Smithson v Medical Council of New South Wales - [2016] NSWCATOD 82 - NSWCATOD 2016 case summary — Zoe

NSWNSWCATOD

Smithson v Medical Council of New South Wales

[2016] NSWCATOD 82

NCAT Occupational|2016-04-22|Before: Professor P, Procopis AM, Dr P

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Source facts

Court

NCAT Occupational

Decision date

2016-04-22

Before

Professor P, Procopis AM, Dr P

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

5.The applicant shall pay the Council's costs of and incidental to the proceedings as agreed and failing agreement within 28 days of the date of this order as assessed under Div 3 of Part 7 of the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: PROFESSIONAL DISCIPLINE - Application by former psychiatrist for re-registration - where former Medical Tribunal of NSW found practitioner guilty of professional misconduct - boundary violation and impairment. Where applicant asserts he is no longer impaired. Where applicant concedes if re-registered his registration should be subject to conditions. HELD appropriate to make re-instatement order. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law Health Practitioner Regulation National Law (NSW) Amendment (Review) Act 2016 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Medical Practice Act 1992 (NSW) (repealed) Cases Cited: Ameisen v Medical Council of NSW [2015] NSWCATOD 48 Bahramy v Medical Council of NSW [2015] NSWCA 384 Briginshaw v Briginshaw (1938) 60 CLR 336 Ex Parte Tziniolis: Re the Medical Practitioners Act (1966) 67 SR 488 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Karalasingham [2007] NSWCA Health Care Complaints Commission v Quasim [2015] NSWCA 282 In re Jason Martin [2010] NSWMT 13 Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58 Re Lenehan [1948] HCA 45; 77 CLR 403 Re Mansoor Haider Zaidi [2006] NSWMT 6 Roberts v Medical Council of NSW [2015] NSWCATOD 35 Zaidi v HCCC [1988] NSWSC 335 Category: Principal judgment Parties: Jonathan Tan Meng Kwang Smithson (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: E Pike (Applicant)

[2]

[3]

Introduction

Mr Jonathan Tan Meng Kwang Smithson (the applicant) applied to the Tribunal on 2 November 2015 for a re-instatement order under s 163A of the Health Practitioner Regulation National Law (the National Law). He requires such an order to be re-instated to the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) for the Medical Board of Australia. This is because, in June 2000, the now repealed Medical Tribunal of NSW (the Medical Tribunal) made an order removing his name from the register then in place. The Medical Tribunal also ordered that the applicant could not apply to be re-registered for a period of three years.
The Medical Tribunal found the applicant was guilty of professional misconduct as defined in the Medical Practice Act 1992 (NSW) (repealed) and that he suffered an impairment. The particulars of the professional misconduct were, in summary, that the applicant, then a practising consultant psychiatrist, failed to maintain proper professional boundaries with a young female patient, that he maintained an inappropriate personal and sexual relationship with her, and engaged in self-injecting and injected the patient with heroin. The applicant became addicted to heroin. While he was included in the Impaired Registrants Program, administered by the then Medical Board of NSW, he failed to disclose his addiction and was dishonest in his reporting to Medical Board appointed doctors.
The impairment complaint, which the Medical Tribunal also found proved, was that the applicant suffered severe depression and that he was addicted to narcotics.
The applicant did not appear before the Medical Tribunal but admitted the majority of the particulars of the complaint.
The applicant now asserts that he has overcome his drug addiction, and that he is a fit and proper person to resume the practice of medicine. He concedes that, because of his past behaviours, and the significant length of time since he has practised, his registration should be subject to conditions.
The Medical Council of NSW (the Council) was joined as a party to the proceedings in December 2015. Mr C Fesel, solicitor, who appeared on behalf the Council, told us that the Council neither consented to, nor opposed, the applicant's application.
The events that led to the disciplinary proceedings occurred principally in 1995/6. The applicant's wife, who was pregnant, tragically and unexpectedly committed suicide in October 1995. Immediately after his wife's death the applicant suffered a major depression, and was prescribed anti-depressants by his general practitioner. He consumed alcohol to excess and returned to work when he was unwell. This occurred at a time when the applicant was treating Patient A with psychotherapy. Patient A was a young woman who had a complex psychiatric diagnosis. It is the applicant's evidence that he first engaged in a sexual relationship with Patient A in February 1996 on the day that he received a copy of the Coroner's report into his wife's death.
The applicant's life thereafter spiralled downwards. He used cocaine, became addicted to heroin, and was suspended from his employment. In 1999 he surrendered his registration. He continued to use illicit drugs, including heroin and cocaine for many years, albeit he had periods of abstinence in around 2000. From 2005 his drug use was intermittent. He has not worked since surrendering his registration. He has been in receipt of social security entitlements (sickness benefits, and since 2000 to date, a Disability Support pension). His only employment has been some limited work to comply with the requirements of the Legal Practitioners' Admission Board and in co-writing a chapter of a medical publication.
It is the applicant's evidence, supported by documented thrice weekly urine drug screens, that he has been drug free since 2013. He has attained undergraduate and post graduate degrees since 2008 (Bachelor of Laws (LL.B) and Master of Health Law), completed the Practical Legal Training requirements, and gained admission as a Legal Practitioner in NSW.

