On 4 October 2019, Dr Varma emailed the Council regarding the missed urinalysis and provided an explanation.

Re Codeine use

1. On 14 September 2019, Dr Varma was prescribed Panadeine Forte (containing Codeine), by his GP. Panadeine Forte is a Schedule 4 drug.
2. On 8 November 2019, Dr Varma notified the Council that he had taken Codeine on 5 November and that he had gastrointestinal issues.
3. On 26 November 2019, Dr Varma attended a compliance interview with the Council.
4. On 16 December 2019, Dr Varma was prescribed Codeine by his gastrointestinal specialist Dr Williams. On 17 December 2019, Dr Varma emailed the Council about this.
5. On 28 January 2020, Dr Varma attended an assessment with Dr Anthony Samuels.
6. On 26 February 2020, Dr Varma attended an IPR hearing.
7. On 18 March 2020, Dr Varma emailed the Council.
8. On 6 and 7 April 2020, Dr Varma emailed the Council concerning his finishing of the prescribed Codeine medication.

Re Complaint One, Particular 3

1. Between about 13 April 2020 and 29 April 2020, on twelve occasions Dr Varma wrote scripts for Endone in the names of other practitioners, with purported patient names, for intended self-medication, as set out in the Schedule to the Complaint.
2. On 14 April 2020, Dr Varma emailed the Council.
3. On 15 April 2020, Dr Varma emailed the Council concerning an appointment with Dr Williams. Dr Varma did not mention that he had written Endone prescriptions.
4. On 23 April 2020, Dr Varma emailed the Council.
5. On 28 April 2020, Dr Varma emailed the Council.
6. On 30 April 2020, a St Ives pharmacist telephoned the Practice receptionist questioning the legitimacy of prescription AA48165678. Dr Varma said to the Practice receptionist words to the effect that he had written the script for his sister who was experiencing wisdom tooth pain.
7. On 30 April 2020, a dentist in the Practice arranged a meeting with Dr Varma to discuss concerns raised by the receptionist about prescription AA48165678. Dr Varma said words to the effect that he had written the script for his sister. When questioned, Dr Varma initially denied writing any other scripts for Endone over the past 18 months, then said words to the effect that he had prescribed Endone in the last two weeks on 5 or 6 occasions using script pads belonging to other dentist/s. He told the meeting participants that he had been disposing of the medication without taking it.
8. On 30 April 2020, Dr Varma's employment at the Practice was suspended.
9. On 1 May 2020, a Practice dentist submitted a notification to the Australian Health Practitioner Regulation Agency.
10. On 1 May 2020, Dr Varma telephoned the Council.
11. On 1 May 2020, Dr Varma emailed the Council self-notifying of his prescribing conduct in relation to the Endone.
12. On 8 May 2020, Dr Varma emailed the Commission confirming the Practice dentist's account and apologising.
13. On 18 May 2020, Dr Varma agreed to his registration being suspended, effective 19 May 2020.
14. On 19 June 2020, following inpatient rehabilitation, Dr Varma applied for review of the suspension.
15. On 5 August 2020, Dr Varma attended the review hearing and gave evidence. Dr Varma's suspension was lifted, and conditions imposed.
16. On 2 September 2020, Dr Varma attended a PRU interview.

Relevant Law

1. It is appropriate to set out the relevant provisions of the National Law. These are as follows.
2. Section 3, which provides: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for-- (a) the regulation of health practitioners; and (b) the registration of students undertaking-- (i) programs of study that provide a qualification for registration in a health profession; (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
3. Section 3A of the National Law, which is an additional provision for NSW, provides, in terms: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
4. A "NSW provision" is defined in s 5 of the National Law as: (a) a provision that forms part of this Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009; or (b) a NSW regulation. Note - This definition is an additional New South Wales provision.
5. Section 139B of the National Law (which is also an additional provision for NSW), which relevantly provides: 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) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of - (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
6. Section 139E of the National Law (again, an additional provision for NSW), provides: 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.

