Simpson v Dental Council of NSW

Grounds of Appeal

1. By an external appeal form filed 4 December 2015, Dr Simpson appealed against the Council's decision of 18 September 2015. He stated: 1. I do not agree with the suspension. 2. I believe not all factors have been considered e.g. health. 3. The decision puts me under extreme hardship. 4. The suspension is too severe a result. 5. Many facts have been ignored.

Evidence filed at or prior to the hearing

1. The appeal hearing was held over two days. Dr Simpson was represented by Mr Brezniak of counsel on the first day. He represented himself on the second day. Ms Baker of counsel represented the respondent Council on both occasions.
2. Prior to the hearing, the Council had filed a folder containing more than 45 documents including but not limited to the Council's reasons for decision of 17 June 2015 and 18 September 2015; fact sheets in respect of the appellant's charges; medication charts; files notes of the Council and correspondence with the appellant; various submissions of the Council; relevant standards for health professionals; patient records; and transcripts of s 150 hearings conducted by the Council. The folder of documents was admitted as Exhibit A. Additional documents were tendered at the hearing, including correspondence between the Council and Dr Simpson and an affidavit of Mr Iain Martin affirmed 26 April 2016. This affidavit (which became Exhibit B in the appeal), attached records of the Health Professional Councils Authority.
3. Dr Simpson did not file any documents prior to the hearing. However, at the hearing, he tendered through his counsel a folder of documents. These documents relevantly included: 1. Exhibit 3: a letter from Dr Paul Chu "to whom it may concern", dated 8 April 2016. Dr Chu states: William Charles Simpson was seen at this practice and was prescribed twenty tablets of Panadeine Forte (Paracetamol 500mg/Codeine 30mg) on 12 October 2015. This was for management of an exacerbation of back pain following a fall a week earlier. He has not received any other prescriptions for codeine-containing medications from this practice up to today. 1. Exhibit 4: a letter from Dr Flood "to whom it may concern", dated 6 April 2016. Dr Flood states: I have been seeing [Dr Simpson] since 2005 for cardiac issues including atrial fibrillation and cardiomyopathy. His progress in recent times in terms of lifestyle modification, weight loss and compliance with medical therapy has been excellent. Unfortunately he has had several other unrelated issues relating to recurrent pneumonia and low platelet levels which have required further investigation and procedures. From a cardiac viewpoint I can certainly report that there is no clinical suspicion of any recent or ongoing illicit drug use whatsoever. His pacemaker check does not show any prolonged or significant arrhythmias to suggest cardiac stimulation by illegal or prescribed stimulants. His cardiac status is quite stable at present based on recent testing. In summary there is certainly no evidence from a cardiac viewpoint that there has been any recent illicit drug use whatsoever. 1. Exhibit 5: a statement undated, and unsigned, of Dr Simpson. In summary, Dr Simpson relevantly states that: 1. he does not constitute a danger or risk to those who have dealt with him professionally, or to the public, 2. all of the medications that were in his urine were explained by his hospital stays; he had been admitted to hospital on six occasions from 25 June 2015 to 1 January 2016. 3. the medical conditions for which he was admitted included a pulmonary haemorrhage, pneumonia and thrombocytopenia. Upon discharge, he was prescribed various medications which gave rise to positive urine results. In total, he took many more urine tests than was originally directed. The Council has shown "no concession" for these matters. He is 68 years old and has a good dental history. Save for his conviction he has "an excellent record", he loves his profession and would do nothing to harm it. 4. he makes various complaints about the procedures adopted by the Council at the hearing on 18 September 2015. 5. he recognises that prescribing medication while suspended was an error of "real magnitude", an error he 'sincerely regret[s]". He is "amazed" that he did not realised that a consequence of not being able to practise meant that he could not prescribe medication, but he has been "anxious" and "under personal pressure by reason of the uncertainty and ill health". 6. he thinks that his suspension is a "vast overreaction to a concatenation of circumstances which were and are readily explained". He says that there were no illicit substances in his urine and that the test results demonstrably show that "I do not take illicit substances nor am or were a danger to my erstwhile patients".
4. Importantly, marked as Exhibit 7, was an Advice of Court Result issued by the District Court on 27 April 2016. That document records that Dr Simpson's appeal against his conviction for supply of a prohibited drug was upheld, and the conviction and orders of the Local Court magistrate quashed. Instead, the District Court found the offence proven, but under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, directed Dr Simpson to enter into a good behaviour bond for two years, to accept conditions that he must be of good behaviour and appear before the Court during the bond term if required, and to advise the Registrar of the Court of any change in his residential address.
5. In addition, Dr Simpson also tendered a bundle of 13 other documents (Exhibit 6). We shall not summarise the formal letters of the Council notifying Dr Simpson of hearings or the results of hearings, or seeking information. Those documents otherwise relevantly included the following: 1. An undated hand written submission titled "Shouldn't the Punishment Fit the Crime", together with a handwritten chronology of events (document 1). This document states: THE CRIME (1) POSSESSION OF ILLICIT SUBSTANCE (2) DISTRIBUTION [OF ILLICIT SUBSTANCE] (minimal amount) THE PUNISHMENT: (1) suspension of 6 months and ongoing inability to work (2) subsequent (near) bankruptcy (3) sale of surgery at a loss of [more than $700,000] (4) loss of reputation (5) loss of self-esteem [and] self-confidence (6) stress causing hospitalisation, appearance or immune disease [and] lung problems (7) psychological problems caused by the extended time-frame of suspension. Does the punishment fit crime? (striking out as in original) 1. Hand written notes of the s 150 proceedings held on 17 June 2015 by Dr Simpson, together with a copy of the decision of the Council of 17 June 2015 (document 2). 2. A document titled Summary of Compliance with Conditions dated 17 September 2015 prepared by Ms Alison Tankard (document 3). 3. A file note of the Dental Council dated 15 September 2015 prepared by Ms Tankard, together with an email chain dated 18 September 2015 confirming that the anaesthetic drugs given to Dr Simpson on 27 August 2015 for a bronchoscopy were midazolam, alfentayl and propofol (document 4); 4. Documents including handwritten notes of Dr Simpson described as "Dr Simpson documents relevant to 2nd meeting" (document 5); 5. A letter from Dr Simpson to the Council dated 18 December 2015, together with an application to the Council for a review of the decision of the Council of 18 September 2015 (document 6). Dr Simpson's letter relevantly states: FURTHER (ADDITIONAL) PATHOLOGY RESULTS I have obtained and now attach pathology results for November and December 2015 up until just prior to the review date. ... I do comment as follows: In relation to the temazepam I did have a prescription as shown in the hospital discharge summary which was tendered at the hearing. In relation to the codeine I do rely upon what was submitted at the review hearing and in particular what was stated by Professor Jones in the report tendered at hearing. I am still concerned by the morphine result but as I do not take that drug it must be a derivative of the poppy seed component in the food I was eating or codeine metabolism. As the result for codeine and morphine traces are close in time I do believe that they are related to the same intake and, again, believe that Professor Jones deals with the likely or possible relationship. ... I advise that the persons to whom the prescriptions were written are as follows: [Dr Simpson then sets out the names of four patients, including his wife, for whom he respectively prescribed valium, antibiotics and painkillers, antibiotics and antibiotics and painkillers]. MY SUBMISIONS CONCERNING POST SUSPENSION PRESCRIBING I think that I did prescribe on these occasions by reason of my own uncertainty and even confusion resulting from my present predicament with by proceedings before this Tribunal. I have been very shaken by the pointed claims that I have some problem with drugs which I do not. I have been a shadow of my usual confident self and I have undergone severe close introspection about how I could have ended up in such a situation. I did not have legal representation because of the short notice and I did not afterwards have the opportunity to have advice about my obligations at that time. I know that what went through my mind at the time was as follows: my prescriptions are written under my DP number 925037 which applies at all locations whereas dental work is under my provider number 0517-849T which is only related to the Potts Point practice. I reasoned that performance of my work as a dentist was separate and distinct from prescribing. How I came to reason this way I can only explain by the terrible anxiety I have been feeling in my present situation. I recognise that I was in error and that practice and prescribing are each a feature of the other. Really do regret my misjudgement and I do ask this council to accept this truthful and sincere account in regret that this occurred. It is, to me, an indication of just how upset I have been by the accusations made against me at this point in my career in work I love and to which I have been completely as a dentist. I do wish to continue in my profession and I do know I understand the writing of the prescriptions was a serious misjudgement. It is not a misjudgement with any intention to defy the rules and applications to my profession and my suspension from practice. It was a misjudgement flowing from a misconception overlaid with my being seriously shaken by the predicament which I found myself. 1. Documents described as "Dr Simpson Hospital Medications" (document 8). These documents include Dr Simpson's notes about the work carried out on the four patients, and sets out submissions that he asks the Council to take into account, such as being a dentist with 45 years' experience, being married for over 40 years with children and grandchildren, and the current inquiry not relating to any harm or threat to his patients. 2. Documents described as "St Vincent's Hospital Discharge Summary/Referral letters" (document 9). 3. Documents described as "urine analysis summary and letter 8 December 2015" (document 10). These documents include Dr Simpson's submissions in relation to the UDT testing. In summary, it is submitted that the Council did not give enough consideration to his health issues which greatly compromised his ability to adhere to the strict guidelines. 4. A bundle of documents described as "Dr Simpson "urine analysis reports together with summary" (document 11).