[5]

Background

The applicant is presently aged 53. In 1986 he was admitted to the degree of Bachelor of Medical Science and in 1988 he obtained a Bachelor of Medicine degree from the University of Newcastle. He was first registered as a medical practitioner in 1988. In 1994 he gained his fellowship to the Royal Australian and New Zealand College of Psychiatrists. In 2008 he obtained the degree of Bachelor of Laws from the University of Sydney, and in 2012, obtained a Master of Health Law from the same university. That year he was admitted as a legal practitioner.
The applicant says that during his undergraduate studies he only occasionally drank alcohol and "had no experience with illicit drugs other than using marijuana on about five occasions".
In 1989 the applicant married a nurse he met the previous year during his internship.
In October 1995 the applicant's wife, who was in the early stages of pregnancy, took an overdose of paracetamol. She died approximately four days later in the Intensive Care Unit, Royal Prince Alfred Hospital. Prior to her suicide the applicant asserts his late wife had developed an anxiety disorder and became agoraphobic for a period of time in 1994.
As already noted, shortly after his wife's death, the applicant was prescribed anti-depressant medication by his general practitioner. The applicant returned to work four weeks after his wife's death, but was so distressed by her death that he too attempted suicide on two occasions.
The applicant first commenced treating Patient A, who he describes in his statement as a "young and attractive female" in 1994. The applicant asserts he recognised countertransference issues with Patient A at his first interview with her. The applicant further asserts that Patient A concealed the extent of her illicit drug use from him, which, he says, if "known would have made her suitability for psychotherapy doubtful".
The applicant asserts that, on 16 February 1996, he received the Coroner's report on his wife's death. He had several drinks and was extremely upset and tearful. The applicant further asserts that, on that evening, he received a telephone call from Patient A's mother requesting he attend on the patient at her mother's home because she was agitated and violent. The applicant asserts his judgment in agreeing to attend and see Patient A that evening "was obviously poor". The applicant says because Patient A's mother said her daughter may "have taken something" he decided to observe her in close proximity to the hospital that was the regional centre for the admission of overdose patients. He describes this action "as another bad decision".
The applicant took Patient A in his car to a park in the vicinity of the hospital. He asserts: I elected to observe her myself. This was, I believe, part of an inappropriate and misguided attempt to "protect" a "special" patient who was extremely challenging and difficulty, and in whom there were almost certainly transference and counter transference issues, exacerbated by the death of my wife and, possibly, the patient's anxiety and insecurity about the impact (real or imagined) the death would have on me and her therapy.
After Patient A vomited, and had removed her dress, the applicant drove Patient A to his home where they both consumed alcohol, and then had sexual intercourse.
Shortly after the events of 16 February 1996 the applicant asserts he was introduced to heroin by Patient A. The applicant states that he paid for the drug, which Patient A purchased, and it was shared between them. The applicant became addicted to heroin. His relationship with Patient A ended in late 1996. He concedes he did not, when his professional relationship with Patient A ceased, refer her to another practitioner.
The applicant, who had practised in Newcastle after graduation, left that city and returned to Sydney in 1997.
The applicant commenced working in the south west of Sydney in 1997 as a part-time staff specialist. But he explains in his statement that his performance was seriously impaired by his increasing drug use. In about December 1997 he was admitted to Westmead Hospital and thereafter did not return to work.