Consideration of Complaint One

1. Complaint One is that Dr Varma is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law in that he contravened conditions to which his registration was subject and/or s 139B(1)(l) of the National Law in that he engaged in improper and/or unethical conduct relating to the practice or purported practice of dentistry.
2. The conduct the subject of both Complaint One appears in the Particulars set out in [17] above.
3. The conduct and Particulars underlying Complaint One is admitted. Independently of those admissions, we find the conduct established on the evidence before us.
4. Dr Varma has admitted that his conduct was unsatisfactory professional conduct under s 139B(1)(c) and (l) of the National Law. Independently of this admission, we find this Complaint proved.
5. As the Commission submits, in relation to s 139B(1)(c), it is well established that conditions of registration for health practitioners must be "scrupulously observed" and it is "essential" to the smooth operation of the system of regulation and discipline that practitioners comply with conditions placed on their registration: Re Dr Than Le [2001] NSWMT, 20 September 2001 at [95] followed in many subsequent cases including: Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT 13 at [48]; Health Care Complaints Commission v Karalasingham [2019] NSWCATOD 23 at [31]; Prakash v Health Care Complaints Commission [2006] NSWCA at [74].
6. It is self-evident that Dr Varma breached conditions placed on his registration and is therefore guilty of unsatisfactory processional misconduct as defined in s 139B(1)(c) of the National Law.
7. As for s 139B(1)(l), the meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in various cases including Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 at [47]; Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [67]-[69]; Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [21] and following, and further considered in Health Care Complaints Commission v Konigson [2021] NSWCATOD 186 at [93]-[95].
8. As the Commission submits, whether conduct is improper or unethical is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[60].
9. We are amply satisfied that the admitted conduct of Dr Varma was clearly unethical and that he is therefore guilty of unsatisfactory processional misconduct as defined in s 139B(1)(l) of the National Law.

Consideration of Complaint Two

1. Complaint Two is that Dr Varma is guilty of professional misconduct under s 139E of the National Law in that he: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration, and/or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration
2. The conduct and Particulars underlying Complaint Two is admitted. Independently of those admissions, we find the conduct established on the evidence before us.
3. Dr Varma has admitted that his conduct was professional misconduct under s 139E of the National Law. Independently of this admission, we find this Complaint proved. We accept the Commission's submissions on this issue which included: 1. Dr Varma's conduct demonstrated a lack of insight into the need to act scrupulously with regard to professional obligations and to show proper respect to the requirements of the Council; 2. Dr Varma breached conditions which were imposed to protect the public; 3. the PRU and the Council warned Dr Varma about the consequences of failure to comply with conditions; 4. Dr Varma self-prescribed a Schedule 8 drug without authority on 12 occasions; 5. the proper handling and prescribing of Schedule 8 drugs by medical practitioners is of the greatest importance to the community (Spicer v NSW Medical Board & Ors (Court of Appeal (NSW), 19 February 1981, unrep), a principle which applies equally to dental practitioners: Health Care Complaints Commission v Buys [2020] NSWCATOD 44; 6. Dr Varma was well aware of his condition not to prescribe, possess or self-administer Endone, because his conditions had been imposed about 9 months previously, with his consent; 7. Dr Varma was well aware that he was not authorised to prescribe, possess or self-administer Endone because his Schedule 8 drug authority had been withdrawn about 14 months previously, with his agreement.

Complaint Three

1. Complaint Three, the complaint of impairment (namely iatrogenic opioid abuse and dependence and a mood disorder) is admitted.
2. For the reasons set out below, notwithstanding this admission, we do not find this complaint proven. We set out reasons for this conclusion below, but first it is necessary to summarise the evidence of the two experts.