The Council Decisions

1. As noted, Dr Simpson appeals from the decision of the Council to suspend his registration, effective 18 September 2015. It is appropriate to place the Council's decision in context.

Council decision of 17 June 2015

1. The context is that on 17 June 1015 the Council held a hearing. It had been informed that Dr Simpson had been charged by NSW police with possession of a prohibited substance. The Council was concerned that he may be practising under the influence of drugs, and directed that that matter be considered under s 150 of the National Law. The delegates constituting the Council were aware that police were investigating Dr Simpson's practice for possible fraud on health funds, but did not consider that those matters were relevant to the proceedings. The Council found that there was no evidence or other complaints that Dr Simpson had practised under the influence of prohibited substances, or any substance that may influence his ability to practise. The Council decided that it was in the public interest and the profession that Dr Simpson be assessed for possible drug use, agreed with his submission that he would commence urinalysis that day, and expressed confidence that there was no reason to suspend Dr Simpson's registration.

Council decision of 18 September 2015

1. On 15 September 2015, the Council received information alleging that a urine drug test for a urine sample Dr Simpson provided on 27 August 2015 had tested positive for midazolam. The Council found additional evidence that Dr Simpson failed to comply with the conditions imposed on his registration on 18 June 2015, and on 18 September decided to hold further s 150 proceedings. At the conclusion of a hearing held that day, the Council informed Dr Simpson that it was suspending his registration immediately. The Council was satisfied that that action was required to protect the health and safety of the public.
2. In coming to its conclusion, the Council considered the appellant's oral and written submissions, and the documents on which he relied, which included: 1. A list of the medications that had been prescribed by him at St Vincent's Hospital in the period 11 October 2009 to 20 August 2015. That list shows that the appellant had been prescribed oxycodone on 17 August 2015, and temazepam in two relevant periods, 26 June to 2 July 2015 and 12 to 21 August 2015. 2. An email from a Dr Dev Banjeree to the appellant dated 18 September 2015. That email stated that the appellant underwent a bronchoscopy on 27 August 2015, and that the anaesthetic drugs that were given to him were midazolam, alfentanyl and propofol.
3. The Council stated in its reasons for decision: 26. The delegates' concern in the proceedings was Dr Simpson's non-compliance with the conditions imposed on his registration on 18 June 2015 and the positive UDT results that could affect his practice as a dentist and hence endanger the health and safety of the public. 27. The delegates noted that Dr Simpson had attended for UDT on 22 occasions. This number was significantly deficient of the thrice weekly testing required from 18 June 2015 as per the conditions on his registration. Dr Simpson's attempt to explain that this was due to two hospital stays and a trip away did not satisfy the delegates. Further, claims by Dr Simpson that he presented for testing on the wrong days, at the wrong places and followed protocols regarding UDT supervisor sign-off incorrectly only reinforced his lack of insight into the series of non-compliance with the conditions on his registration. ... 29. There were 13 positive UDT results from the 22 tests undertaken. ... 33. The eight positive UDTs for morphine trace, codeine, fentanyl, oxazepam and temazepam could not be explained by any prescription medications. The delegates are of the view that this is a serious breach by Dr Simpson, of the conditions on his registration. 34. The delegates also note that despite Dr Simpson's claims that his hospitalisation prevented him from complying with the thrice weekly UDT, the records of St Vincent's Hospital indicate that they "were unable to establish an optimal regime for him as he was often not present on the ward". Dr Simpson admitted that he would walk out of hospital to his Potts Point practice to ensure everything was running smoothly. 35. Dr Simpson stated that his work and family took priority over the UDT. There is no scope in the Law for Dr Simpson's personal priorities to mitigate his compliance with the UDT conditions placed on his registration [on] June 18, 2015. 36. Dr Simpson's non-compliance with the conditions on his registration and failure to communicate with the Dental Council despite numerous communications are an indication of his lack of insight into the seriousness of this matter and requirement for strict adherence to the protocols.

Events following the Council decision of 18 September 2015

1. By email dated 29 October 2015, Dr Simpson sought a review of the decision of 18 September 2015. He stated that he was dentist of 45 years standing, with a "perfectly clean" police record and a "good record" with the Dental Board/Council. He stated that a: minor drug issue has arisen, which to this stage has not been judged in court. The Dental Council earlier in the year allowed me to continue practice, on the condition that I attended thrice weekly urine testing. I have attempted to do this as the best of my ability; but this was made difficult by an illness which forced me to spend three stays in hospital for a week each - sometimes in a sterile ward. ... THIS TOTAL SHAM HAS HAPPENED TO A DENTIST WHO HAS NOT BEEN FOUND GUILITY OF ANY CHARGE; WHO DOES NOT POSE A THREAT OR HARMED ANY PATIENT; AND COULD NOT BE CONSIDERED A DANGER TO HIS PROFESSION OR HIS PATIENTS; WHO HAS DONE HIS BEST TO WITH THE DENTAL COUNCIL, DESPITE BEING HOSPITALISED FOR MOST OF THE TESTING PERIOD; WHO HAS BEEN SHOWN TO BE COMPLETELY FREE OF ANY MEDICATION WHICH IS NOT ACCOUNTABLE FOR. I AM PLEADING WITH THE COUNCIL TO FACILITATE, BY HAVING MY APPEAL HEARD AS RAPDILY AS POSSIBLE FOR BOTH MY PROFESSIONAL SENSE OF INTEGRITY AND FOR VERY ACUTE MEDICAL NEEDS. I BELIEVE I HAVE SUFFERED ENOUGH OVER THE PAST YEAR TO WARRANT SOME LATITUDE. NOW THAT MY MEDICAL ISSUES SEEM TO BE RESOLVED, I WOULD LIKE TO THINK THAT I WOULD BE ABLE TO PRACTICE AS SOON AS POSSIBLE. (Capitalisation as in original)
2. On 19 November 2015, Dr Simpson pleaded guilty to supplying a prohibited drug. He was convicted of that offence and directed to enter into a good behaviour bond pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 for a period of two years. On the same day, a charge of possessing a prohibited drug was withdrawn.
3. The facts sheet was included in the documents. It relevantly states: ANTECEDENT The accused is a practising dentist who is currently under investigation in regards to fraudulent private health care claims. The accused does not have a lengthy criminal history and has been co-operative with police during the ongoing investigation. FULL FACTS About 9:55am on Friday 19th December 2014 Police executed a search warrant ... This search warrant was to seizing documentation in regards to fraudulent private health care claims by the accused, Dr William SIMPSON. During the execution of the search warrant, about 10:45am the accused asked Police if he could go to the toilet to take some medication and offered for Police to search the black document wallet he was carrying. A representative of Medibank Private that was present to assist with the search indicated to Police that just prior to [this] he had seen the accused remove his wallet from the black document wallet and put [it] in his pants pocket. Police asked the accused to remove the wallet which he provided. A search of the wallet in the coin compartment revealed a small clear resealable bag containing powder which was seized. The accused was cautioned in regards to this and stated "Its not for personal use" and when questioned as to its contents stated "It's a bag of cocaine that a friend of mine asked me to give to another friend". ... During [a later interview] the accused stated that it was something a patient had given him the day or two previous and had asked him to hand to a friend which also happened to be a patient which he then placed in his wallet. The accused said he was simply handing over the package to someone else and that it was not for personal use as he [was] precluded from using such substances due to medical conditions suffered by the accused. When questioned the accused stated he assumed the powder to be speed or cocaine. The accused further stated that he believed that it would be out of his possession by that afternoon however declined to provide to Police who he received the package from or its intended recipient. On 23rd December 2014 this package underwent presumptive analysis which indicated it to be cocaine with a weight of 0.58 grams.

