Health Care Complaints Commission v XC

Background

1. The following matters, unless noted by us to be an allegation, are established to the requisite civil standard. The Tribunal records its appreciation of the comprehensive written submissions. including background material, provided by Ms Tronson of counsel on behalf of the HCCC, as well as her oral submissions and those of Mr Lynch on behalf of the practitioner.
2. The practitioner was born in 1980. She was accordingly aged 34 years at the date of the hearing. She graduated with the degree of Bachelor of Medicine from a New South Wales university in 2004 and was first registered on 10 January 2005 as an intern. She was granted general registration as a medical practitioner in January 2006. She requested removal from the register in October 2014 and her name was formally removed from the register of medical practitioners on 22 October 2014.
3. The practitioner undertook her internship and two years of residency at a major Sydney public hospital.
4. In March 2007 the practitioner's then treating psychiatrist notified the Medical Board about the practitioner's past substance abuse and psychiatric issues.
5. In April 2007 the practitioner was admitted to a Sydney clinic for treatment for Stillnox abuse.
6. In June 2007 conditions were imposed on the practitioner's registration. The conditions were principally health conditions (not to prescribe for self medication, attendance on a general practitioner of her choice, not to self administer any S4 or S8 (of the NSW Poisons List) substance, or S1 of the Drug Misuse and Trafficking Act 1985 (NSW) or any narcotic derivative, to attend Narcotics Anonymous or Doctors in Recovery, to attend for treatment by a psychiatrist and psychologist of her choice, and to attend for a review by the Medical Board in 3 months).
7. In July 2007 the practitioner was admitted to another clinic for treatment of her Stillnox abuse. She was admitted to a different clinic in August 2007 for treatment of Stillnox abuse and depression.
8. From September 2007 to January 2008 different conditions were imposed on the practitioner's registration. The conditions included a requirement that she surrender to the Pharmaceutical Branch of the Department of Health her authority to prescribe in S4D drugs and Stillnox, to only work in a hospital under supervision in a position approved by the Medical Board but not on night shifts. Her health conditions were continued with the additional requirement that she undergo thrice weekly urine drug testing, at her own expense, in accordance with the Medical Board's policy.
9. In October 2007 a urinary drug screen undertaken by the practitioner revealed Oxazepam. That month the practitioner ingested Stillnox at home, and attempted to self prescribe at the hospital where she was employed.
10. In November 2007 the practitioner was hospitalised in a public hospital for treatment of her Stillnox abuse.
11. In December 2007 a urinary drug screen undertaken by the practitioner was positive for Temazepam and Zolpidem.
12. In December 2007/January 2008 the practitioner was admitted to a third clinic for treatment of Stillnox abuse and depression.
13. In January 2008 the practitioner obtained a position as a senior resident in Obstetrics and Gynaecology at a major teaching hospital in Sydney.
14. In January 2008 the conditions on the practitioner's registration were varied. The varied conditions remained in place until May 2008. The conditions included an additional condition that the practitioner complete a particular relapse prevention program, and that she attend for treatment by a drug and alcohol specialist of her choice.
15. Further conditions were imposed from May 2008 to August 2008. While the practitioner's practice remained restricted to a hospital environment, the requirement she not work a night shift was not repeated, but she was required to work not more than one hour overtime per week. The condition she attend on a drug and alcohol specialist was removed on the basis it had expired.
16. From August 2008 to March 2009 the earlier conditions were essentially repeated with the additional requirement that she attend for treatment by a clinician with expertise and training in "Drug and Alcohol" [treatment].
17. In November 2008 to December 2008 the practitioner admitted herself to a private clinic for treatment of Stillnox abuse and depression.
18. The practitioner commenced work in another major public hospital as an accredited registrar in Obstetrics and Gynaecology in January 2009. She remained in that position until her registration was suspended in October that year.
19. In February 2009 the practitioner's urine drug tests were positive for codeine.
20. From March 2009 to June 2009 and again from June 2009 to October 2009 her health conditions continued unaltered but the practitioner was permitted to work up to 2 hours overtime per week.
21. On five occasions in June 2009 and on one occasion in July 2009 the practitioner's urine drug screens were positive for codeine.
22. On 19 October 2009 the practitioner's registration was suspended under s 66 of the Medical Practice Act 1992 (NSW) (repealed). In February 2010 the suspension was lifted and her registration was subject to further practice and health conditions (as previously imposed).
23. In July 2010 the practitioner's urine drug screen was positive for Codeine. On three occasions in August 2010 the practitioner's drug screens were positive for oxycodone and midazolam.
24. In August 2010 the practitioner was admitted to a private hospital for treatment of major depression.
25. In October 2010 the practitioner's registration was again suspended.
26. In December 2010 the practitioner's urine drug screen was positive for oxycodone.
27. In February 2010 the practitioner's suspension was lifted and her registration was subject to conditions.
28. In February 2010 the practitioner commenced working at a Sydney public hospital in a Mental Health Unit as a Registrar.
29. Between February 2011 and October 2011, the practitioner falsely represented to pharmacists, when self-prescribing Stillnox, that the medication was for her mother.
30. During the period February 2011 to July 2011 the practitioner failed to attend for treatment with a psychologist with expertise in drug and alcohol addiction.
31. In about April 2011 the practitioner asserts she was affected by the acrimonious breakdown of an intimate relationship. At this time she underwent a termination of pregnancy.
32. In May 2011 the practitioner used her supervisor's prescription pad to prescribe Esomeprazole for herself.
33. Between May 2011 and June 2011 the practitioner created fictitious names and addresses of patients and presented false prescriptions to pharmacists.
34. Between May 2011 and June 2011, on multiple occasions, the practitioner failed to present for urine drug screens as required by the conditions on her registration.
35. Between May and June 2011 the practitioner falsely represented a urine sample was her own to pathology collection agents.
36. In June 2011 the practitioner self administered Oxazepam and Temazepam.
37. In July 2011 the practitioner used her supervisor's prescription pad on multiple occasions. She used one prescription to obtain Stillnox. She misled Dr Samuels and the Medical Council about the origin of her supply of Temazepam, and misled the Medical Council with a false story about why she missed a urine drug screen.
38. In August 2011 the practitioner was re-admitted to a private hospital for treatment of Stillnox abuse and depression. During her admission she self administered Stillnox. She also self-prescribed and self administered Temazepam and Stllnox during this month.
39. Between August 2011 and September 2011 the practitioner self-prescribed Valium.
40. In September 2011 the practitioner missed a urine drug screen and misled the Medical Council by asserting she was in Queensland. During this month she self administered Oxazepam.
41. In October 2011 the practitioner self prescribed and took Stllnox on a number of occasions.
42. From May 2011 to October 2011 the practitioner's registration was again subject to practice and health conditions. However on 25 October 2011 her registration was again suspended. The suspension was not lifted, and as earlier noted, on 22 October 2014 the practitioner voluntarily surrendered her registration.
43. In November 2011, after her suspension, the practitioner self-prescribed Venalfaxine.
44. In February 2012 the practitioner was admitted to a private Sydney hospital for treatment of addiction and depression.
45. Between March and April 2012 the practitioner made enquiries about her eligibility for admission to a women's drug and alcohol rehabilitation centre. In the same month she was admitted to a Queensland clinic and came under the care of Dr Hagan.
46. In April 2012 it is asserted the practitioner was convicted for the offence of shoplifting.
47. On various dates in March, April and May 2013 the practitioner was again admitted to the Queensland clinic.