Evidence of Dr Samuels

1. The Commission relied on two reports of Dr Samuels, dated 23 September 2020 and 30 June 2021.
2. Dr Samuels is currently a Consultant Forensic Psychiatrist. He has held many senior positions in academic and public medicine. His areas of expertise include drug and alcohol dual diagnosis issues.
3. In his report of 23 September 2020 to the Council, Dr Samuels relevantly states: 18. I have reviewed my report of 28 January 2020. I described Dr Varma as a 31-year-old dental practitioner working in the Campbelltown area in general dentistry. Things seemed to be going well. He had some ongoing gastrointestinal issues managed by his general practitioner. He had a stable home and family life, was happy in his practice and had a well-defined long-term career plan. 19. I thought Dr Varma had an impairment within the meaning of the Law; namely a problem of iatrogenic opioid abuse and dependence and a mood disorder. I noted problems in regard to drug screening and difficulty with interpretation of the tests but indicated Dr Varma was going to cease codeine and this would make the interpretation of results more straightforward. I suggested that if there were no further positive tests or problems with compliance or other concerns raised by his treating practitioner, it might be appropriate to cease testing in the middle of the year and contemplate exit from the Program. … OPINION Psychiatric Issues 35. Dr Varma is a 31 year old Dentist who has started work a few weeks ago after a period of suspension in Woy Woy and Umina. He is happy to be in his new practice and happy he is not commuting such long distances. Things seem to be stable in his home life. He had a relapse earlier this year in the context COVID-19, a lack of work, stopping his SSRI antidepressant and not having follow up with Dr Smith. Dr Varma said that he did write scripts for Endone but did not actually take them. He and Dr Smith have contemplated the use of Suboxone but decided not to go that way. Dr Varma's management of his gastrointestinal problems has changed, he is no longer being prescribed opioids, and he has changed his diet. 36. Dr Varma had a 4-week inpatient stay at Wesley Hospital which he found very helpful. He realises that he was not accepting he had a problem and was not all that engaged in treatment up until now. He feels there have been substantial benefits; he is managing things differently, he is finding meditation useful and his mood and anxiety symptoms are under control. He denied any cravings for opioids. 37. On mental status examination, he was well presented, his affect reactive and his mood appeared to be euthymic. He seemed to be more insightful. 38. Dr Varma does have an impairment within the meaning of the National Law; namely a Mood Disorder and an Opioid Use Disorder. These conditions seem to be in early remission. 39. These conditions do have the potential to impact upon his professional functioning. He is compliant with his current conditions. Recommendations 40. I would see his current conditions as being appropriate. Once there has been a period of sustained negative tests confirmed by urine drug testing and hair testing, then some easing of his conditions could occur. (emphasis added)
4. In his report of 30 June 2021 to the Commission, Dr Samuels relevantly states: 6. Does Dr Varma currently suffer any impairment within the meaning of the National Law (a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect his capacity to practise dentistry) and, if so, please explain the nature of the impairment and how the impairment affects or is likely to affect his capacity to practise dentistry? 81. Dr Varma does have a mood disorder and an opioid use disorder, both in early established remission. If he were to have a relapse of these conditions they could impact upon his practice as a dentist. 7. Is Dr Varma currently competent to practise dentistry and, if not, please explain why? 82. He is currently working in general dentistry and seems to be performing well. I have no current concerns about his competence. … 9. What conditions, if any, should be imposed on Dr Varma's registration, including any conditions to limit certain dental roles/responsibilities, restrict self-prescribing, restrict access to certain drugs, undergo certain psychiatric/psychological treatment/counselling, be subject to mentoring or supervision, complete certain education/training and/or be subject to hair/urine drug testing? 84. I see his current conditions as being appropriate. He should continue to see Dr Smith at a mutually agreed frequency, to take medication as directed, not to self-prescribe and to be under the regular care of a GP. He should attend a support group. He should have a mentor and supervisor like Dr Ho who can provide some oversight and monitoring and feedback to the Council if any concerns arise. 85. In terms of his dental practice, he seems to be performing well and I have no specific recommendations to make from a psychiatric point of view. He should continue to be subjected to hair and urine drug testing and at this point I think he could move to random urines and quarterly hair testing. (emphasis added)
5. In his further oral evidence in chief to the Tribunal, Dr Samuels agreed that there was a point of difference between him and Dr Smith as to whether Dr Varma's remission was sustained or not. He said that Dr Smith's view that remission was sustained when it had lasted for more than 12 months, was "useful", but "nothing scientific", given that there was always potential for relapse at any time. He agreed that Dr Varma was doing extremely well but despite the fact it been a long time since he had written the prescriptions the subject of the proceedings, he still had concerns because Dr Varma relapsed while he was on the addiction program. Dr Samuels thought that it was still "early days", and would like to see Dr Varma continue longer in the program.
6. Dr Samuels said that he thought the risk of Dr Varma relapsing was low, and that he had gained much more insight.
7. Dr Samuels confirmed that he still regarded Dr Varma as impaired within the meaning of s 5 of the National Law.
8. In cross-examination by Mr Aitken, there was a lengthy discussion about Dr Varma's relapse in April 2020. Dr Samuels said that he saw this as a marker where risk of substance abuse was still high. But he agreed that this relapse predated Dr Varma's participation in the addiction program at Wesley Hospital, that Dr Varma had developed insight and that therefore the current risk of relapse was low. Dr Samuels agreed that recent stressors such as the ill-health of Dr Varma's father and the administration of opioid medication after his surgery not leading to a relapse were "powerful demonstrations" of Dr Varma's insight and ability to avoid opioids.
9. In relation to his disagreement with Dr Smith about whether Dr Varma's remission was sustained or not, Dr Samuels conceded that he was not an addiction specialist, and that the disagreement with Dr Smith was "academic", the issue being that if Dr Varma was not impaired, he could not remain on any impairment program.