Council proceedings of 9 December 2015

1. At a hearing of the Council held on 9 December 2015, Dr Simpson through his counsel indicated that he wished to place additional information before the Council concerning the results of urine testing that had taken place in June 2015, such information constituting a change in circumstances warranting reconsideration of the Council's decision. The Council also had before it handwritten submissions of Dr Simpson. In those submissions, he explains that the detected morphine traces could have been caused by poppy seeds, that temazepam and oxazepam were contained in sleeping tablets administered to him in hospital, that the fentanyl and medizalam were directed related to his bronoschopy, and that codeine, which was "only noted 5 times" in 53 tests, was available "over the counter". Dr Simpson stated that he believed that his illness and subsequent hospitalisation was not given enough weight in the Council's decision to suspend his registration. He submitted that the events of the recent months had taken an "enormous toll". He asked for his registration to be restored so that he could complete his professional career with dignity.
2. Dr Simpson claimed that he had given his counsel instructions to plead guilty to the charge of possession but not to the charge of supply. He submitted that his conviction for supply was a mistake.
3. During the course of the hearing Dr Simpson admitted that he had prescribed medications to "maybe five, six" patients, and did not have a current professional indemnity insurance. He explained that in prescribing medications, he spoke to the patients at the reception desk, but did not look in their mouths. He stated: But I think it's quite obvious to any practitioner if a patient needs an antibiotic, that you write one. If this was to happen again I would refer them on to their GP.
4. Dr Simpson made lengthy oral submissions about the circumstances in which positive drug results were noted in the course of the UDT. His counsel also addressed the Council, submitting that the Council should "allow him back", submitting that any positive drug results did not point to an addiction or a drug problem.
5. The hearing was adjourned to allow the appellant the time to obtain material relevant to the positive drug results.

Council proceedings of 28 January 2016

1. The hearing resumed on 28 January 2016. The appellant was permitted to give further evidence in relation to the drug test results. The appellant was questioned by the delegates about his writing of prescriptions while suspended. In particular, the delegates asked him about his record keeping in relation to the writing of those prescriptions, which was described during the course of the hearing as, "informal". At the conclusion of the hearing, Dr Simpson was allowed further time to produce further documents, and to file written submissions.
2. Those documents later produced to the Council appear behind Tab 39 in Exhibit A. A covering letter dated 30 January 2016, signed by Dr Simpson, relevantly states: I enclose copies of my records which reflect the work carried out on the four patients of interest from our meeting of January the 28th. Please note the following points: - My records included the records of various locums part-timers (Dr Roberto Aureli, Dr Frederick Nygren and Dr Cassandra Wee), who treated the patients in the period of interest (and afterwards) in the format they presented. … Note that three prescriptions were written on the morning of 18th September 2015 - prior to the Dental council meeting. Note that the prescription dated the 19th September, but written the previous day, was left for Dr Roberto Aureli, for the patient's extraction that day. Please note that the medications were of the usual nature expected in a dental practice (ie antibiotics, pain relief (not strong medication such as Endone) and Valium for TMJ stress. Note that in the three months period, four patients as outlined received my scripts.

Council decision of 10 March 2016

1. The Council delivered written reasons for decision on 10 March 2016. It decided to affirm its earlier decision to suspend Dr Simpson's registration. The Council noted that the central issue for it to consider was whether there had been a change in Dr Simpson's circumstances that justified the setting aside of its decision of 18 September 2015 to suspend his registration. To determine that question the Council indicated that it had to answer the following two questions: 1. What changes had there been to Dr Simpson's circumstances? 2. Did those changes justify the setting aside of the decision to suspend Dr Simpson's registration?
2. The Council found that the three main developments or changes to Dr Simpson's circumstances. These were: 1. His conviction for supply of a prohibited drug. 2. Six positive results to drug testing. 3. Prescribing drugs for patients after his registration had been suspended.
3. In relation to the conviction for supply of a prohibited drug, the Council stated that it could not: look behind the Court's verdict. Until successfully appealed, the conviction for supply stands. This is a significant underlining of the event and conduct that first brought Dr Simpson to the Council's attention. It does not favour the lifting of his conviction.
4. In relation to the six positive drug results, the Council concluded: These post-18 September 2015 test results do not comfort us. Of the 22 test results he undertook, 6 returned positive results. Even accepting Dr Simpson's explanations for these positive results, we expect that Dr Simpson's desire to have the suspension of his registration lifted would cause him to take care about the substances he consumed, even if they were in fact poppy seed bagels and previously prescribed over the counter medications, and to have taken all reasonable steps to ensure negative results. We expected that, with his previous health crisis resolved, there would have been a marked improvement in test results, if not a perfect set of negative results. Dr Simpson himself pointed to his health and stability as a positive change in his circumstances that should weigh in favour of the lifting of his suspension. However, these improvements are not reflected in his test results. It follows that the results of the urine drug testing undertaken by Dr Simpson from September to November 2015 do not favour the lifting of his suspension.
5. As to prescribing while not registered, the Council indicated that it was "very disturbed" by Dr Simpson's explanation. The reasons for decision state: At the hearing on 9 December 2015, Dr Simpson told us that he had not worked as a dentist during the period of his suspension but, while working at the surgery as a practice manager, he had prescribed the medications for "five or six" patients of the surgery - after his registration had been suspended. He said he also prescribed for his wife on one occasion. He said that the scripts were for Amoxycillin and Panadeine Forte. He said that he did not "treat" the patients in any way and merely spoke to them when they turned up in need of medication after hours when no dentist was available to see them. We were very disturbed by this. [The reasons then set out details of prescriptions under Dr Simpson's prescriber number on 18 September, 19 September, 2 October, 11 October, 23 November and 29 November 2015]. Dr Simpson maintained that the prescriptions written on 18 and 19 September all predated his suspension on 18 September. He disputed the "X2" in relation to prescriptions for codeine phosphate with paracetamol on 18 and 19 September. He said the scripts he wrote while suspended were for just four patients who were in need of his help. We asked Dr Simpson to produce the clinical records for the patients he named. None of the clinical records he produced indicated the prescribing done by Dr Simpson after he was suspended. Dr Simpson said he had entered this prescribing in his journal - a private record he keeps of his activities. He produced some pages of that journal. Dr Simpson said that he had treated all of these patients and knew their histories. Dr Simpson said he had not realised that his suspension meant he could not prescribe. He said that he thought he simply could not "lay hands" on patients and, because he was distressed and confused, made an "error of judgment". He said that as soon as he realised this he ceased. He argues that the medications he had prescribed were not dangerous or addictive. In particular, he insisted that Diazepam is not an addictive drug and he saw no harm in having written two scripts for 50mg each. Clearly, this prescribing is a worrying transgression that undermines the purpose of an order for suspension of registration - the protection of the health and safety of the public. We are very concerned by Dr Simpson's failure to grasp that a suspension of his registration means that he cannot prescribe. That he did so after having cancelled his professional indemnity registration is also very worrying. We were also concerned that no clinical record was made of the prescribing and that Dr Simpson seemed unaware of the addictive potential of Diazepam.
6. The Council concluded: The changes in Dr Simpson's circumstances since the suspension of his registration are not positive ones, in spite of his claim that he is now well and more stable. His conviction for supply of a prohibited drug, his continued positive results on drug testing and his prescribing while unregistered all count strongly against lifting his suspension. This is not outweighed by his claimed improvement in his health and general stability. We are mindful that Dr Simpson's drug test result when hospitalised in August 2015 has been explained by his treating respiratory physician, Dr Banerjeee. However, on balance, and given his conviction, his additional positive drug test results and his post-suspension prescribing, we can find no justification for lifting the suspension of Dr Simpson's registration. In reaching this conclusion, we are mindful of the risk to the health and safety of the public that is posed by Dr Simpson's positive drug test results and by his prescribing while not registered.