Relevant Law applicable to the Complaint

1. Complaint One asserts the practitioner is guilty of unsatisfactory professional conduct under s 139B (1) (c) of the National Law. That provision is as follows: "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.
2. Although not identified by reference to the relevant statutory provision in Complaint One sub-paragraph (ii) asserts the practitioner engaged in improper or unethical conduct in relation to the practice of medicine. Section 139 (1) (l), under which we discern this allegation is made, provides as follows: (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. …
3. Complaint Two asserts the practitioner is guilty of professional misconduct under s 139E of the National Law. That section provides as follows: 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.
4. Complaint Three asserts the practitioner has an impairment as defined in s 5 of the National Law. Impairment is defined in s 5 as follows: "impairment", in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect-- (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or …
5. Complaint Four asserts that the practitioner is not competent to practise the profession under s 139 of the National Law. Section 139 (a) relevantly provides: A person is "competent" to practise a health profession only if the person-- (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and .. .
6. Section 3 of the National Law sets out the objectives and guiding principles of the law, as those objectives and principles apply to the national registration scheme. Section 3A of the National Law, in force at the date of the hearing, sets out the objective and guiding principle to be applied by a Tribunal in New South Wales conducting an inquiry into a complaint and, if appropriate to do so, when making protective orders. The relevant parts of s 3, for the purposes of this hearing, are as follows: (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 … (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and … (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; … (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.
7. Section 3A, a NSW provision, provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
8. It is relevant at this point in our reasons that we record that protective orders made at the end of a hearing are not intended to punish the practitioner, but to protect the public (see Clyne v NSW Bar Association (1980) 104 CLR 186).
9. The Tribunal's power to make the decision sought by the HCCC, to impose a period of disqualification, and to require the Medical Board of Australia to cause a recording to be made in the National Registrar is found in s 149C (4). That provision relevantly provides: (4) If the person is no longer registered, the Tribunal may-- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.