Evidence of Dr Smith

1. Dr Varma relied on the evidence of Dr Smith. Dr Smith is a Consultant Psychiatrist, and a Specialist in Addiction and Medicolegal Psychiatry.
2. Dr Smith is Dr Varma's treating addiction psychiatrist. He first saw Dr Varma on 8 February 2019 and has since assessed Dr Varma's progress on treatment on a further 37 occasions, the most recent being 28 April 2021.
3. He prepared reports dated 8 February 2019, 1 May 2020, 8 May 2020, 17 June 2020, 29 July 2020 and most recently, a report dated 6 August 2021.
4. In the report of 8 February 2019 to the Council, which was Dr Smith's initial psychiatric assessment of Dr Varma, Dr Smith relevantly stated that: Dr Varma is a 30-year-old dentist living with his partner and four-year-old stepson. He presented with a relatively brief period of physiological opioid dependence after suffering an Achilles injury in March 2018.He found that he could not reduce oxycodone after the initial three-month period of prescription by a GP and rather than seeking assistance for the persistent pain he commenced prescribing oxycodone for himself in the name of family members and his oxycodone use escalated throughout late 2018 associated with tolerance and withdrawal symptoms. He was contacted by the Pharmaceutical Regulatory Unit in January 2019 apparently after a pharmacist noticed the irregular prescribing. He ceased opioids and had a relatively minor un-medicated withdrawal period of around four days. Dr Varma denied a history of problematic alcohol consumption or illicit substance use. He denied the use of benzodiazepine medications. There was no history of marked anxiety or depressive symptoms and no suicidal ideation. Dr Varma has started attending the Doctors in Recovery meeting and he has commenced urine drug testing. He denied any recent opioid use. He acknowledged that his presentation is consistent with the diagnosis of opioid use disorder and that he needs to abstain from opioids. I discussed with Dr Varma the need to abstain from all addictive substances (including alcohol) due to the risk of relapse and he agreed with that.
5. In the report of 1 May 2020, Dr Smith relevantly states that: Dr Varma told me that he had run out of prescribed escitalopram and in that context his anxiety escalated. He recently prescribed oxycodone for himself and filled the prescription but did not take the medication. He told me that he had not taken any opiates for over one month. He told me that he notified the Council yesterday and he has ceased working. I have strongly advised Dr Varma to seek admission for intensive inpatient management and to consider opioid maintenance treatment with Suboxone. He has contacted the Wesley Hospital Ashfield Addiction Recovery Centre for admission.
6. In the report of 8 May 2020, Dr Smith relevantly states: This letter is provided in my role as treating psychiatrist for Dr Varma further to my letter dated 1 May 2020 to update the Council on Dr Varma's progress. Dr Varma has recommenced escitalopram and his mood has improved. He attended the Doctors in Recovery meeting on Monday and found this beneficial. He presented as insightful into the need for complete abstinence from all addictive substances and behaviours and to have a strong engagement in his recovery program moving forward. He has contacted the admissions officer of the Addiction Recovery Centre at Wesley Hospital Ashfield and will admit for the four-week intensive inpatient program at some stage over the next two weeks.
7. In the report of 17 June 2020, Dr Smith states: This letter is provided in my role as treating psychiatrist for Dr Varma to provide an update on his progress in treatment. On my recommendation, communicated to the Council in my letter dated 1 May 2020, Dr Varma admitted to the Wesley Hospital Ashfield Addiction Recovery Centre (ARC) inpatient program from 25 May 2020 until discharge today. Dr Varma engaged very well in the program, attending all groups, recovery meetings and working on a daily program to support maintenance of long-term recovery. Throughout the admission he has provided urine drug tests, all being negative, on 26 May, 2, 9,13 and 16 June 2020. Dr Varma's mood is stable with medications, including escitalopram 15mg daily and quetiapine 50mg nightly. In my opinion, Dr Varma has benefitted greatly from the admission with improved insight and motivation to engage on a daily basis in a comprehensive program of recovery. He has committed to the following recovery plan after discharge: 1. Attendance twice per week (Tuesdays and Thursdays) in the intensive outpatient group program at the ARC. 2. Random urine drug testing in the group program. 3. Attendance at LifeRing recovery meetings weekly on Monday afternoons. 4.Attendance at meetings of Doctors in Recovery weekly on Monday evenings. 5. Daily readings and journaling regarding recovery. 6. Weekly reviews with me when attending the group program. In my opinion, Dr Varma currently presents as fit to return to practice as a dentist. If be were to continue the recovery plan, his risk or relapse is low.
