Larden v Health Care Complaints Commission

NCAT Occupational|2018-04-04

Respondent: Health Care Complaints Commission File Number(s): 2017/00340261

Summary

The registration of the applicant Dr Dale Larden as a pharmacist was cancelled by the Pharmacy Tribunal on 25 May 2009 (the cancellation order).
Dr Larden seeks a review of the cancellation order pursuant to s 163A of the Health Practitioner Regulation National Law (the National Law). He asks the Tribunal to make a reinstatement order. A reinstatement order is an order that a person may be registered in accordance with Part 7 of the National Law if: 1. the person makes an application for registration to the relevant National Board and 2. the National Board decides to register the person: s 163B(3).
The respondent Commission has adopted a neutral position in relation to the application. It says that the application should be approached with great caution, and may be premature. It says that if the Tribunal does reinstate Dr Larden, it should only do so if conditions are placed on that reinstatement.
For the following reasons, we have decided to not to make a reinstatement order.

The applicant's evidence

The applicant relies on a short statement dated 18 January 2018, two work references and a letter from his former treating Addiction Physician, Dr Swift.

The applicant's statement

Dr Larden's statement to the Tribunal is brief and may be set out in full: Outlined below is a statement of facts in relation to the previous eleven years of my life, including the nine since my appearance before the Pharmacy Board in March of 2009. By way of background, during the years of 2005 and 2006 circumstances within my personal and professional life had completely, and seemingly irreversibly, unravelled. In February of 2005 I suffered a major accident at home, falling off the roof and resulting in a communitive, compound fracture of the right ankle. This required a series of operations and a long recovery period. The use of opioid based pain killers during this period certainly did not help my ongoing and underlying drug dependency, but was in truth an exacerbation rather than a causative event. From early 2006 I was not working, instead receiving a disability support pension. At around this time I had also commenced a methadone based drug-withdrawal program at Clinic 36, under Dr Gary Swift. In April 2007 my marriage of fifteen years ended in divorce. In July of 2007 I moved into separate, shared accommodation in Randwick. In 2010 I took over the lease on this unit. From the end of 2007 I began performing volunteer work four days per week with Meals on Wheels at Kingsford. In July of 2008 I was employed as a laboratory supervisor within the School of Optometry and Vision Science at the University of New South Wales. I continue to be employed at the University to this day and have since been promoted to laboratory manager. Within this role I am also Chair of the Health and Safety Committee and Chief Warden for the building in which the School of Optometry is Housed. I am a member of the School Executive Committee and the School Board. I have recently been installed as project officer for a $3.5M expansion of the School. During this approximately 10-year period of employment at the university, I gradually began to reduce my methadone dose. In late 2012 I ceased methadone altogether. I have not taken any opioid derived medication since this time. During my methadone withdrawal program, on March 17th, 2010 I was involved in a motor vehicle accident while travelling to work. Consequently, I sustained a compound fracture to the right femur and a fractured pelvis. I was off work for a period of 10 weeks. I did not request, nor was I prescribed any additional opioid based medication for the pain associated with this injury. My methadone dose was however increased slightly for a period of months which resulted in a delay to the complete cessation of the program. Personally, I have been in a new long-term relationship for around three years. I have recently taken out a mortgage on a house in the New South Wales mid-west. I am gradually renovating this house to make it more liveable. Essentially with discipline and hard work I have, in the last ten to twelve years, managed to turn my life around to end up in a much better place. Irrespective of the outcome of this process, it is heartening to know that some things which seem irreversible, aren't necessarily so.