The onus or burden of proof

1. The onus or burden of proof is that of the HCCC. It is well established, due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336.
2. In determining the level of satisfaction the NSW Court of Criminal Appeal has cautioned against the use of the term "comfortably satisfied" (see Gianoutsos v Glykis [2006] NSWCCA 137 (2006) NSWLR 539, 548-549 [51]). In considering whether or not the complaint is proved to the relevant level the discussion of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty. Ltd [1992] HCA 66(1992) 110 ALR 450 at [2] is apposite: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found' [citations omitted]

The procedural history and effect of the transitional provisions

1. Proceedings were commenced by the HCCC in the Medical Tribunal on 22 January 2013. The matter was transferred to the Tribunal on 1 January 2014. At a directions hearing held on 28 February 2014 an earlier timetable ordered by the Medical Tribunal was varied, a case conference appointed for May 2014 and hearing dates to commence on 18 August 2014 were allocated. The hearing dates took into account the practitioner's then health status. The Case Conference did not proceed in May 2014 because the practitioner was in hospital. On 28 June 2014 an application was made on behalf of the practitioner to vacate the hearing dates. The application was granted and new hearing dates for 10-12 November 2014 were fixed on the basis the practitioner would, by that date, be available to participate in the proceedings.
2. As a consequence of the enactment of the Civil and Administrative Tribunal Act, Schedule 1, Division 2, cl 3 the Medical Tribunal was abolished effective on 31 December 2013. The Medical Tribunal's functions were taken over by the Tribunal. Pursuant to the transitional provisions in the Civil and Administrative Tribunal Act (see Schedule 1, Div 3 Sub-Div 2, cl 7 (2) and (3)) the matter is now in the Tribunal for finalisation. Clause 7 (3) (b) provides the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had the Civil and Administrative Tribunal Act and the relevant amending Acts not been enacted, continue to apply. As a consequence the law to be applied is the National Law in force up to 31 December 2013.

Is it necessary for the Tribunal to conduct an inquiry?

1. Ms Tronson addressed this issue in her written submissions at [13]-[19]. She notes that she understood the practitioner would not attend the hearing (as in fact occurred) and further notes that the Tribunal may under s165J (3) of the National Law proceed with the hearing in her absence. Section s 165J (3) is the relevant section in force from 1 January 2014. The relevant section for this hearing is 167C (3). It is in identical terms to s 165J(3).
2. Similarly, in her submissions Ms Tronson refers to s 165H of the current National Law. Section 167 (2) is in broadly identical terms to s 165H. It provides as follows: No inquiry need to be conducted into a complaint referred to a Tribunal if the registered health practitioner or student who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal.
3. Mr Lynch suggested on its face the provision has no application because at the time of this hearing the practitioner was not a registered health practitioner. However, noting it was not particularly clear and not without some doubt, Ms Transom submitted that, by reason of the provision of s 139G of the National Law the term "registered health practitioner" includes a former registered health practitioner. Although ss (3) of s 139G applies to the situation in ss (2) of that section, that is, that proceedings may be taken against a formerly registered practitioner, adopting the purpose which best achieves the aims of the National Law, (see Schedule 7 cl 7) we accept that s 167C (3) applies to an unregistered health practitioner.
4. We do not therefore find it is necessary to examine with any degree of particularity the particulars in the four complaints which are conceded by the practitioner in her letter addressed to the Tribunal. We have recorded the necessary factual findings that will be relevant to any future Tribunal considering a re-instatement application (see the Council for the Bar Association of NSW v Franklin (No 2) [2014] NSWCA 428 per Meagher JA at [19]). Our concentration in these reasons is therefore focused on the appropriate period for the practitioner to be disqualified from seeking to be re-registered.

The evidence adduced on behalf of the practitioner

1. As we have discussed above the onus of proof to establish the four complaints is that of the HCCC. However, in the circumstances of this case where the practitioner has conceded all particulars of the complaint, and our primary focus is on suitable protective orders it is appropriate that we have regard to the evidence adduced on behalf of the practitioner. This evidence has particular relevance because the practitioner did not appear at the hearing. Consequently, the Tribunal did not have the opportunity to hear from her, or to assess from cross-examination her true level of insight into the serious complaints brought against her.

The practitioner's statement

1. The practitioner, by letter dated 25 September 2014 and signed by her, admitted the subject matter of the complaints brought against her. She then in the remaining paragraphs of her letter said: I am ashamed of my conduct which is the subject of the complaints. This occurred when I was significantly impaired. I acknowledge that my behaviour was inappropriate and demonstrated a lack of honesty and integrity. I not only let myself down, but I also let my profession down. I am aware that a medical practitioner must be ethical and trustworthy at all times and that there are professional values of integrity, truthfulness, dependability and compassion on which all doctors are expected to base their practice, and I did not demonstrate those values. My communication with my colleagues, the Medical Council of NSW and with Dr Anthony Samuels was not always on a truthful, dependable footing. My behaviours at that time were inappropriate and I was not a fit person to practice medicine. That is why I agreed to a suspension of my registration while I took steps to regain my health and conquer my addictions. I have found this an enormously difficult process but, with occasional relapses, I am making genuine progress. However I accept that I am currently still not competent to practice and that the appropriate order is for my registration to be cancelled …