The Tribunal hearing

1. Ms Baker made a short opening. She submitted both limbs of s 150 of the National Law had been satisfied as warranting suspension of Dr Simpson's registration. She relied on three aspects of Dr Simpson's behaviour or conduct: 1. His conviction of supplying a prohibited drug, and being in possession of that drug at his surgery. 2. His failure to comply with the ordered UDT testing. 3. His prescribing drugs while suspended, which Ms Baker described as a particularly serious concern, as it undermined the effectiveness of the regulatory system and also showed a disregard for the system.
2. Ms Baker also submitted that there was an issue as to the adequacy of Dr Simpson's keeping of his patients' records.
3. Mr Brezniak responded. He noted that the conviction was for a miniscule amount of cocaine, and had no bearing on the UDT results. He said that the issue of prescribing while suspended would be the subject of later submissions, but noted that some of the prescribing had taken place prior to when Dr Simpson was suspended. He then called Dr Simpson.
4. In brief oral evidence in chief, Dr Simpson relevantly agreed that he had been hospitalised in the periods 25 June to 2 July, 12 to 20 August, 19 to 27 September and 11 to 26 October 2015. He admitted to missing some of the thrice weekly UDT, but said that this was because he was "somewhat wobbly" following his hospital admissions. He described the positive drug results as "benign", and the results being positive "absent content", that is, his hospitalisations.

Dates of hospitalisation

1. Ms Baker commenced her cross-examination by asking Dr Simpson whether the dates of his hospitalisations set out in par [4] of his statement (namely 25 June to 2 July, 12 to 19 or 20 August, 19 to 27 September and 11 to 26 October 2015 and New Year's Eve) were accurate. He said that they were, to "within a day".

Possession of cocaine

1. Dr Simpson was then asked about the events of 19 September 2014 when the police came to his surgery. He agreed that cocaine was in his wallet, that he told the police that it was not his cocaine, and that it had been given to him by a friend. He said that he did not want to take the cocaine, and was not sure why it had been given to him. He was asked whether he had told police that he was going to give it to a friend who was also a patient. He said that that was "possibly true", but that he was in an "agitated state". When further tested, he said that he was not sure that he said that he would give the cocaine to a friend. When asked why he would tell the police otherwise, he said that he was under duress, and that today (that is at the hearing) he was not certain. He could say that he knew that the drug was not for him. He thought that it was an "added reward" for him, but he did not know what the intentions of the person who gave it to him were. Dr Simpson was then asked directly whether the drug was for him or for someone else. He said that he did not think that the person who gave the drug to him cared. He said that they did not discuss it at length. He said that he had received the drug "maybe" a week or two before the police attended his surgery, but had taken no action to dispose of the drug. He said that he had forgotten about it, did not know what it was, and absent-mindedly put the drug in his wallet. When asked whether he knew it was highly likely to be an illegal drug, he said that he did not know what it was, but thought it may be a drug. He said that not disposing of it was an oversight, but that this was not "a major event", as it had never happened previously or since; it was a mistake. He agreed that he subsequently entered a plea of guilty to supplying a prohibited drug.

UDT

1. Dr Simpson was then shown Exhibit 46. This was a letter to him from the Council dated 22 June 2015. The letter notes that conditions 1 and 2 placed on him on 18 June 2015 pursuant to s 150 of the National Law require him to attend for thrice weekly UDT in accordance with the Council's UDT Protocol. The letter attached two copies of the UDT Protocol. Relevantly, the Protocol states: 3 Detailed Requirements [Dr Simpson] is prohibited form self-administering any drugs detailed in Schedule 1 (of the Drug Misuse and Trafficking Act), Schedule 4 or Schedule 8 drugs (of the Poisons and Therapeutic Goods Act). This includes any narcotic derivatives, non-prescription compound analgesics or cold medications unless prescribed and taken at the direction of a treating practitioner. [Dr Simpson] must notify the Council of any instance of illness requiring the administration of medications prescribed above. In addition, [Dr Simpson] must provide the Council with written confirmation of such treatment from the treating practitioner. ... [Dr Simpson] must avoid the consumption of any food containing poppy seeds. ... Participants must advise the Council of any procedures that they are required to undergo which may involve the administration of drugs. Where administration of drugs has occurred in an emergency situation, the participant must advise the Council as soon as practicable in the circumstances and provide the Council with written confirmation of such treatment from the treating practitioner. ... 3.1 Thrice weekly testing Testing is conducted on Monday, Wednesday and Friday of each week. It is not acceptable to present on other days without prior approval. The decision to vary testing from thrice-weekly to random can only be made with endorsement from the Council. ... 3.3 Absence from testing Participants are required to advise Council, in writing, at least five business days before any anticipated absence ... 3.4 Missed tests If a participant is aware that a test had been missed, the participant must immediately notify the council and provide an explanation in writing.
2. Dr Simpson was asked whether he read the letter when it was sent to him. He said that he had, but said that there were extraneous circumstances that would have affected his understanding. He stated that he had seen a document similar to Exhibit 46, which he believed he had read. When asked whether or not he was sure, he said that he was familiar with a letter, but could not recall the words "Urine Drug Testing" or "PaLMS collection facility" which appear in Exhibit 46.
3. He then explained that the UDT commenced in July 2015, but stopped after three months when he was admitted to hospital in September 2015, after aspirating vomit in his sleep. He resumed UDT on 25 September, and attended over 50 tests, which was more than the 36 ordered. He was then asked about the pharmacology reports of: 1. 20 July 2015, showing the detection of a "morphine trace". 2. 22 July 2015, showing the detection of oxazepam and temazepam. 3. 20 August 2015, showing the detection of oxazepam and temazepam. 4. 7 September 2015, showing a "morphine trace. May not be a heroin metabolite".
4. This last entry prompted a lengthy discussion about Dr Simpson's enjoyment of poppy seeds and poppy seed bagels. The background is that in an email to Dr Simpson dated 24 September 2015 A/Prof Graham Jones, a Staff Specialist in Chemical Pathology, forwarded an email also dated 24 September 2015 from Mr John Stathopoulos. Mr Stathopoulos stated that a drug report of "morphine trace. May not be a heroin metabolite" indicated that the level of morphine cannot be assigned to a specific source, such as morphine or heroin, and may come from any one of a number of sources including heroin, morphine, codeine, poppy seeds, and any food items containing poppy seeds.
5. At the Council hearing on 18 September 2015, Dr Simpson said that he would avoid poppy seeds. At the Council hearing on 9 December 2015, he had said that he loved poppy seeds and had a poppy seed bagel most days. He was asked by the Chair on that occasion whether a conservative approach, to ensure that a morphine trace result was not recorded in UDT would be to avoid eating poppy seeds. Dr Simpson stated that he was not sure that he should preclude what he would normally eat.
6. In cross-examination he was asked whether he said at the 9 December hearing of Council "I don't believe that I should be limited to what I eat on the basis that it might show up as a trace". His response was "probably". He stated that if he had to undergo UDT again, he would avoid poppy seeds entirely. He accepted he would have to be limited in what he ate.
7. The appellant was then examined about the codeine results identified in the UDT. He indicated that his explanation for the results was his taking of Panadiene Forte prescribed by his general practitioner. At this point, Ms Baker reminded him that the Protocol provided that he was to notify the Council of any illness requiring the administration of medications, including analgesics taken at the direction of a treating practitioner. The appellant said that he did not recall that requirement, and did not recall reading it. He was asked whether he agreed that he never told the Council that he was taking Panedeine Forte. He said that his doctor would have.
8. Dr Simpson agreed that at some stage after he left hospital he discovered the letter of 26 September 2015 with the protocol attached. He did not agree that by continuing to eat poppy seeds he jeopardised the UDT.
9. The appellant was then asked about his failure to attend UDT on occasion. He had a variety of explanations, including that on occasion no-one was there, on other occasions he was sent away. At other times he was not in a physical or mental state to undertake testing. He said that he did his best to attend UDT.

Prescribing while suspended

1. The appellant was then cross-examined about his prescribing while suspended. He accepted that he had prescribed while he was suspended. He said that while he realised that amounted to a contravention, he did not realise that at the time. He said that he believed at the time he was entitled to prescribe. He said that he did not fully understand that the right to prescribe medication arose because he was registered as a dentist. He explained that because he had two separate numbers he was able to prescribe. He said that there was a "blurred line" while he was suspended, for instance, could he continue to call himself "Dr" Simpson?
2. He described his understanding and behaviour as "silly" and "naive". When asked by Ms Baker to agree that his behaviour was worse than a "silly mistake", he said that the only reason the Council knew about it was because he answered a question honestly.
3. The appellant was then asked about his examination of the patients to whom he prescribed medication (one of whom was his wife) while his registration was suspended. He agreed that he had formed a view about their medical condition, but that he was mistaken to do so, which he now realises. He agreed that, once suspended, he was no longer insured. He said that he "divorced the writing of the prescription from the practice of dentistry". He did not disagree with the proposition put to him that he put those patients at risk because of his lack of insurance. Dr Simpson was asked whether he formed a view about the medical condition of each patient before he prescribed the various prescriptions his response was that "I recognise that now". Dr Simpson was asked whether or not he recognised that at the time. He agreed that he was mistaken at the time.