Oral evidence at the hearing

Dr Larden commenced his oral evidence by telling the Tribunal that, to use his words, he has "rebuilt" his life. He said that he "hasn't looked back", since he completed his methadone programs. He is contemplating, in the long term, a return to pharmacy, possibly working in the country, where he has purchased a property. He has been in a stable long-term relationship for the past three years.
Mr Shah, of the Commission, conducted a lengthy cross-examination of Dr Larden. Relevant matters of discussion involved the following:

he had not worked in pharmacy since 2004;
he had not kept up any connection with the practice of pharmacy;
he did not apply for reinstatement or reregistration in 2012 when he first could have, as he was "not ready";
his interests in pharmacy had not diminished, and he missed the scientific aspects of pharmacy;
he was asked about Dr Samuels' remarks at [73] of his report, set out below, namely that he wanted to "close the loop". He said that "whatever way it falls" (which the Tribunal understood to mean the ultimate decision), "it's about closure";
as to telling Dr Samuels that he wanted to "right the wrongs", he said that he was referring to his family, particularly his parents who were disappointed;
when asked what had changed in his circumstances over the last nine years, Dr Larden referred to now being in a stable relationship, and that he had matured, and he was through what he described as a very dark period;
Dr Larden was extensively questioned about his drug addiction. He gave clear and direct answers. He conceded that he was a drug addict, although he stated that addiction was a complex issue. He said that one of the major contributing features was the breakdown of his marriage. He also said that there were problems with the drug laws, for instance the ostracisation and social stigma associated with attending methadone clinics, that a lot of the laws caused the problems;
Mr Shah put to him various statements that he made to the Pharmacy Tribunal. Dr Larden conceded that those statements that he remembered were wrong;
he had never read the decision of the Pharmacy Tribunal as he did not want to be reminded of the past. He said that he knew the reasons for the decision (that is cancellation of registration based on his own addiction), and was comfortable with that decision;
he agreed that he had never seen a psychologist, as recommended by the Pharmacy Tribunal, and that perhaps it would have been better if he had attended;
he said that perhaps he "should have reached out more";
he agreed that he told Dr Samuels, when discussing the need for formal therapy, that he said "only I can stop it". Dr Larden said that what he meant was that he was the one who decided to stop taking drugs. He was on a disability support pension and could have continued on the methadone program, but he decided to get a job; He agreed that this was achieved with the assistance of others;
Mr Shah asked what assurances he could give the Tribunal that if he again underwent life stressors, he would not "go it alone", and not seek out help. Dr Larden said that it would not be the same stresses. At the time he was in his 20s, married and undertaking a PhD. Now he has processes in place to help regulate stress, including exercises and martial arts;
when asked if he agreed that over the last 8 or 9 years he had not addressed the concerns of the Pharmacy Tribunal. Dr Larden said he lived with the ramifications of his actions daily. He said that he did not understand himself why it happened, and that it was out of character.
he agreed that Dr Samuels' statement that he may not have full insight was "probably true".

Ultimately, Mr Shah asked Dr Larden why he wanted to return to pharmacy, especially as he had once said that he was "always bored with retail pharmacy". Dr Larden admitted he had made that statement, but that this was at a difficult stage of his life. Dr Larden agreed with Mr Shah's suggestion that there was nothing in his written materials before the Tribunal that stated that that he had any sort of plan. He said that, given his history, he should either be dead or in gaol. In the future he will seek outside help to deal with stress.

References

The applicant relied on two work references. The first was prepared by Associate Professor M Jugnhans. She has known Dr Larden for ten years as his Supervisor at the School of Optometry and Vision Science at the University of New South Wales where Dr Larden is employed as a Laboratory Supervisor. She provides a very positive reference in respect of Dr Larden's work and duties at the University and concludes: [Dr Larden] is completely trustworthy, punctual and reliable. [Dr Larden] is an amiable person who gets on well with everybody and happily works in a team. The students think he is 'cool' and he champions their cause wherever possible. I have never heard a bad word said about [Dr Larden] since he commenced work at UNSW, indeed, there has only been praise with abundant use of the superlative. We would be very sad to see him go.
Associate Professor Jughnans was briefly cross-examined. She confirmed and amplified the matters set out in her reference.
The second reference was prepared by the Head of the School of Optometry and Vision Science, Professor Fiona Stapleton. She confirms Dr Larden's employment and says that Dr Larden is a valued member of the School staff, and that his performance has been exemplary.