The evidence of Dr Michael Hagan

1. Dr Hagan is the practitioner's current treating psychiatrist. He prepared four reports (19 March 2014, 26 May 2014, 13 June 2014 and 29 October 2014) which were tendered without objection on behalf of the practitioner. Dr Hagan was not required for cross-examination.
2. Dr Hagan is a consultant psychiatrist carrying on practice on the Sunshine Coast, Queensland. In his report (undated) but date stamped by the practitioner's solicitors on 19 March 2014 he notes that the practitioner was referred to him by a general practitioner and that he started treating her in December 2012.
3. Dr Hagan recorded the practitioner's reported history, including the history of her Stillnox addiction, the breakup of a significant relationship 2013 and subsequent hospitalisations where she was treated to attempt to wean her off her Stillnox addiction. He noted the practitioner recorded taking over 80 Stillnox tablets over a weekend period because she could not sleep.
4. At her first visit to Dr Hagan the practitioner reported she was not using Stillnox, benzodiazepines and narcotic medications. At that time the practitioner was in a rehabilitation facility which she planned to leave in one week.
5. In recording the practitioner's past psychiatric history Dr Hagan noted she had admissions to two Sydney clinics, and that she had undertaken regular psychological therapy and in the second year of her undergraduate medical studies the practitioner was treated for depression and prescribed Efexor. She was previously noted to have been prescribed Zoloft and, at one stage, Epilim. He also noted an earlier diagnosis of ADHD with the practitioner being prescribed Concerta "after initial treatment with Strattera".
6. Dr Hagan provided particulars of his regular consultations with the practitioner both as an inpatient and outpatient during 2013 and early 2014. In response to the question "How regularly you see [practitioner's name] and has this been stable over the course of your treatment of [practitioner's name]" Dr Hagan said: Her condition has varied during the time that I have treated her. She appears currently to be stable. She was admitted from 6/3/13 to 24/3/13 with Major Depressive Disorder, ADHD and Benzodiazepine Dependence. She reported she had used excessive Temazepam and Xanax having obtained these medications from various general practitioners over the previous month. She reported intermittent binging on these since 2007. She said that she had withdrawal symptoms including increased anxiety, sweating and blurred vision. She felt the trigger for this relapse was stressful family relationships. She said sleep continued to be disturbed, eating was erratic, and she had nausea. She had low energy and difficulty with concentration and memory. She had use of Pandeine [sic] Extra for one week some weeks prior to admission. During the Admission she reported having significant withdrawal symptoms in the early part of her admission. She attempted to obtain an extra script for Temazepam from a nearby pharmacy. She discharged against medical advice after greater restrictions were imposed as part of her admission criteria.
7. Dr Hagan went to record that the practitioner was, after this admission, involved in a motor vehicle accident which she asserted "was not her fault", that she had been involved in an altercation with her father when intoxicated with alcohol, and was asked to leave the family home. The practitioner was noted at this time to have resumed her use of benzodiazepines. Thereafter she had a hospital admission and successfully withdrew from benzodiazepine use. However, Dr Hagan reported the practitioner was very agitated about her dealings with the Medical Board at that time. He said: Since that time she has had a more stable [sic] in her social situation and has been managing living on her own. ……..There appears to be significant improvement in her overall stability since these admissions.
8. When asked to comment on the practitioner's current assessment, Dr Hagan opined: She has problems with substance dependence for Stillnox which now appears to be in remission. She has a past history of Benzopiazepines Dependence and Opiate Abuse which appears to be in remission. Her mood state appears to be stable on the current combination of medications and psychological interventions …She appears to be committed to undertaking appropriate efforts for rehabilitation with respect to the drug dependency and reports regular attendance at NA. She is attending the [name of clinic] Addictions program weekly.
9. In commenting on the practitioner's future capacity "to practice medicine and the basis on which that would occur", Dr Hagan offered the following understandably cautious opinion: [The practitioner's name] has been a practitioner of medicine but I do not have any evidence of her performance as a medical practitioner. She has indicated that when she worked as a doctor that she was able to cope with the normal pressures of this role and that she believes that she has a capacity to practise medicine in the future. The main risk to her practise of medicine would be recurrence of addiction. In the practise of medicine she has a potential access to substances of addiction, the use of which is likely to significantly affect her ability to practise medicine. This would represent a danger to her and potentially to others.
10. Dr Hagan was also asked to comment on any concerns he had about the practitioner "posing a danger to the public, in continuing to practice, once she is well and stable". He answered this question in the following manner: The major concern with [the practitioner's name] posing a danger to the public would be her own state of health. She has a risk of relapse of her mood state and relapse into addiction. When unwell her behaviour and judgement may be adversely affected by her condition. When she is well and stable she is unlikely to pose a danger to the public in my view.
11. In an updating report dated 26 May 2014, Dr Hagan explained that the practitioner had again been admitted to a clinic in April 2014 after becoming depressed and having a "binge" on Xanax and Temazepam. At this time she had suffered a fall, hitting her head, and been involved in another car accident. Although she had tried attending a Doctors in Recovery program in Sydney, Dr Hagan reported that the practitioner was socially anxious, and then engaged in "Doctor Shopping" to obtain scrips for Xanax and Tempazepam. Dr Hagan then opined: Since admission she has had a successful treatment for withdrawal from benzodiazepine medications and has been reinstated on her antidepressant and ADHD medications. She remains a current impatient and is making appropriate recovery from her recent relapse with benzodiazepine addiction.
12. He concluded his letter as follows: It is likely in my view that the hearing of the NSW NCAT has been a factor in her relapse as she becomes very distressed regarding this matter. It would at this stage seem likely however that she will recover to be well enough to give evidence at the NCAT in Sydney in the 3 days commencing 18 August 2014.
13. We pause to note that an application was made on behalf of the practitioner to vacate the hearing dates commencing on 18 August 2014. At this application the practitioner's solicitors relied on a further report of Dr Hagan undated received by the solicitors on 13 June 2014. At that time the practitioner remained an inpatient in the clinic and was considered unfit to participate at the hearing.
14. Dr Hagan's final report was received by the practitioner's solicitors on 29 October 2014, that is, very shortly prior to the new hearing days. He noted that the practitioner was an inpatient between 18 July 2014 and 21 August 2014 and that "she continues to be affected by the presence of a mood disorder of Major Depressive Disorder and anxiety symptons with a Generalized Anxiety Disorder". After noting that the practitioner had obtained alternative accommodation and shown steady improvement in her condition he opined: I am concerned about the effect on her emotional state of publication of findings of the NSW NCAT. I understand she has decided to voluntarily surrender her registration as a medical practitioner at this time given her state of health. Publicity of any judgment against her is likely to put her at risk of deterioration in her mood state as she remains in a vulnerable state emotionally and does not retain the normal resilience that might be expected from someone who is not suffering from the emotional factors which are currently affecting her.