Record keeping

1. Further questioning followed about the prescriptions written by Dr Simpson while his registration was suspended. In particular, Dr Simpson was asked about the patient records he had produced after the conclusion of the Council hearing of 28 January 2015. These records included diary entries for 29 November, 18 September, 19 September, 10 October, 11 October, 23 November and 29 November 2015. Dr Simpson said that this diary was his "daily diary", which he kept at his practice. He said he had several diaries, and that he used them as "loose paper".
2. Dr Simpson was cross-examined about these entries in the light of page 247 of Exhibit A (namely the report of the Department of Human Services prescribing by Dr Simpson in the period of 18 September to 15 December 2015) and other patient records produced by Dr Simpson appearing behind Tab 39 of Exhibit A. In relation to the prescription which was recorded for 19 September 2015, he said this had been written on 18 September 2015 (that is before he had been suspended) but he had post-dated the document. He said it was his usual practice to postdate prescriptions. When asked whether he had definitely seen the relevant patient on 18 September he said that he had "to the best of [his] recollection". He indicated that this prescription was a duplicate of another prescription written on 18 September 2015 by his locum. Dr Simpson said the locum was going to examine the patient, and that he (Dr Simpson) provided another prescription should the locum require it. It was put to Dr Simpson that the locum himself would have examined the patient and written any prescription. Dr Simpson did not initially respond to this, and then said he that he "just wrote it".
3. Dr Simpson also agreed that in relation to the prescriptions which were recorded in the diary entry in relation to patient "PS", that he failed to prepare any clinical notes. He said that usually he dictated a note after seeing a patient and he could not explain why there were no clinical records. He said that he believed that he had told the nurse what to "put in the computer". He also said that he did not know the locum's practice. He said that he saw the patient on 18 September, did not undertake a full examination, but explained this by reason of it being a type of "emergency"
4. Dr Simpson was asked further questions about the entries appearing on page 247 of Exhibit A. The Tribunal notes that this page contains handwritten annotations of Dr Simpson, identifying patients for whom he had prescribed drugs in the period while suspended. One entry, that of 23 November 2015, contained his own initials "WS". He was asked whether he had written a prescription for himself. He said that this prescription may have been for his wife. He said that he could not say with certainty whom it was written for, but he "supposed" it was for his wife. He was asked why he prescribed amoxycillin and clavulanic acid tablets for his wife. He said that his wife was a patient of Dr Nygren who had had to leave early. He said that he had written the prescription, mistakenly believing that he could prescribe. Dr Simpson was asked further questions about treatment of his wife by Dr Nygren. When it was put to him that there were no clinical notes of Dr Nygren for Mrs Simpson on either 2 October or 23 November 2015 (being the two dates which page 247 records Dr Simpson as having written prescriptions for his wife), Dr Simpson stated that this would be out of character for Dr Nygren, who was one of the best record keepers. It was put to Dr Simpson that he issued the prescriptions for his wife in circumstances where she was not seen by a registered dentist. Dr Simpson said that he believed that Dr Nygren did see his wife.
5. Dr Simpson was asked further questions about the entries on page 247 in relation to other patients on 18 September, 11 October, 23 November and 29 November 2015. It was put to Dr Simpson that for each of these consultations there were no clinical records. He agreed the records did not present well, but denied he was treating the patients. He agreed that it was important that record keeping be maintained and that he had an obligation to keep clinical records up to date. He agreed that "to an extent", he had failed to do so. Dr Simpson was asked about the other diary entries. The Tribunal notes the following: 1. The diary entry for 29 November 2015. This entry was said to record the prescription of cephalexin for a patient, who was to have an appointment with Dr Wee on 4 December 2015. No charge was to apply. Dr Simpson described this entry as a "note to [his] receptionist and the dentist" (that is Dr Wee). Dr Simpson agreed that he had not recorded this script in the patient's records. When asked whether this was because he was suspended, he answered no, that was because of the protocol. 2. The diary entry for 23 November 2015. This entry was said to record the prescribing of Keflex for another patient. 3. The diary entry for 10 October 2015. This entry records that he "wrote script" for a patient and that "Dr F left, forgot to write" scripts for Amoxil and Panadeine Forte. 4. The diary entry for 2 October 2015. This diary entry is a list of names, including Dr Simpson's wife. The appellant was asked about this entry in light of the entry for 2 October 2015 which records a prescription of diazepam by Dr Simpson, which prescription he admitted was for his wife. Dr Simpson said that he prescribed the drug to ensure that his wife had adequate sleep. He said that he had prescribed for her before, but not while a patient of the surgery. He said he did not treat her in this practice. He said that his wife had been seen by Dr Nygren. He accepted that Dr Nygren's patient records for Mrs Simpson did not record any prescriptions. Dr Simpson claimed that he had spoken to Dr Nygren after he saw his wife, when Dr Simpson came to close the surgery. He claimed that Dr Nygren said he had just seen Mrs Simpson and written a prescription for her. 5. The diary entry for 11 October 2015. This entry states that the patient had "left prescription behind from yesterday in the bus".

Re-examination of Dr Simpson

1. After cross examination, Dr Simpson was re-examined by his counsel on a range of matters including his "perfect" police record; his record with the Dental Board (only one reprimand, some 12 years previously); that Dr Simpson being no threat to the public in that no patients had been abused or mishandled. Dr Simpson admitted that he had made mistakes and errors, but that the UDT positive readings were all explained by hospital records and his hospitalisations. He said that the drugs were not a danger to the public.
2. In relation to his conviction for the supply of a prohibited drug, he submitted that he had pleaded guilty but had successfully appealed. He said that he was not a user and the drugs were never in fact supplied.
3. He agreed that he had in the past lacked insight and that he had a lapse of judgement, for which errors he apologised. He said that he was not intentionally trying to break the conditions while prescribing while suspended is said that he had sought appropriate treatment from a GP and a psychiatrist, and would not transgress again. He said he had learned from the whole experience, and the lengthy period of time for which he had been suspended, and said that "wouldn't do it again".

Written submissions of 28 April 2016

1. During the hearing, the Council provided with Tribunal with written submissions. Those submissions set out the factual background, the relevant legislative provisions and the principles governing the determination of an appeal against s 150 orders.
2. In summary, the Council submitted that suspension of the appellant's registration was appropriate for the protection of the public, and/or that suspension is otherwise in the public interest in view of: 1. The appellant's conviction for supply of a prohibited drug namely cocaine, particularly given his admission that he had received the drug from a patient, and the fact that the drug was found in his possession while practising dentistry. 2. The appellant's positive UDT results, many of which remain unsatisfactorily explained, and his failure to attend for UDT as required by the conditions imposed by him. 3. The appellant's failure to abide by his suspension, by prescribing medication to patients during a time that he was suspended, and in his failure to document the prescriptions in the patient's dental records.
3. The Council further submitted that the appellant's conduct (particularly the failure to abide by his suspension) demonstrated a disregard for the regulatory system and undermined the protective function of the Council's orders. It submitted that compliance with regulatory requirements is an integral part of the practice of dentistry: Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 114.
4. The Council asks that the appeal be dismissed with costs.

Oral submissions of Ms Baker

1. At the conclusion of the hearing, Ms Baker submitted that the Council had three areas of concern, namely Dr Simpson's criminal conviction, his UDT, and his prescribing medication while being suspended. She submitted that his demeanour indicated that he was not a credible witness, and described his evidence as "hedging and shifting" on each topic to suit himself. She described his evidence as equivocal.
2. She submitted that it was apparent that Dr Simpson had not read the UDT Protocol. She submitted that he should have known that he had to comply with the Protocol. She submitted that, putting his case at its highest, Dr Simpson did not comply with the conditions that had been placed on his registration in June 2015. She noted that there was not one month in which he failed to return a positive drug finding, in circumstances where he had no records of the drugs he had consumed.
3. She submitted that Dr Simpson continued to show a lack of insight into his transgressions, and a lack of desire or ability to comply with the Council's conditions, resulting in a risk to the public. She submitted that his failure to comply with the Council's conditions on its own raised serious questions, namely the fundamental obligation of practitioners to comply with orders of their regulatory body.
4. She submitted that the evidence established a complete lack of adequate record keeping surrounding the writing of the prescriptions while suspended.