Evidence of Dr Gary Swift, Addiction Physician

Dr Swift is an Addiction Physician. He initially treated Dr Larden on a pharmacotherapy program from 2006 to mid-2012. After ceasing his pharmacotherapy, Dr Larden attended for follow-up CBT sessions over the end of 2012.
Dr Swift states that Dr Larden's Urine Drug Screen tests for 2012 and on 30 November 2017 when Dr Larden returned for review were all "Clean" for extraneous drugs. Dr Swift has been informed by Dr Larden that he is productively employed as the Manager at the Optometry Laboratory at UNSW, that he is in a supportive long term relationship, and now leads a drug-free life.
Dr Swift attached Urine Drug Screen results for 1 December 2017, which shows that methadone metabolites, opiates, amphetamine type substances, Benzodiazepines, Cannabis Metabolites and Cocaine Metabolites had not been detected.
Dr Swift gave some brief oral evidence to the Tribunal. He said that he had not reviewed Dr Larden in the period 2012 to 2017.
He confirmed that he supported Dr Larden's application for reinstatement, but agreed with the caveats set out by Dr Samuels. Dr Swift thought, and had always thought, that Dr Larden would benefit from psychological counseling, in addition to relying on his own strength of mind to deal with his addiction.
Dr Swift agreed with Dr Samuels' opinion that Dr Larden's "problem of prescription drug use" as being in remission. He said that he "entirely agreed" with Dr Samuels' conclusion in par [94] of his report (set out) below, namely that:

Dr Larden did not have full insight into the evolution of his prescription drug addiction;
Dr Larden was not entirely reassuring in terms of relapse prevention that this is something he will need to focus on with a drug and alcohol specialist; and
Dr Larden's plans to return to pharmacy seem to be more related to some form of "closure", and his actual return to work plan remains somewhat vague and will need to be more clearly defined.