The solicitors' correspondence

1. It is appropriate that we refer briefly to the correspondence forwarded to the HCCC by the practitioner's solicitors and relied on in these proceedings.
2. In their letter dated 28 October 2014 the solicitors, having noted that the practitioner had admitted the complaints, and that AHPRA had removed her name from the register, said: We note that recently the HCCC has sensibly sought to withdraw complaints in the matters of Dr Khan, Dr Campbell and Dr Manners. We consider the exercise of proceeding to a hearing is pointless and unnecessary. We fail to see the public interest in doing so. The costs of such hearing should be borne by the HCCC as there is no public interest to be served by pursuing the hearing of the Complaint in the circumstances. The Complaint involving our client relates solely to her impairment and there are no patients or members of the public who have been named or involved in the subject matter of the Complaint. There is no prejudice to the HCCC in the event the Complaint is withdrawn and dismissed.
3. There is no doubt that it may, in certain circumstances, be appropriate for a Tribunal to determine it is not in the interests of the public for a complaint to be heard (See Schedule 5D cl 12). Each case will turn on its own facts and circumstances. Of course admissions, appropriately made, may also well be relevant to the question of costs.
4. Two matters appear to us to distinguish the facts in this matter from those in Health Care Complaints Commission v Khan [2014] NSWCATOD 83, Health Care Complaints Commission v Manners [2014] NSWCATOD 159 and Health Care Complaints Commission v Campbell [2014] NSWCATOD 107. In each of these matters the Tribunal found it was not in the interests of the public for a hearing to be held, and consented to the withdrawal of a complaint referred to it by the HCCC.
5. In each of the cited cases the practitioner concerned not only conceded the complaint, but signed a statutory declaration to the effect that he/she would never again seek to be registered. The practitioners were at an age, and/or state of health where it was highly unlikely they would ever again seek to practise medicine. Thus, no issue of the safety of the public in the future arose. In this case the practitioner chose, whether by ill health, or other reason or reasons, not to appear before the Tribunal, or provide any evidence about her future intentions to carry on practice. The giving of reasons in this matter are necessary to provide factual findings in order that a future Tribunal dealing with a re-instatement application can, in determining such application, assess risks to patient safety having regard to the principles in s 3 and s 3A of the National Law. Those sections are set out earlier in these reasons.
6. In the circumstances of this case, had an application been made under Schedule 5D cl 12 of the National Law for the complaint to withdrawn, it is likely that we would not, on the facts established before us, have found it to be in the interests of the public to consent to such an order.
7. The second relevant factor is the assertion by the practitioner's solicitors that the complaint as agitated by the HCCC "relates solely to impairment". This is but one of the four complaints agitated by the HCCC against the practitioner and its relationship to Complaints One and Two is discussed later in these reasons.

Dr Anthony Samuels

1. In addition to the outcomes of the various Impaired Registrant's Panel hearings, and a statement from the psychiatrist in charge of the Mental Health Unit at the public hospital where the practitioner was employed as a Registrar, the HCCC relied on a number of reports and documents including reports by Dr Samuels. It is unnecessary, given the practitioner's concessions, that we refer to each of these documents. For completeness, we do refer to Dr Samuels' reports noting however the practitioner's concession that she was not always frank and honest in her reporting to this specialist.
2. Dr Samuels' five reports cover the period September 2007 to 2011. In his report dated 21 July 2011 Dr Samuels' poignantly opined: [the Practitioner's name'] self-sabotaging and self-destructive behaviours are greatly concerning and unless some radical shift occurs it does seem that she is on a trajectory that will ultimately end her medical career, something which is one of the few positive structures and frameworks in her life that allows her to gain some sense of self and self esteem. I am aware that these repeated breaches just cannot be condoned but at the same time it is very sad to see someone who has potential and has been making some gains compounding and exacerbating what is already a fraught situation. Unfortunately this pattern of self-destructive and self-defeating behaviour in the context of denial and probably a degree of dissociation appears to be a not uncommon response to stress, loneliness and abandonment.
3. At this point in time, Dr Samuels noted it was imperative that a senior drug and alcohol specialist be involved in the practitioner's care. He also noted that the practitioner would need to develop "strategies to ensure that once she is on the brink of a relapse or a breach of her conditions she has some way of averting this course and certainly not compounding it".