Dr Simpson's submissions of 26 May 2016

1. Dr Simpson commences his submissions by emphasising the difficulties that he experienced when he was not represented on the second day of the hearing. He states that he does not criticise the Tribunal, and acknowledged that it had been very patient with him. He emphasises that he is "depending heavily" on his written submission and states that, given the suspension has been in place since 18 September 2015, he recommends that the suspension be lifted. There follows some 16 pages of submissions. Relevantly, Dr Simpson submits that he has undergone a period of introspection and self-examination, and has discovered areas where he can improve; he attends a psychologist/counsellor; he has learned from his mistakes; his "prescribing whilst suspended" he now recognises was a very large error of judgement, which was done without any intention of malicious disregard to the suspension, rather it was due to a misguided thought process.
2. Dr Simpson agrees that there are "three pillars of concern" about his behaviour: his drug conviction, his drug testing, and prescribing whilst suspended. In relation to what he describes as his "drug conviction", he agrees that 'it is an undeniable fact that a conviction has been recorded - a stain which cannot be removed". The Tribunal notes that this submission overlooks the fact that his conviction has now been quashed by reason of the decision of the District Court referred to above. Dr Simpson refers to his conviction as having been "degraded" (presumably he means downgraded) to "a section 10". He submits that: the Tribunal should recognise that to get a judge to go against an existing verdict is not a very common occurrence, and speaks volumes to the low grading of the offence. (bolding and underlining as in original)
3. He denies that he is a drug user or drug supplier. He submits that: Given the following responses - the trust allowing me to practice in the June 17th meeting: the consequential lack of illicit drugs in the UDT over 51 tests in a 6 month period; the matter being dealt with satisfactorily in the District Court; the downgrading to a section 10 on appeal; the report of Dr Flood, showing no evidence of stimulants; the minute amount of drugs found; my excellent criminal record; my standing with my patients and the community - that this is a REGRETABLE and AVOIDABLE situation is recognised, but does NOT constitute A DANGER TO THE PUBLIC and should NOT be a factor that MAINTAINS MY SUSPENSION. If it gave an extra comfort to the Tribunal, I would be willing to continue the UDT for any period nominated. (capitalisation as in original)
4. He then sets out submissions explaining the presence of the various drugs detected in the UDT at some length. In conclusion, he submits: In summary, taking into account that the drugs are ALL either prescribed or given in Hospital; are of a non illicit nature; that the "positives" mentioned as ""positives", are medications prescribed in hospital, and are of a non-illicit nature. They have been prescribed for a PURPOSE by doctors; have not been taken in order to be NON COMPLIANT; the lack of knowledge of the Dental Council; and the false Midzolam Report. The Tribunal will recognise that the medications taken were done so legitimately; due to circumstances as a health issue; without deliberately trying to avoid the conditions of the UDT; and the drugs taken were of "benign" nature, without an after-effect that would "affect the safety of the public" and thus, on the balance of probability, Should Not Act to maintain my suspension. (bolding, underlining and capitalisation as in original)
5. In relation to "prescribing whilst suspended", he agrees that this is "serious", but submits that there are "some mitigating circumstances". Dr Simpson sets out 21 such factors including the following: 1) I had in my mind DIVORCED prescribing from treatment of patients. This, although I thought it to be the case at the time, I now recognise was in fact naïve in the extreme, ill advised, and out of character. 2) THIS WAS DONE WITHOUT THINKING OR INTENDING TO BREAK OR GO BEHIND MY SUSPENSION. 3) NO MALICE was implied, simply I was helping out patients who were in painful or dire circumstances. ... 4) There were a limited number of patients involved (4 over a three month period). 5) There were a limited number of instances (5 of writing prescriptions). 6) The substances prescribed were of in "benign nature" ... 9) Dentists can prescribe much stronger medications eg endone ... 10) Please note: the issue came to light only on my part; had I not given the information THERE WOULD BE NO ISSUE. 11) Understandably I was in a low frame of mind; upset, somewhat resentful of the need of suspension, in my mind; anxious about financial and health issues, confused to the full implications of suspension. However, I DID believe at the time, however naively that I COULD prescribe. 12) Part of my reasoning was that there are two separate authority codes that we use ... These were SEPARATE ISSUES that I had divorced in my mind. This was an ill conceived conclusion ... 13) Prescribing was done, not in the operatory or surgery, but in the reception area. 14) There was NO Dental Equipment involved ... 16) The patients treated were WELL-KNOWN TO ME - I KNEW THEIR HISTORY and had previously been their dentist. ... 18) Did NO HARM to those involved - indeed immense BENEFIT in the form of pain and infection relief was achieved. 19) I HAVE LEARNED FROM THE EXPERIENCE - HAVE BEEN "REHABILITATED" - and will NEVER MAKE A SUSPENSION MISTAKE AGAIN. 20) THERE IS NO RULES IN THE as to conduct while suspended; the words PRESCRIPTION/PRESCRIBING DO NOT APPEAR ANYWHERE - SO IN THIS SPECIFIC INSTANCE, THERE IS NO DEFINITIVE POINT OF LAW about PRESCRIBING; and the weight of say differing codes of prescribing to treatment may carry some significance 21) There are some blurred lines about what can be done while suspended - I CAN CALL MYSELF DOCTOR; KEEP MY PLATE UP; ACT AS PRACTICE MANAGER - IF PRESCRIBING FALLS ON THE OTHER SIDE OF THE FENCE, I OFFER MY CONTRITION; HAVE LEARNT THE LESSON TO BE LEARNT; AND HAVE ALREADY BEEN SUPENDED FOR A VERY LONG TIME.
6. In conclusion to the whole of his submissions, Dr Simpson states: Then, in the final analysis - if the council has recognition "on the balance of probability" that the drug charge (still standing, not as a "danger" as of June 17th, non illicits, before or since etc) - that the benign urine "positives" and the compliance, particularly given the medical evidence DO NOT ENDANGER the public; and also giving recognition to my previous police record, personal position and proffessional standard; the only "pillar" left is that of prescribing while suspended. ... If the object of the suspension is NOT to PUNISH BUT TO PROTECT - then I submit that in the case of prescribing, I have been REHABILITATED, learnt from this lesion with contrition been suspended for a period which will stretch towards a full year (given the time period with the HCCC) which has caused a complete dislocation to my life. ... I have gone though all of this and cannot believe that the writing of several prescriptions, however naïve and ill informed, but not intend to defy, can end a successful career so abruptly and without due consideration. ... I thank the Tribunal for their consideration in this somewhat rambling, repetitive submission - it may be my last chance to restore "my worth of self" and not end my long career in the profession I have loved and dedicated myself to, in a valley of "negativity and failure". (bolding and underlining as in original)

The Council's submissions of 10 June 2016

1. In its further written submissions, the Council again submits that there are three matters which suggest that the s 150 order should be affirmed. They are: 1. The appellant's conviction for supply of drugs. 2. The appellant's positive urine drug tests. 3. The appellant's prescribing whilst suspended (including his failure to keep proper records on these occasions).
2. The Council submits that these matters should be considered cumulatively.

The appellant's conviction for the supply of drugs

1. The Council notes that, before the Tribunal, the appellant denied that he was guilty of the supply (as opposed to the possession) of cocaine. The Council submits that the appellant's answers to the questions concerning his possession of cocaine lacked credibility, noting that he gave evidence that he did not know who the cocaine was for, while also giving evidence that the cocaine may have been a gift from his patient for himself (both answers being at odds with the answers that he gave to police that the cocaine had been given to him to give to a friend). The Council submits that the appellant's answers to these questions were indicative of him "hedging" his responses to give the answers that he perceived would be the least incriminating for present purposes.
2. The Council submits that, in any event, in circumstances where the appellant has been found guilty of the offence of supply, this Tribunal should not "go behind" the finding of the criminal court, particularly in view of the fact that the finding of guilt was affirmed on appeal: HCCC V O'Hagan [2010] NSWNMT 37 at [230]; In Re Dr A.K.S. [2011] NSWMT 14.