Evidence of Dr Samuels

Amongst materials relied on by the Commission, the Commission in particular relied on the report of Dr Samuels of 23 February 2018. At [73], after setting out Dr Larden's history, Dr Samuels states: As outlined above, Dr Larden has not worked in Pharmacy since 2004. He said things are good at the university. He has had no relapses and no desire to use. He does not attend any support groups, psychiatrists or psychologists. He does not feel the need to. He said he is quite happy with his life. He is quite content working at the university. He is not really sure what he wants to do in pharmacy; perhaps retail pharmacy and indicated he might like to do locums in the country. He also raised the possibility of working in academic pharmacy. He said that he basically wants to get re-registered to "...close the loop" and "...right the wrongs".
In relation to Dr Larden's mental state on examination, Dr Samuels stated: Mental Status Examination 74. Dr Larden was wearing jeans and a T-shirt. He had curly, dark hair. He wore a necklace. He looked quite fit. He had a moustache and goatee beard. He did not appear currently depressed or anxious. He denied ever experiencing psychotic symptoms or mood elevation. He has never self-harmed. 75. I asked Dr Larden what would prevent relapse at this point. He said: "I'm a different person now in a different situation. I have learnt a lot about myself in the last twelve years." 76. I questioned him about whether he had had any formal therapy during this period and he indicated he had not. He said: "Only I can stop it." 77. I asked Dr Larden how he would know he was at risk. He said: "I just wouldn't go there. I don't think I have an addictive personality. I have an obsessive-compulsive personality." I asked him about this and he said that by this he meant that he was focussed on cleanliness and organisation but those were traits that were present in many successful people. 78. I asked Dr Larden what the plan was. He said he would like to go back to pharmacy or academia in pharmacy. He said he had bought a house in Rylstone and would like to move out of Sydney ultimately and do locum work in the area. He said: "I want to close the loop. Give me a chance to right the wrongs. I want to close that circle. I would be interested in a career in Drug and Alcohol myself, until you've been in that position it's hard to empathise." 79. I asked him how working in Drug and Alcohol would fit in with getting registered as a pharmacist. Again he said: "I'm not sure but there are a lot of other pharmacists and doctors in that position."
It is convenient to set out Dr Samuels' relevant opinions stated at the conclusion of his report: Q5. Dr Larden's current treating practitioners and treatment, including whether in your opinion Dr Larden's treatment is adequate for his condition. 84. He is, at this point, only under the care of a GP, Dr Bill Kefalas. At this point his treatment seems to be adequate but if he were to return to a pharmacy role I would want more stringent oversight. Q6. Dr Larden's current medication, alcohol and recreational drug use, if any. 85. He is not on any regular medication. He denies recreational prescription drug use. He does drink alcohol slightly outside Australian Drinking Guidelines with a binge pattern once a month and drinking one or two standard drinks at least four times a week. Q7. Your mental status examination of Dr Larden. 86. I can find no evidence that he is currently depressed or anxious, suffering from psychosis nor a mood instability. His self-report suggests that he is in established remission. He indicates that he has learnt a lot about himself in the last twelve years and does not feel that he is at risk of relapse. Dr Larden was not able to give me very clear reasons as to why these problems were behind him nor a very clear understanding of how these problems began, except he did describe the context in which they started and the fact that he had an opportunity to use opiates. His plans in regard to pharmacy are somewhat ill-formed and I did make clear to him that I did not think the idea or working in locum pharmacy in the country would be an ideal starting point. Dr Larden is also aware that he has not worked in pharmacy for a very prolonged period and he would need to meet some educational requirements Q8. Please set out your comments and conclusions concerning any current drug addiction or dependence for Dr Larden. 87. At this point I would his problem of prescription drug use as being in remission. I do think that he is drinking alcohol slightly outside Australian Drinking Guidelines. Q9. Your diagnostic conclusion for Dr Larden. 88. He has a problem of Opiate Dependence, Benzodiazepine and Stimulant Misuse. All of these problems seem to be in remission. He could be regarded as having an Alcohol Use Disorder in that he is drinking slightly outside guidelines. Q10. Whether in your opinion Dr Larden is impaired as defined by Section 5 of the Health Practitioner Regulation National Law . . . In addressing this question, please comment on the following: a) Whether Dr Larden is at risk of relapse concerning a substance abuse disorder, depression, or other condition; 89. He does seem to be in established remission but I would regard him as having some potential to relapse from his opiate use if he were in a situation in which he could access them. b) If so, please explain the risk of relapse and any triggers you have identified; 90. The major risk of relapse would be opportunity and access to opiates. Q11. Your treatment recommendations for Dr Larden. 91. If he is to return to pharmacy I do not think it is adequate that he is solely monitored by a general practitioner. I think he should continue under a drug and alcohol specialist and I think it would be important that some form of monitoring in the form of urine drug testing occurred on a regular basis. Q12. Dr Larden's intentions for future employment. 92. At this point his intentions are a little unclear but he seems to be veering towards a career in retail pharmacy although has also raised academia and something to do with drugs and alcohol. Q13. Whether in your opinion Dr Larden is fit to return to work as a pharmacist and, if so, whether there are any restrictions or treatment conditions which you consider should be considered. 93. He certainly should have conditions imposed on his registration if he is to return as a pharmacist and these should include monitoring and supervision conditions as well as health conditions which include regular contact with a drug and alcohol Specialist and urine drug screening. If the decision is made to return his registration, Dr Larden would need to be reviewed once he had a specific role in mind and then various conditions could be tailored to suit that intended role. Q14. Any other comment based on your assessment you would consider relevant to the Tribunal's assessment of Dr Larden's application for the return as a registered pharmacist. 94. I am not sure that Dr Larden has full insight into the evolution of his prescription drug problem although he is very clear about the context in which this situation arose and the fact that opportunity was a factor. He was not entirely reassuring in terms of relapse prevention and I think that this is something he will need to focus on with a drug and alcohol specialist. At this point his plans to return to pharmacy seem to be more related to some form of "closure". His actual return to work plan remains somewhat vague and will need to be more clearly defined.
Dr Samuels attended the hearing. He too confirmed and amplified the matters set out in his report. In relation to his comment that Dr Larden lacked insight into the evolution of his prescription drug use, he explained that he lacked insight of any impairment and an understanding of the risk factors and the need for advice. Dr Samuels said that the lack of a relapse plan was a concern. As to his opinion that Dr Larden's plans were ill-formed, Dr Samuels explained that Dr Larden's explanations were somewhat philosophical, and that Dr Larden had not really thought about how to achieve his aims. Dr Samuels explained that there was always a risk of access to addictive medications. As to a lack of insight. Dr Samuels also considered that Dr Larden's understanding was superficial, with no desire or curiosity to find out about himself.
Dr Samuels maintained his strong view that conditions would be necessary were Dr Larden reinstated and that he should receive treatment and counseling from a psychologist or psychiatrist with expertise in addiction, and that a relapse plan be prepared.