Conclusions and Findings in respect of the four complaints

Complaint One and Two

1. Given our conclusions in respect of the application of s 167(2) our reasons in respect of this complaint are brief. However, we feel it is important that we do not gloss over the practitioner's many and serious breaches of the conditions to which her registration was subject.
2. It is clear from the reports of the various Impaired Panel Hearings that the panel members repeatedly stressed to the practitioner the importance of strict compliance with all conditions imposed. We agree with and adopt the the findings of the s 66 inquiry panel (Dr Mary-Anne Friend and Professor Helen Lapsley) in their report of 19 October 2009 where they said: [The practitioner] has indicated that failure to attend for urinalysis was the result of work commitments. The Board cannot accept work commitments as a reasonable explanation for consistent failure to attend for urinalysis. The practice of medicine is a privilege and not a right, and conditions to which the doctor's registration is subject are in place to allow a doctor with impairment to continue to practice medicine whilst providing a measure of assurance to the public that the impaired practitioner is safe to do so. As such the statutory obligation to comply with conditional registration is of an overriding priority…
3. The practitioner not only breached conditions imposed on her registration, but she abused the trust of fellow professionals. Her actions in respect of her unauthorised, improper use of her supervisor's prescription pad were serious, deliberate violations of the professional trust her supervisor reposed in her. Her lack of frankness with pharmacists also demonstrated a disregard for her professional responsibilities to that profession. That lack of frankness was replicated in her misleading statements to the Medical Board, and to Dr Samuels. The latter is regarded by us as particularly serious. The practitioner was well aware that the Medical Board, and subsequently the Medical Council placed significant reliance on the opinion of Dr Samuels. As such the practitioner could have been under no doubt that her complete honesty with this specialist psychiatrist was imperative.

Complaint Three

1. It is appropriate that we briefly address this complaint and its relevance to Complaints One and Two notwithstanding the practitioner's concession she presently is impaired. This is because it is necessary to consider what, in some cases, may be a "blurry" line between conduct which is directly attributable to a condition causing impairment affecting a practitioner, and deliberate unprofessional conduct associated in some measure with a practitioner's impairment, or perhaps, unrelated directly to that impairment. This is best explained by reference to the decision of Basten JA in Reimers V Health Care Complaints Commission [2012] NSWCA 317 at [11] to [14]. In that case a practitioner who suffered drug and alcohol addictions argued that, by reason of his impairment, the Medical Tribunal was in error in finding he was capable of professional misconduct.
2. Basten JA explained the two propositions advanced by the practitioner in Reimers, now set out below, could not be maintained: 1. that conduct which results from impairment could not be professional misconduct; or 2. that it is manifestly unreasonable to treat misconduct which is the result of an impairment as professional misconduct warranting de-registration (referred to in the National Law as "cancellation") of a practitioner's registration.
3. In respect of the first proposition his Honour said: Gross, repeated, incompetent medical practice does not cease to be such because it is caused by an addiction to alcohol, heroin or other drugs. This was not a case where the practitioner was held to be unaware of his condition or its consequences…
4. In respect of the second proposition Basten JA said: There is no doubt that addiction is a condition which may, perhaps should, evoke sympathy. The degree to which a criminal offence is caused by a mental illness, including addiction, may properly be reflected in the sentence imposed. Nevertheless, "protection of the community" is a relevant sentencing principle and may, within limits of proportionality identified by reference to the seriousness of the offence, extend rather than restrict the sentence: The Queen v Veen [No 2] [1988] HCA 14; 164 CLR 465. But the underlying purpose of a disciplinary order of deregistration is not primarily punitive, but protective. That is not to impose some artificial dichotomy of punitive and protective orders, contrary to Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129. Rather, it is to recognise the primary object of the Medical Practice Act which was "to protect the health and safety of the public by providing mechanisms designed to ensure that ... medical practitioners are fit to practise medicine": s 2A(1). Misconduct which could be classified as professional misconduct may properly lead to deregistration. In short, the applicant's submission that impairment cannot be professional misconduct is true, but only in the sense that an impairment is not conduct. An impairment may manifest itself in conduct or, to reverse the relationship, an impairment may explain particular conduct in part or in whole. There is no substance in the complaint that the decisions of the Tribunal on the various complaints were manifestly unreasonable. That being so, the challenges to the deregistration order must also fail.
5. While in this case there is no evidence relied on before us that patient care was compromised by the practitioner's conduct, she ignored the careful and repeated warnings of the Impaired Registrant's panels about strict compliance with conditions of practice. She acted most unprofessionally in misleading pharmacists and other professionals particularly Dr Samuels and the Medical Board and Council. Her use of her supervisor's prescription pads to self prescribe was a deliberate act knowingly made and involved a gross breach of professional trust. Her shoplifting conviction in 2012, whilst not directly attributable to the practice of medicine, shows disregard for the standards expected of a doctor, is a breach of the National Law and involves criminal behaviour. The practitioner's behaviour as particularised above, although its genesis is her addiction, is analogous to "gross, repeated, incompetent medical practice".