Urine Drug Testing

1. The Council notes that following the first s 150 hearing on 17 June 2015, the appellant was subject to a condition that he attend thrice weekly urine drug testing "in strict accordance with the Dental Council of NSW's urine drug testing protocol" for a minimum period of three months. From the date of his suspension on 18 September 2015, the appellant was not subject to this condition, but voluntarily underwent urine drug testing. The appellant ceased UDT in December 2015.
2. The appellant returned positive drug results to a number of urine drug tests during the course of his testing. The appellant also failed to attend a number of urine drug tests. The respondent accepts that the appellant's hospitalisation explains some of these positive results and failures to attend. However, there is insufficient evidence before this Tribunal for this Tribunal to be satisfied that each of the positive results and failures to attend have been adequately explained by the appellant.
3. The appellant has particularised his periods of hospitalisation as 25 June - 2 July 2015; 12 August - 20 August 2015; 19 September - 27 September 2015, 17 October - 26 October 2015; and 31 December 2015 - 2 January 2016. The appellant did not attend urine drug testing on 15 July 2015; 7 August 2015; 10 August 2015; 24 August 2015; and 4 September 2015. It appears that the appellant did not advise the Council of his failures to attend urine drug testing on these occasions. No explanation has been provided as to the appellant's failures to attend urine drug testing on these occasions.
4. The appellant returned positive urine drug tests on the following occasions: 1. 20 July 2015 - positive for morphine trace. 2. 22 July 2015 - positive for Oxazepam and Temazepam. 3. 27 July 2015 - positive for Temazapam. 4. 29 July 2015 - positive for Codeine. 5. 6 August 2015 - positive for Codeine. 6. 2 September 2015 - positive for Codeine. 7. 7 September 2015 - positive for morphine trace. 8. 9 October 2015 - positive for morphine. 9. 9 November 2015 - positive for Codeine. 10. 25 November 2015 - positive for morphine trace. 11. 27 November 2015 - positive for Codeine. 12. 2 December 2015 - positive for morphine trace.
5. The only occasions on which the appellant appears to have advised the Council of an inability to attend UDT were in June and July 2015 (when the Council was advised of the appellant's hospitalisation) and on 11 September 2015, when he advised the Council that he was unable to attend UDT because there was no one in pathology to receive the collection, and that he would be unable to attend UDT until the following Wednesday as he would be out of Sydney.
6. The Council notes that the appellant suggests that the positive results are the result of his consumption of medication (both prescribed and non-prescribed) and has previously suggested that the morphine traces may be the result of the consumption of poppy seeds. The appellant did not keep any records of his medication use during this period (apart from the records kept by the Hospital).
7. The Council submits that, at the very least, the appellant's conduct in respect of his urine drug tests demonstrates a failure to comply with Council conditions and a failure to understand the importance of such conditions. The Council submits that, while the appellant was provided with the UDT protocol by letter from the Council dated 22 June 2015, it is apparent from the appellant's evidence that he did not carefully read the UDT protocol. In particular, the Council submits that Dr Simpson: 1. Did not comply with the instructions in the UDT protocol not to consume poppy seeds. 2. Did not comply with the instruction in the UDT protocol to notify the Council of any prescription or non-prescription medication that he was taking. 3. Did not notify the Council of his absences and missed tests.
8. The Council submits that the UDT Protocol was formulated to ensure that there is integrity in urine drug tests. Dr Simpson's failure to comply with the UDT protocol has rendered the task of determining whether the appellant has engaged in improper drug use impossible. Specifically, the Council submits that if Dr Simpson had promptly notified the Council of the use of prescription and non-prescription medication, then it would have been possible to ascertain whether the appellant's positive results were attributable to that medication. In the absence of such notification, the Tribunal is left with imprecise assertions of the consumption of prescription and non-prescription medication (and possibly, foods containing poppy seeds) as to the reason for the positive drug results.
9. The Council did not contend that the Tribunal needed to make a finding indicating that the appellant was consuming illegal drugs during this period. Indeed, the Council submits that the difficulty with the lack of documentation kept by the appellant is that the Tribunal is not in a position to make any conclusive findings about the reason for the appellant's positive results.
10. The Council notes that Dr Simpson contends that the "target" of the urine drug testing was to identify whether he was taking illicit drugs. The appellant's possession of an illicit drug was the trigger for the imposition of conditions requiring urine drug testing. However, the Council submits that a proper reading of the UDT policy indicates that the purpose of urine drug testing is to identify all drug use by those subjected to urine drug testing (bearing in mind that abuse of prescription, as well as illicit drugs, may present a danger to the public). The Council submits that, as outlined above, the failures of Dr Simpson properly to document the medication that he consumed has adversely affected the integrity of the tests, so that the UDT results cannot exclude illicit or improper drug use by Dr Simpson.
11. In this respect, the Council submits that it is also significant that many of the Dr Simpson's failures to comply with the UDT protocol continued after the September s 150 hearing, during which the appellant was questioned at length about his consumption of medication. It might be expected that, after the appellant was suspended from practice following the September hearing, the appellant would have been more careful in his consumption of medications, and would have kept an accurate and contemporaneous record of any prescription and non- prescription medications that he consumed. It is submitted that the fact the appellant did not do so indicates a lack of understanding of the UDT protocol or alternately a lack of understanding or respect for the protective nature of the condition.

Practice whilst suspended and failure to keep proper records

1. The Council submits that Dr Simpson's conduct in engaging in practice whilst he was suspended is a serious contravention of the National Law in and of itself. The Council submits that it is a fundamental obligation of any health practitioner to observe Council orders. This is particularly so when the order required the appellant not to practice until further notice. Dr Simpson knew that he was suspended and knew - or ought to have known - that he could not engage in dental practice during his suspension. The Council submits that the appellant's claim that that he did not realise that prescribing medication constituted a part of dental practice displays a great deal of lack of insight, and lack of regard for the Council's conditions. The conduct was either done in flagrant disregard for the s 150 conditions, or, if the Tribunal accepts that Dr Simpson honestly believed that he was entitled to continue to prescribe, the conduct demonstrates a complete lack of understanding of the privileges and responsibilities of a prescribing dental practitioner under the Poisons and Therapeutic Goods Act 1966 (NSW).
2. The Council submits that the circumstances in which the prescribing was done must also be considered, particularly Dr Simpson's conduct in coming into the surgery alone on a Sunday to attend to a patient at a time when he knew that he was suspended. That the appellant attempts now to minimise the seriousness of this conduct, in particular, by submitting that Diazepam can be prescribed in higher strengths, that dentists may prescribe stronger medications, and that his conduct "was of immense BENEFIT" to the patient is also indicative of a lack of insight into the seriousness of the appellant's conduct.
3. Finally, the Council submits that Dr Simpson's failure to keep proper records of the patients that he saw during his period of suspension is also a serious matter which would, of itself, found a complaint under the National Law. It is submitted that the Tribunal should reject Dr Simpson's speculation that he was only seeing patients after they had been seen by other practitioners, including Dr Nygren. Dr Simpson himself described Dr Nygren as a good record keeper (and the records available from Dr Nygren confirm this to be the case). Dr Simpson's suggestion that it was acceptable for there to be no record of his consultations because he was dealing with "EMERGENCIES" demonstrates a failure to understand the proper role of documentation in the treatment of a patient and in the practice of dentistry.

Relevant legislation

1. The following provisions of the National Law are relevant to this application.
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. A "NSW provision" is defined in s5 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.
4. Section 150 of the National Law, which provides: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens- (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must- (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section- (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who- (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.
5. Section 159 of the National Law, which provides: 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession- (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under Division 3 or 4 or the alteration of the conditions by the Council; (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. Note : An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Adm inistrative Tribunal Act 20 13 . (2) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K. (3) The appeal is to be dealt with by reconsideration of the matter by the Tribunal and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council when it considered the matter, may be given.
6. Section 159C of the National Law, which provides: 159C Tribunal's powers on appeal [NSW] (1) On an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper. (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.