Principles

The Commission accurately sets out the applicable principles in its written submissions. To that list may be added the principles set out in Scully v Health Care Complaints Commission [2013] NSWNMT 7 which we summarize as follows: 1. the applicant bears the onus of proving that he is a fit and proper person to be engaged in the profession of nursing as an endorsed enrolled nurse (see [41] and the authorities there referred to); 2. the standard of proof to be applied by the Tribunal is the civil standard of proof, the balance of probabilities; Briginshaw v Briginshaw (1938) 60 CLR 336; 3. the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction is exercised is for the protection of the public (see [47] and the authority there referred to); 4. the power to reinstate should "be exercised with great caution and only upon solid and substantial grounds" (see [48] and the authority there referred to); 5. there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. The public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance (see [49] and the authority there referred to); 6. in making an assessment of the applicant's worthiness and reliability for the future the Tribunal may draw inferences from what has happened in the past and, in particular, what led to their being removed from the Register. At [50] the Tribunal referred to In Re Jason Martin [2010] NSWMT 13 where the Medical Tribunal pointed out it is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". That Tribunal noted the difficulty associated with predicting how a practitioner would behave in the future and remarked that "the decision in the particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant".
Finally, we note however that an objective and "guiding principle" of the national registration and accreditation scheme provided for by the National Law is the protection of the public through ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)). Furthermore, in all applications in which the Tribunal in NSW is involved, the protection of the health and safety of the public is the paramount consideration (see s 3A).