Complaint Four

1. Little needs to be said about this complaint. The practitioner freely acknowledged at the date of the hearing she was not fit to practise medicine.

Protective Orders

1. The purpose of a protective order made at the conclusion of disciplinary proceedings is not primarily intended to punish the practitioner although at times it may have such a consequence because amongst other matters, it can result in adverse publicity, loss of reputation, status and income and affect personal relationships. Rather, the purpose of such an order or orders, is to protect the health and safety of the public.
2. In this case the practitioner has herself realised the consequences of her actions, her impairment and present unfitness to practice. She has acted responsibly in voluntarily surrendering her registration. In those circumstances our focus is on an appropriate period of disqualification.
3. The HCCC seek a period of two years disqualification. Mr Lynch candidly told the Tribunal he did not have any instructions about a disqualification period. But he pointed out that the practitioner has not been able to practise medicine since she was suspended in 2011 and a two year disqualification period would have the effect she would be out of practice for five years by the expiration of the disqualification period. While appropriately not minimising the practitioner's real and substantial health difficulties, he referred us to the practitioner's present treatment regime and her improved status under the care of Dr Hagan. He pointed out that Dr Hagan was not required for cross-examination.
4. The Tribunal raised with Ms Tronson the fact that the evidence to support a two year period of disqualification (as distinct from any other period) was scant. We did not have the benefit of any up to date psychiatric evidence adduced by the HCCC which may have informed our determination.
5. Ms Tronson focused her submissions on the fact the practitioner did not attend the hearing to enable us to gain true insight into her understanding of her conduct and submitted, by reference to authority, that we would be entitled to draw an inference that any explanation she could give would be unfavourable to her (submissions at [18]). Further, in her submissions at [50] Ms Tronson submitted we should take into account that the practitioner has provided no evidence about her future intention in respect of the practice of medicine, that she provided little evidence of her understanding of her condition, including any progress, no evidence about how she proposed to avoid relapse, or how she might practise medicine safely. She noted the practitioner had not provided any evidence about engaging in continuing medical education courses since her suspension in 2011. We accept the cogency of these submissions and have taken them into account.
6. The practitioner is a relatively young woman who has completed her expensive tertiary qualifications, her period of residency and gained two Registrar positions. She is clearly intelligent, and if able to overcome her vulnerabilities, has much to offer to the public as a medical practitioner.
7. She has acted upon Dr Samuels' recommendation that she be treated by a senior specialist, and has been under the continuous care of Dr Hagan since 2012. While he is cautious about her progress, his last report does disclose some improvement in the practitioner's abstinence from her addictions. He also refers to the negative impact of these proceedings on the practitioner's psychological health.
8. As a result of the recent amendments to the National Law (see Health Practitioner Regulation Legislation Amendment National Law Act 2014 (NSW)) by the time the practitioner seeks re-statement, if she chooses to do so, it will be necessary for her to apply to this Tribunal for a re-instatement order under s 163. To satisfy a Tribunal that she should be re-instated to register with or without conditions, she will, at that time, need to adduce cogent evidence of her rehabilitation and strategies to avoid relapse. She will also need to demonstrate evidence of continuing professional development.
9. We have taken into account each of the submissions made by Mr Lynch and the evidence of Dr Hagan. We have compared the former evidence with the paucity of evidence adduced by the HCCC to support a two year period of disqualification, as distinct from any other period. We have also had regard to the high hurdles the practitioner will be required to overcome to obtain a re-instatement order. Balancing each of these matters we are not satisfied that the HCCC has established a two year disqualification period is necessary. We are satisfied a period of 18 months disqualification is appropriate.