Relevant principles

1. The Tribunal accepts the Council's submission that, in determining an appeal against s 150 orders, the Tribunal must consider afresh for itself whether or not it is satisfied that it is appropriate to suspend the appellant's registration for the protection of the health or safety of any person or persons or if satisfied the suspension is otherwise in the public interest. While the nature of an appeal pursuant to s 159 of the National Law is unsettled (see the discussion of the authorities in Burton v Osteopathy Council of New South Wales [2015] NSWCATOD 150 at [14] to [22]), it is clear that, in doing so, the Tribunal may receive fresh evidence, and evidence in addition to or substitution for the evidence which was before the Council when it considered the matter.
2. In determining whether or not to take action under s 150, it is not the role of the Council or the Tribunal to make findings of fact or make a determination of the merits of any complaint. In Saedlounia v Medical Council of New South Wales [2015] NSWCATOD 53 the Tribunal noted at [169]: The purpose is protection of the public. In cases such as this where serious allegations have been made which, if true, could require suspension or cancellation of the appellant's registration, but the evidence is incomplete and further investigation is needed, the issue is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring imposition of a condition for protection of the public.
3. In other words, the Council/Tribunal does not determine whether or not the alleged conduct in fact took place, but whether there is a basis for satisfaction under s 150 that it is appropriate to suspend the practitioner for the protection of the health or safety of any person or persons or because the suspension is otherwise in the public interest.
4. In considering this question, the nature of the allegations is relevant: Ord v Nursing and Midwifery Board of Australia [2014] QCAT 688 at [8].
5. The Tribunal is not bound by the rules of evidence: see Sch 5D of cl 2 of the National Law, and s 38(2) of the Civil and Administrative Tribunal Act 2013.

Consideration

1. As noted above, the Council submits that suspension of Dr Simpson's registration was, and is, appropriate in view of: 1. His conviction for supply of a prohibited drug namely cocaine, particularly given his admission that he had received the drug from a patient, and the fact that the drug was found in his possession while practising dentistry. 2. His positive UDT results, many of which remain unsatisfactorily explained, and his failure to attend for UDT as required by the conditions imposed on him. 3. His failure to abide by his suspension, by prescribing medication to patients during a time that he was suspended, and in his failure to document the prescriptions in the patient's dental records.
2. In addition, the Council submits that Dr Simpson's conduct (particularly the failure to abide by his suspension) demonstrates a disregard for the regulatory system and undermines the protective function of the Council's orders; compliance with regulatory requirements is an integral part of the practice of dentistry:
3. Finally, the Council submits that Dr Simpson was not a credible witness.
4. It is convenient to first make some observations about Dr Simpson's demeanour and credibility. The Tribunal's carefully observed Dr Simpson during the Tribunal and listened to his responses to questions. The Tribunal formed the view that Dr Simpson did lack insight into his own behaviour, which lack of insight continues. The Tribunal reaches that view based on Dr Simpson's own evidence:

• about the "blurred line" of the effect of suspension;
• of his inability to "divorce" the writing of the prescription from the practice of dentistry;
• that the only reason the Council knew about his conduct was that he had answered the question honestly. (Dr Simpson made a similar remark in factor 10 set out in his written submissions "had I not given the information there would be no issue").
• that the prescribing having taken place in the reception area, rather than the surgery, was a mitigating factor.
• that he said that his patients "knew" that he was suspended, and no one asked him to write.
• that there is no definitive point of law about prescribing medications while being suspended.

1. Some of Dr Simpson's evidence was very unconvincing. For instance, he told the Tribunal that he had absentmindedly put the cocaine into his wallet when it had been given to him by a patient, and then forgotten about it. Yet the fact sheet records that he was seen removing his own wallet from the black document wallet, and placing his wallet in his pants before offering the police the black document wallet to search.
2. In relation to his evidence about prescribing while suspended, namely that:

• he had formed a view about the medical condition of each patient when writing prescriptions (while suspended);
• he prescribed medication for patient PS on 18 September 2015, having not conducted a full examination, by reason of the patient's presentation being a type of "emergency", the Tribunal has formed the view this this evidence is not credible.

1. And his evidence that he prescribed medication for patients, including his own wife, while he did not have professional indemnity insurance in place, and that it was his usual practice to post-date prescriptions, was unacceptable.
2. As to his evidence in relation to his diary entries for the prescription drugs, there is substance in the Council's submission that the evidence establishes a complete lack of adequate record keeping surrounding the writing of the prescriptions while suspended.
3. In light of these matters, the Tribunal concludes that there is substance in the Council's submission that Dr Simpson was not a credible witness, and that his equivocal evidence "hedg[ed] and shift[ed]" on each topic to suit Dr Simpson.
4. The Tribunal now considers the factors claimed by the Council as warranting Dr Simpson's continued suspension. The Tribunal accepts the Council's submission that these matters should be considered cumulatively.
5. The Tribunal accepts the Council's submission that, in circumstances where Dr Simpson has been found guilty of the offence of supply, the Tribunal should not "go behind" the finding of the court, particularly in view of the fact that the finding of guilt was affirmed on appeal. Dr Simpson's submissions that his conviction has been "degraded" (or "downgraded") is incorrect, and should be rejected. This matter does not favour any variation in the present suspension of Dr Simpson's registration as ordered by the Council.
6. The Tribunal notes that the appellant attended more UDT than he was required to, and accepts that his hospitalisation explain some of the positive results and his failures to attend on some occasions. However, the Tribunal is not satisfied that each of the positive results and failures to attend have been adequately explained by the appellant. In addition, the Tribunal accepts the Council's submission that Dr Simpson had not read the UDT Protocol, and that Dr Simpson did not comply with the conditions that had been placed on his registration in June 2015. This matter does not favour any variation in the present suspension of Dr Simpson's registration as ordered by the Council.
7. As to prescribing while being suspended, these allegations are admitted by Dr Simpson. The Tribunal considers that there is great weight in the Council's submission that Dr Simpson's conduct in engaging in prescribing whilst he was suspended is a serious contravention of the National Law in and of itself. The Tribunal accepts the Council's submission that it is a fundamental obligation of any health practitioner to observe Council orders. This is particularly so when the order required Dr Simpson not to practice until further notice. Dr Simpson knew that he was suspended and knew - or ought to have known - that he could not engage in dental practice during his suspension. The Tribunal accepts the Council's submission that Dr Simpson's claim that he did not realise that prescribing medication constituted a part of dental practice displays a great deal of lack of insight, and lack of regard for the Council's conditions. The Tribunal accepts that the conduct was either done in flagrant disregard for the s 150 conditions, or, if Dr Simpson honestly believed that he was entitled to continue to prescribe, was conduct which demonstrated a complete lack of understanding of the privileges and responsibilities of a prescribing dental practitioner under the Poisons and Therapeutic Goods Act 1966 (NSW).

Conclusion

1. The Tribunal's task is to reconsider Dr Simpson's suspension in the light of the evidence. As has been noted, upon review, pursuant to s 159C, the Tribunal may terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper.
2. The original order was that Dr Simpson's registration be suspended. The Tribunal can order suspension of registration only if (a) it is appropriate to suspend the practitioner for the protection of the health or safety of any person or persons, or (b) the suspension of the practitioner is otherwise in the public interest.
3. The Tribunal considers that, in light of the matters set out above, that each limb of s 150 of the National Law is satisfied.
4. The Tribunal accepts the Council's submission that Dr Simpson continues to show a lack of insight into his transgressions, and a lack of desire or ability to comply with the Council's conditions, resulting in a risk to the public. The Tribunal accepts that Dr Simpson's failure to comply with the Council's conditions raises serious questions, namely the fundamental obligation of practitioners to comply with orders of their regulatory body.
5. The Tribunal does not have confidence in Dr Simpson's ability to conform with acceptable practice standards, and is satisfied that suspension of his registration is in the public interest. The health and safety of the public is the paramount consideration for the Tribunal, and the appropriate and necessary order is to dismiss the appeal and to confirm the registration of Dr Simpson's suspension.

Costs

1. The Council seeks its costs. This is a costs jurisdiction, and costs normally follow the event: Health Care Complaints Commission v Philipiah [20 13] NSWCA 342 at [42]; Health Care Complaints Commission v Marino (No. 2) [2016] NSWCATOD 75 at [40].
2. As the Council has been successful, the Tribunal proposes to make an order that Dr Simpson pay its costs, as agreed or assessed. Dr Simpson has leave to file submissions if he seeks some other order, including that no order as to costs should be made. Such submissions should be made within 14 days after the publication of these reasons. The Council may reply within a further 14 days if necessary. Any further decision as to costs will be made on the papers.

Orders

1. The Tribunal orders that: 1. The appeal is dismissed. 2. The suspension of Dr Simpson's registration as a general dentist is confirmed. 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: 03 August 2016