Findings and Consideration

Dr Larden was born on in 1970, obtained a Bachelor's Degree in Pharmacy in 1992 and a PhD in Pharmaceutical Chemistry in 1995. He was first registered as a pharmacist in 1992.
Dr Larden started taking Panadeine tablets for headaches in 1991 following life pressures, but in 1992 started to extract codeine from his tablets and commenced his addiction. He continued to rely on codeine through various life stressors and in 1993 he commenced working part-time as a pharmacist.
During the course of his duties at the Health Insurance Commission in about 1999, Dr Larden said he had "a problem" with his use of medications. He then obtained Endone tablets from friends working in pharmacies in 1998, attended a pain clinic at Prince of Wales Hospital, exhibited drug-seeking behaviour, worked at other places, continued his extraction of codeine until he realised it became ineffective and started to obtain access to oxycodone.
In about 2001, Dr Larden misappropriated Oxycontin tablets from community pharmacies he worked at.
In August 2003 Dr Larden was working full-time at a pharmacy. His employment was terminated in 2004 after misappropriation of large quantities of Oxycontin, Dexamphetamine, Hypnodorm, Endone and Physeptone. That month he was admitted to Sydney Private Clinic for one week under Dr Rosalie Wilcox. Dr Larden discouraged Dr Wilcox from reporting him to the Pharmacy Board. At that time, he was taking up to 4 gm of oxycodone daily with dexamphetamine and Rohypnol. After his one-week treatment at the clinic and unemployed, Dr Larden started taking Nurofen Plus in large quantities. Later, in 2004, whilst working at St George Hospital as a pharmacist, he continued taking Nurofen Plus and Digesic tablets.
After about three months he commenced working at Long Bay Prison as a pharmacist and was observed, by reason of his drug taking, to be unable to function and his employment ceased.
In October 2004, Dr Larden undertook to the Pharmacy Board of NSW to see a psychiatrist but failed to attend several appointments from October 2004 to October 2007.
After a leg fracture in February 2005 and surgical procedures in March 2005, he obtained prescriptions for pain and changed the dates on his prescriptions to obtain large amounts at a time. He commenced working as a Security Officer.
In July 2005, January 2006 and September 2006, he appeared before a Local Court in NSW for forging prescriptions, entering false entries into drug registers and was convicted of separate offences on each occasion.
In 2006 he commenced methadone treatment with Dr Gary Swift at Clinic 36. This continued on a regular basis until the Tribunal hearing in 2009. He and his wife divorced in 2008.
A Pharmacy Tribunal hearing occurred in March 2009 and in May 2009 his registration was cancelled. At that time Dr Larden stated he had ceased Oxycontin in about October 2008, was taking antidepressant medication, and methadone, under the supervision of Dr Swift. Dr Larden told the Tribunal he did not think at this stage he could be trusted with medications and he had no ambition to return to pharmacy. His registration was cancelled.
Dr Larden has been employed in the School of Optometry and Vision Science at the University of New South Wales since 2009. Initially, he prepared the pre-clinical teaching laboratory and optics teaching laboratory, supported staff on technical issues relating to the equipment and consumables (including diagnostic ophthalmic drugs), set up and in many instances carried out a maintenance schedule, sterilized clinical equipment, created student schedules, hosted primary school children visiting the school for eye care education, and manage the student Learning Management System IT interface. His role has grown over the years to additionally cover audio-visual set up and capture, installation and management of the clinical computer network and interfacing with primary care diagnostic equipment, installation of security surveillance equipment, WHS Supervisor (including responsibility for all risk assessment and control implementation), Chief Building Warden during emergencies, student liaison with ophthalmic industry representatives and optometrists who take students for preceptorships, laboratory budget management . Dr Larden is presently the Technical Laboratory Manager, Chair of the Health and is a valued member of the School staff.
We accept that Dr Larden, to use his words, "has rebuilt" his life. We accept that he "hasn't looked back", since he completed his methadone programs. His exiting from a life of addiction, solely it seems through his own will-power and without professional assistance (save for his participation in a methadone program) is to his great credit.
We accept that much of the past facts we have recounted is "ancient history". However, we note the concerns of Dr Samuels that notwithstanding that Dr Larden appears to be in established remission, he has a potential to relapse into opiate use were he in a situation where he could access opiates. This is exacerbated by the failure to prepare a relapse plan, which he would be able to do with an addiction specialist.
We also share the concerns of the Commission that the application may be premature. We think it tolerably clear that this application is, to use Dr Larden's words, about closure, namely his closure. He has no real plan to return to work. He has not made any attempt to regain a connection to pharmacy, even by simply reading the literature for the scientific aspects which he said he was interested in.
For someone who is seeking the privilege of reinstatement, we find it somewhat remarkable that Dr Larden had not even read the reasons for the cancellation of his registration. Insight, understanding, reflection, all appear to be in short measure. In short, we share the concern of Dr Samuels, agreed to by Dr Larden himself, that he still lacks insight into the causes of his addiction, and an understanding or plan to avoid future relapse. This is underscored by Dr Larden's reliance on a "self-help" approach, and refusing to see a psychologist or psychiatrist.
In summary, the application is premature.
For the assistance of Dr Larden, that is to give him some guidance in the future, we note the following two series of cases involving reinstatement sought by two nurses. The approach taken by Dr Larden can be contrasted with the approach of each.
The first is the matter of Ms Lih-Heuy Wang. The second is the matter of Mr Bhavesh Shah.