8. In the report of 29 July 2020, Dr Smith relevantly states: Since 17 June 2020, Dr Varma has remained very actively engaged in his recovery program and he has been attending the full day intensive outpatient program (IOP), twice per week on Tuesdays and Thursdays at the Wesley Hospital Ashfield Addiction Recovery Centre. He has continued attendance at the LifeRing recovery meeting on Monday afternoons. I have seen him for follow-up on a weekly basis in the IOP and his mood remains stable. In my opinion, Dr Varma has made substantial progress in his recovery and he currently presents as fit to return to practice as a dentist. If he were to engage in his current recovery plan, his risk of relapse is low.
9. In the latest report of 6 August 2021, Dr Smith states the following answers to the questions posed by Dr Varma's solicitors: 1. A brief summary of your assessment and treatment of Dr Varma. Please include comment on the current gravity of any condition or disorder. … Dr Varma was admitted to the Wesley Hospital Ashfield, Addiction Recovery Centre, from 25 May 2020 until 17 June 2020 for intensive rehabilitation. He engaged very well in the program and developed a strong program of recovery to continue over the long-term after discharge from the inpatient unit. His mood was much improved with escitalopram 15mg daily (selective serotonin antidepressant/antianxiety medication, SSRI) and quetiapine 50mg nocte (augmenting/mood stabilising medication). After discharge from the inpatient unit, Dr Varma attended the intensive outpatient program at WHA ARC twice per week until early 2021, when his work commitments made it difficult for him to continue. He has remained strongly focussed on his recovery and his mood has been stable. In my opinion, Dr Varma has developed very good insight into his condition and the need for complete abstinence from all addictive substances and behaviours and a focus on long- term recovery. 2. Whether or not in your opinion Dr Varma is impaired within the meaning of National Law? … Dr Varma previously presented with impairment related to his opioid use disorder, according to the National Law. He has been in sustained remission, and given his insight, and ongoing focus on long-term recovery, in my opinion, his risk of relapse is low whilst he continues to maintain his recovery program. Therefore, he is not currently impaired according to the National Law. 3. Whether or not you have any concerns in relation to Dr Varma being able to continue to practise medicine. If you have concerns, what are they and does the imposition of conditions on Dr Varma's registration address your concerns? As Dr Varma's opioid use disorder is now in sustained remission, I believe that his risk of relapse is very low, whilst he continues to engage in his long-term recovery program. I have no concerns currently regarding his ability to practise dentistry safely. Dr Varma has been adhering to conditions that have been placed upon him by the Dental Council and I support his ongoing progression through the Health Program with an ultimate path to exit. 4. Any other comments you may wish to make. In my opinion, Dr Varma prescribed himself medications when in active addiction with opioid use disorder. He has developed substantial insight into the nature of his condition and his risk of relapse is low whilst he continues to engage in a daily recovery program. I strongly support him being able to continue to practise dentistry. Any further suspension would likely impact negatively on his mood and place him at higher risk for relapse of both his anxiety and depressive symptoms and his opioid use disorder. (emphasis added)
10. In additional evidence in chief, Dr Smith agreed that as a general proposition, dependence on opioid medication can develop rapidly. He agreed that opioids could be quite addictive and a patient could build up tolerance with the number of tablets and the frequency of consumption increasing over time. He agreed that withdrawal was difficult without assistance, and the patients may behave "out of character" to their non-dependent self, and that this could be include behaviour which was very out of character. He agreed that the process of recovery could be "rocky", and it was the usual course that an initial recovery could be followed by remission but then a further relapse. He further agreed that life stressors (such as the loss of a job, the death of a parent or friend, or the loss of income) may make patients vulnerable to relapse.
11. Dr Smith agreed that one of the goals of the in-patient addiction program, such as that attended by Dr Varma, was to develop coping strategies. Other goals included the development of insight over time, which Dr Varma had over time.
12. After discussing Dr Varma's relapse in April 2020, Dr Smith agreed that a later relationship failure, which was a significant stressor, did not cause a relapse. He thought Dr Varma coped reasonably well with that situation. Further, after developing a serious medical condition necessitating significant pain including opioid medication, he had not suffered any relapse.
13. Dr Smith was then asked about his opinion that Dr Varma was not currently impaired. His view was that once recovery was "sustained", a patient was no longer impaired. He had no concerns about Dr Varma practising dentistry.
14. Dr Smith was then cross-examined at some length by Ms Bayley. He said that when he referred to "sustained" remission, he meant a period of over 12 months. He agreed that his opinion was dependent on the accuracy of the facts that had been given to him.
15. In short, Dr Smith adhered to his opinion as stated in his last report.