Non publication order

1. On 7 November 2014 the Presiding member of the Tribunal made an order, pending further order, by consent, in chambers restricting the publication of the practitioner's name in the list of hearings published by the Tribunal. On 10 November 2014 an application was made on behalf of the practitioner that the Tribunal extend the non publication order to these reasons for decision and the evidence in the proceedings. That order was opposed by the HCCC on the basis that the practitioner's position was no different to any other practitioner coming before the Tribunal.
2. It was further submitted on behalf of the HCCC "that the public in general, as well as potential future patients as well as future employers have the right to know about her involvement in these proceedings".
3. The relevant authorities to be considered in such an application are discussed in the recent Tribunal decision of HCCC v Vo [2014]NSWCATOD 127 at [181-185].
4. We have already noted that Dr Hagan was not required for cross-examination. His evidence is therefore unchallenged. While not extensive, his reports summarised earlier in these reasons disclose that the practitioner is a psychologically vulnerable young women. In an email forwarded to the practitioner's solicitors dated 7 November 2014 that was tendered in evidence before us Dr Hagan said: I write to elaborate my concerns regarding the effects on [the practitioner] of findings against her. She has on numerous occasions expressed her feelings of shame and guilt regarding her behaviour in relation to her addiction. She has expressed suicidal thoughts in the past during the time that I have been treating her. It is my view that she has difficulty in controlling her behaviour when emotionally distressed. I believe she is likely to react adversely to publication of findings against her and there is likely to be a risk to her safety in this circumstances including the risk of suicide.
5. Accepting as we do Dr Hagan's unchallenged evidence, we found there were special circumstances warranting departure from the principles of open justice referred to in the authorities.
6. In reaching this conclusion we have carefully balanced the principles of open justice and the right of the public to know about the practitioner's involvement in disciplinary proceedings with the potential of risk to this young woman's life. We have also taken into account that, notwithstanding the practitioner's name will be anonymised as a result of the non publication order, the public interest of future potential patients or employers is ensured by the recording of the Tribunal's orders, but not its reasons, on the publicly available register which may be searched online.

Relevant statutory provisions and legal principles

1. The relevant principles to be applied in respect of costs applications in disciplinary proceedings are subject of considerable appellate authority (see Ohn v Walton (1995) 36 NSWLR 77).
2. Schedule 5D cl 13 (a NSW provision of the of the National Law) provides: The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other of person entitled to appeal (whether as of right or because leave to appear has been granted) at any inquiry or an appeal before the Tribunal to pay the costs to another person as decided by the Tribunal.
3. Clause 13 (2) and (3) provide a regime for obtaining a costs certificate from the Tribunal, and for the costs order to be enforced and judgment obtained in the District Court.
4. The question of the power to award costs is subject of discussion by Meagher JA, with whom Basten and Emmett JJA agreed, in Health Care Complaints Commission v Do albeit in the context of an appeal under s 162A of the National Law. After referring to the power in s 175B of the National Law which has national application by reason of s 201, his Honour noted, in respect to the power to award costs: That is a provision having national operation pursuant to s 201 it should not be subject to local rules. It should be treated as conferring an unfettered discretion on the Tribunal.
5. His Honour then referred to the decision of the Court of Appeal in Health Care Complaints v Philipiah [2013] NSWCA 342 as follows: In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event": at [42]. Noting that the mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule", the Court also accepted "that there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings" including the possibility that the Commission was only partly successful, referring to Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]. Lucire dealt with a provision in the Medical Practice Act 1992 (NSW), Sch 2, cl 13, which also conferred an open power. Whatever the true extent of the power conferred on this Court in respect of costs of this appeal, it is appropriate to adopt the same approach as would have been adopted in the Tribunal, namely that there was an unfettered discretion, although the compensatory principle militated in favour of a successful party obtaining an order for costs.
6. In this case, the practitioner's actions in conceding the Complaint, albeit only reasonably proximate to the hearing date, resulted in the shortening of the hearing time. We have already discussed why we consider on the facts of this case it can and should be distinguished from HCCC v Khan, HCCC v Manners and HCCC v Campbell. We also consider as a relevant fact the practitioner's action in voluntarily surrendering her registration thus ensuring the health and safety of the public.
7. Mr Lynch submitted that as a result of the practitioner's actions we should not make any costs order with the parties paying her or its own costs. We are unable to agree with that submission. The proceedings were necessitated by the practitioner's conduct and the complaint was properly brought. But delays in and adjournments of the proceedings were a direct result of the practitioner's admissions to the Queensland clinic to treat major depression as well as Stillnox abuse.
8. Balancing the general principle of the successful litigant receiving a compensatory costs order, and the practitioner's action in admitting the complaint prior to the commencement of the hearing and surrendering her registration, we find the appropriate order to be that the practitioner should be required to pay 50 per cent of the costs of the HCCC as agreed and failing agreement liberty to restore before the Tribunal.

ORDERS 1. The Tribunal notes that had Ms XC (formerly Dr XC) (the practitioner) been registered at the date of these orders it would have cancelled her registration. 2. The Tribunal notes that had Ms XC (formerly Dr XC) (the practitioner) been registered at the date of these orders it would have cancelled her registration. 3. The practitioner is disqualified under s 149C (4) (b) of the Health Practitioner Regulation National Law (the National Law) for a period of 18 months from the date of these orders from applying to be re-registered on the Registrar of Medical Practitioners maintained by the Medical Board of Australia in conjunction with the Australian Health Practitioner Regulation Agency (AHPRA). 4. The Registrar, Occupational Division, NSW Civil and Administrative Tribunal is directed to forward a copy of these orders together with details of the practitioner's name to AHPRA with a request that it note orders 1 and 2 of these orders on the Register as required under s 149 (4) (c). 5. The practitioner shall pay 50 per cent of the costs of the HCCC as agreed and failing agreement liberty to restore before the Tribunal. 6. Pursuant to Schedule 5D cl7 of the National Law and s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) that publication of the name of the practitioner other than to the parties to the proceedings, the Medical Council of NSW and the Medical Board of Australia is prohibited 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: 23 February 2015