Ms Lih-Heuy Wang

The registration of Ms Wang was cancelled in 2010. The Nursing and Midwifery Tribunal (NMT) concluded that removal of Ms Wang's name from the Register was necessary for a period of three years to protect the public while a suitable opportunity was allowed for her to address the deficits found in her capacity to practise and in her competence.
Ms Wang first sought a review of the cancellation order in 2013. The NMT was not satisfied that the she had addressed the inadequacies in her competence or in her qualifications. The NMT did not have a recent comprehensive psychiatric assessment. The NMT made orders that Ms Wang not be permitted to make a further application for review prior to 2 October 2016.
Ms Wang made a further application for review of the cancellation order, which was the subject of the 2018 decision Wang v Health Care Complaints Commission [2018] NSWCATOD 34. The Tribunal made a reinstatement order. One of the critical matters which impressed the Tribunal was that Ms Wang, since the 2013 decision, had then attended on a treating psychiatrist 35 times in the three year period. Ms Wang had also sought, and gained, employment in a number of positions which allowed her to gain some nursing related experience.

Mr Bhavesh Shah

Mr Shah's registration was cancelled following an incident in May 2009. Mr Shah mistakenly gave dishwashing detergent to a patient, thinking it was medication. Stored in a bottle labelled "Cardizem Capsules", the detergent was used by the patient to clean his dentures. Cardizem is a drug used to treat hypertension. The Nursing and Midwifery Council ordered that Mr Shah's registration be cancelled and that he not seek review of that order until 12 months had elapsed: Health Care Complaints Commission v Shah [2013] NSWNT 1.
In 2014, Mr Shah applied to the Tribunal for review of the cancellation decision. His application was refused because the materials relied on by Mr Shah showed a real lack of care in their preparation. In short, at least in his relation to his resume, the document was misleading. The Tribunal did not find it necessary to decide whether or not Mr Shah acted dishonestly or intentionally attempted to mislead the Tribunal. However, the Tribunal had a real concern that his resume, in particular, contained many inaccuracies: Shah v Health Care Complaints Commission [2014] NSWCATOD 94.
In 2015 Mr Shah made a further application. On this occasion, the Tribunal decided to make a reinstatement order: Shah v Health Care Complaints Commission [2016] NSWCATOD 68. The Tribunal was satisfied that Mr Shah:

now understood the basis on which the findings of professional misconduct and unsatisfactory professional conduct were founded;
appreciated the harm caused or potentially caused to the patient the subject of the initiating complaint, and the need for vigilance and adherence to relevant protocols in the administration of medication;
had made substantial efforts to address his lack of proficiency in the English language and to improve his clinical skills.

In both the Wang and Shah matters, when the first application for reinstatement was refused, the Tribunal directed that the applicant not be permitted to reapply for respective periods of three years (in the case of Ms Wang) and nine months (in the case of Mr Shah).
We do not think it necessary to impose a period of time before Dr Larden can reapply for reinstatement. However, the matters that Dr Larden needs to address before being reinstated include:

demonstrating a commitment to continuing professional development;
receiving mentoring;
attending a psychologist for therapy;
taking part in a drug rehabilitation group or having a drug counsellor;
joining a professional pharmacy organisation; and
undergoing thrice weekly drug tests to support his rehabilitation and to demonstrate sobriety.

We would have thought it would be a period of at least 12 months before Dr Larden could demonstrate these matters to the Tribunal.

Costs

The Tribunal has repeatedly indicated, as has the Court of Appeal, that this is a costs jurisdiction, and the ordinary rule is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342: Qasim v Health Care Complaints Commission [2015] NSWCA 282; Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182.
The applicant has been unsuccessful. He must pay the Commissions costs, as agreed or assessed.

Order 1. The application for reinstatement is dismissed. 2. The applicant to pay the respondent's costs, as agreed or as assessed.

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

Amendments 05 June 2018 - Catchwords amended - now 'Pharmacy' from 'Nursing' 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: 05 June 2018

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Cases Cited (7)