Conclusion

1. The Commission relies on the opinion of Dr Samuels, noting that: 1. Dr Samuels has assessed Dr Varma on four occasions; 2. Dr Samuels has extensive expertise, including specific experience with impaired practitioners; 3. Dr Samuels gave oral evidence and maintained his opinion that Dr Varma is currently impaired as defined by the National Law; 4. Dr Samuels' opinion (early remission) should be preferred to the opinion of Dr Smith (sustained remission) because: 1. a relatively short time had passed since the April 2020 (relapse) conduct; 2. if Dr Varma were to have another relapse, that is likely to impact on his capacity to practice as a dentist; 3. Dr Varma has current/upcoming stressors including moving from his parents' home and uncertainty regarding the Tribunal proceedings; 4. Dr Varma was not yet in sustained remission and requires conditions for oversight and monitoring.
2. Despite Dr Varma's admission of Complaint Three, we consider that we have an independent role and that we must consider whether the evidence, including the expert evidence before us, establishes the Complaint.
3. We find the opinion of Dr Smith to be more persuasive, having assessed Dr Varma regularly over a period of some 31 months. Dr Samuels saw Dr Smith on four occasions. But more importantly, Dr Smith is an addiction specialist, which Dr Samuels (with the greatest respect to him) is not.
4. While Dr Samuels stated in his report of 23 September 2020 that Dr Varma had a Mood Disorder and an Opioid Disorder, he stated that those conditions even then were in early remission. In his report of 30 June 2021, while confirming his diagnosis of impairment, Dr Samuels says that those disorders were both now in "early established remission".
5. In short, Dr Smith's last report is more recent than Dr Samuels, he has seen and assessed Dr Varma extensively over a lengthy period of time, and he is an addiction specialist. It was neither put to Dr Smith nor submitted to the Tribunal that Dr Smith had some familiarity because of the therapeutic relationship which suggested that Dr Smith's opinions were compromised in any way.
6. In conclusion, we are not satisfied that Complaint Three is established.

Commission's submissions

1. In summary, The Commission seeks orders: 1. under s 149C(1)(b) of National Law suspending Dr Varma's registration as a dental practitioner for a period of six months; 2. under s 149A(1)(b) of the National Law imposing practice conditions on Dr Varma's registration as a dental practitioner; and 3. under cl 13 of Sch 5D of the National Law that Dr Varma pay the Commission's costs as agreed or assessed.
2. The Commission submits that suspension for six months is appropriate because: 1. the conduct involved planning, with Dr Varma writing private prescriptions on different colleagues' prescription pads using the names of different family members (to avoid detection). Dr Varma presented the scripts to different pharmacists and twice claimed that his sister was suffering dental pain (to persuade the pharmacists to dispense the medication); 2. the conduct involved deceit, with Dr Varma gaining access to his colleague's prescription pads at the practice without their knowledge, using the names of his family members as the purported patients, crossing out the practice phone number and writing his mobile number, so that any pharmacist who queried the script would contact the him directly, rather than alert his colleagues; 3. the conduct continued until detected by a pharmacist. On the morning of 30 April 2002, Dr Varma told his receptionist to tell the pharmacist querying a script that it was for his sister's dental pain so the pharmacist would think the script was legitimate. During a meeting in the afternoon of 30 April 2020, Dr Varma initially denied writing any other scripts for Endone over the past 18 months then admitted to his supervisor that he had self-prescribed on 5-6 occasions (minimising his conduct). Only after advice from his supervisor, Dr Varma self-notified his conduct; 4. the conduct occurred after prior warnings; 5. the conduct occurred during a time while Dr Varma's was in regular contact with the Council, assuring the Council that he was not taking or seeking any more pain relief, assuring the Council that no medications had been prescribed" (while omitting to mention his self-prescribing); 6. the conduct was disrespectful towards Dr Varma's colleagues (who were presumably unaware their prescription pads had been used), disrespectful towards the chemists (those who were unaware the prescriptions were not genuine) and disrespectful towards the purported patients (who were presumably unaware the medication was prescribed in their names).

Dr Varma's submissions

1. Dr Varma admits that his conduct breached conditions of his registration. He asks that we accept his repeated statements of remorse and embarrassment to various bodies, including the Tribunal, about his misconduct. He accepts that to breach a condition placed on registration is not an insignificant matter and should be treated seriously, but the breach itself in this case deserves close scrutiny.
2. He submits that his breaches were inescapably the function of an addiction lapse and not the clear-headed wilful conduct of a practitioner coolly choosing to flout restraints that had been appropriately applied.
3. He says that while an admission of professional misconduct was appropriately made, it does not automatically follow that the consequences of such misconduct would always or must necessarily result in suspension or cancellation. He says that it is essential that the Tribunal understand that all of the conduct the subject of the complaints preceded him attending the May 2020 inpatient treatment. He asks the Tribunal to infer that if his treatment had been completed prior to April 2020, the misconduct in April 2020 (being the relapse described above) would not have occurred. He also asks the Tribunal to infer that the April 2020 conduct might not have occurred because since the treatment he has been subject to the stressors of suspension, the ongoing serious illness of his father, the breakup of his relationship, the ongoing stresses of lockdown, the management of opioid prescribing for his post-operative surgery in December 2020 and the rigours of travelling long distances at times for work and apparently being away from family on weeknights when working.
4. He further submits that in terms of personal deterrence and protection of the safety of the public, the Tribunal could safely accept the uncontradicted evidence of the expert psychiatrists that Dr Varma is safe to return to work, he is a low risk of relapse, and he has significant insight. He submits that his recovery to date, his voluntary participation in intensive treatment, his agreeing to suspension in 2020 and his development of insight place him as an exemplar of recovery in the context of these types of matters, where practitioners may present with much less aided recovery and treatment or insight. His personal deterrence has involved inevitable detection, sanction, and, most significantly, the period of some months suspension of registration that followed In May 2020. He notes that the Council found him safe enough to resume work with notice of the April 2020 breaches.
5. As sending "a message" to the profession that such behaviours will receive appropriate sanction, he again emphasises the different nature of tackling an impairment and protective orders that follow, as against other examples of misconduct. He says that he has already served a period of suspension without opportunity to practise his profession and that fact could be appropriately referred to in the Tribunal's judgment by way of sending a message to the profession (and maintaining the community's confidence in the profession).
6. He submits that the question can be adequately dealt with by imposing a suspension not exceeding two to three months in duration. This would also address the theoretical risk raised by Dr Smith that a suspension may place Dr Varma at higher risk of relapse (through the loss of employment, mental wellbeing and all the associated stressors that could follow). Whilst Dr Varma gave evidence that he is confident that he could deal with a period of suspension, he submits the Tribunal could properly balance its protective order obligations by reducing the period sought by the Commission to a period which both marks the seriousness of the misconduct but also preserves the likelihood of his continued recovery and his ability to benefit the public in a profession he loves. In that respect, he emphasises that there is no evidence before the Tribunal that any patient suffered any harm or was in danger of any adverse impact.

Conclusion

1. The relevant principles in determining a protective order have been stated on many occasions and include the following: 1. the protection of public safety and health is paramount; National Law, s 3A; 2. public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; National Law, s 3(2)(a); 3. the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash 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 at [91]; 5. the indirect but important effects of a protective order which must be considered when determining the appropriate protective order. These include general deterrence to the profession and a public statement of the unacceptability of the conduct: see Health Care Complaints Commission v Do [2014] NSWCA 307 and New South Bar Association v Meakes [2006] NSWCA 340. 6. Whether seriousness of the conduct is sufficient to warrant suspension or deregistration is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
2. We accept that Dr Varma is remorseful, shows insight, has taken a number of rehabilitative and remedial steps and genuinely regrets his conduct.
3. Nevertheless, we consider that, objectively, the professional misconduct of Dr Varma is of such a serious nature that any protective order short of suspension would be an inadequate response to the seriousness of his misconduct: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408.
4. Having considered all the submissions and the applicable principles, we consider that there should be the period of suspension sought by the Commission.

Conditions on registration

1. Conditions were placed on Dr Varma's registration. These lapse once this Complaint is determined. The Commission seeks the reimposition of the conditions on Dr Varma's registration. This is not opposed by Dr Varma. In doing so, we take into account Dr Smith's support for Dr Varma practising dentistry with appropriate safeguards through conditions, including Dr Varma's ongoing progression through the Health Program with an ultimate path to exit.
2. Accordingly, we will order that those conditions be placed on Dr Varma's registration.
3. Given our finding that impairment is not established, the parties have liberty to approach the Tribunal with amended conditions if necessary.

Costs

1. This is a costs jurisdiction, and ordinarily costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Qasim v Health Care Complaints Commission [2015] NSWCA 282.
2. However, the Commission was not successful in establishing Complaint Three. Accordingly, we invite the parties' submissions on whether we should make some order other than Dr Varma pay the Commission's costs as agreed or as assessed, including whether we should order Dr Varma to pay only a certain percentage of the Commission's costs and, if so, what that percentage should be.
3. The Commission should file submissions on this issue on or before 28 January 2022. Dr Varma may respond by 11 February 2022. The Commission may reply by 25 February 2022. All submissions must be limited to three pages in length.
4. We invite the parties to have discussions about this issue and to reach an agreement on costs.
5. However, if they cannot, and it becomes necessary to decide the matter, the Tribunal proposes to do so "on the papers". If either party opposes that course, they should address that matter in their submissions.

Orders

1. The Tribunal orders that: 1. The Complaint of unsatisfactory professional conduct is established. 2. The Complaint of professional misconduct is established. 3. The Complaint of impairment is not established. 4. Dr Varma's registration is suspended for a period of six months from the date of these reasons. 5. The Commission is to file submissions on costs on or before 28 January 2022. Dr Varma may respond by 11 February 2022. The Commission may reply by 25 February 2022. 6. The following conditions be placed on Dr Varma's registration: 1. Not to undertake solo dental practice. 2. To advise the Dental Council of NSW in writing at least seven days before changing the nature or place of his practice. 3. (Omitted) 4. Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW). 5. Not to prescribe for self-medication. 6. That should he be prescribed or directed to take a Schedule 8 drug he must notify the Council within seven days of the medication being prescribed and provide written confirmation from the treating practitioner outlining the treatment and prescription. 7. To comply with the Dental Council of NSW Drug Screening Policy and Participant Procedure - drug screening (as varied from time to time) and attend for: 1. Random Urine drug screening (UDS) 2. Quarterly hair drug screening To authorise the testing facility to forward all results of drug screening to: 1. the Council 2. his treating practitioners 3. the Council appointed practitioner. He is to bear responsibility for the costs incurred in meeting this condition. 1. To nominate a senior dental practitioner at all locations where he practises for approval by the Dental Council of NSW. He is to: 1. submit evidence to the Council that he has provided the approved practitioner with a copy of all conditions on his registration prior to commencement of practising as a dental practitioner 2. authorise the approved practitioner to notify the Council immediately if there are any concerns in relation to his health or if his health is adversely affecting his capacity to practise. 1. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the practitioner and the treating practitioner. The practitioner: 1. is to authorise his treating practitioner to inform the Dental Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in health status (including a significant temporary change). 1. must provide the Council with the professional details of the treating practitioner within 14 days of the Tribunal decision. 1. To attend for treatment by an addiction psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise his treating practitioner to inform the Dental Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in health status (including a significant temporary change). 1. must provide the Council with the professional details of the treating practitioner. 1. That the extent of his professional duties is to be guided by his health status and the advice of his treating and Council appointed practitioners. 2. To authorise the Dental Council of NSW to forward copies of the Tribunal decision and other information relevant to his impairment to the Council nominated practitioners and his treating practitioners. 3. To attend for review by a Council-appointed psychiatrist on a six-monthly basis or as otherwise directed by the Council. 4. To attend a review by the Impaired Registrants Panel in six months or as otherwise directed by the Council. 5. To bear all costs arising out of compliance with these conditions. 6. To authorise and consent to any exchange of information between the Dental Council of NSW, NSW Ministry of Health, Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions. 7. The appropriate review body for the purpose of a review under sections 163 -163C of the Health Practitioner Regulation National Law is the Dental Council of NSW when the respondent has a principal place of practice in NSW. 8. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Dental Board of Australia.

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: 13 January 2022