The applicant asserts that in 1998 he heard that Patient A had died from a heroin overdose.
The Medical Tribunal determined a complaint brought by the Health Care Complaints Commission against the applicant in 1999. That Tribunal noted Patient A asserted that the sexual relationship with the applicant commenced on 26 December 1995, not in February 1996 as asserted by the applicant. The Medical Tribunal made an order cancelling the practitioner's registration on 29 June 2000.
In 1999 the applicant first enrolled in legal studies. He again enrolled in 2000 and 2002 but asserts he withdrew "after my income protection payments ceased".
In 2000 the applicant commenced attending "12 Step Fellowship Meetings, the Doctors in Recovery Group", but he relapsed after the Medical Tribunal hearing.
Between 2005 and 2007 the applicant completed his legal studies leading to the award of a Bachelor of Laws degree. He then completed a Master's degree in Health Law in 2012. In 2013 he applied to the Legal Practitioners' Admission Board and was admitted as a solicitor that year.
In 2005 the applicant commenced a de facto relationship with his present partner. He asserts that he has received and continues to receive significant support from his partner. He also asserts he received significant assistance from his father up to the time of his sudden death in 2014. The applicant further asserts that the nature of his relationship with his mother has changed. While the relationship was, from his childhood, a troubled one, now due to his mother's ageing and other vulnerabilities, it does not cause the stress to the applicant that it did in the past.
The applicant asserts he continued to use heroin after the Medical Tribunal proceedings and that he gradually reduced his use and ceased using heroin altogether in 2013. He asserts that he was aided by methadone and buprenorphine treatment. At the date of the hearing before us the applicant's medication had been reduced to 1mg buprenorphine daily.
The applicant says he currently attends Doctors in Recovery (ADR) on a weekly basis, has attended four annual conferences of ADR, regularly attends Narcotics Anonymous and is secretary of his home group.
The applicant has attended thrice weekly urine drug screens since 19 August 2013. All results, except two, have been negative. The applicant asserts one positive test was due to his consumption of poppy seeds and the other the result of mistakenly taking panadeine forte instead of paracetamol.
The applicant commenced consultations with Dr Jonathan Phillips, psychiatrist, in 2014. He also regularly sees Dr Keith Roberts, a psychiatrist with drug and alcohol expertise for review and monitoring each four to five weeks. He also consults Dr Alex Wodak every two to three weeks, and sees Dr Anura Thalagala regularly. The applicant asserts that Dr Thalagala is "gradually reducing my dose of buprenorphine".

[6]

The relevant statutory provisions

This application is brought under Division 7 of Part 8 of the National Law. Section 163A (1) provides a person may apply to the appropriate review body (in this case the Tribunal) for the review of a "relevant order". Section 163A (4) (b) defines a "relevant order" to be "an order that a person's registration as a registered health practitioner be cancelled".
The applicant in proceedings under s 163A of the National Law bears the onus of proving he is a person of good character, and is presently qualified to be registered as registered medical practitioner. It was not in dispute that the standard of proof to be applied by the Tribunal in determining the applicant's application is the civil standard of proof, that is, on the balance of probabilities. In the exercise of this jurisdiction, the Tribunal is guided and informed by the objects set out in s 3 (2) (a) and s 3A of the National Law. The Tribunal's role is one which is protective of the public. As a consequence, the Tribunal must be satisfied to a high level of probability that the applicant is "fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence". (see In Re Jason Martin [2010] NSWMT 13; Briginshaw v Briginshaw (1938) 60 CLR 336) Thus, the onus an applicant bears in a review applicable is a high onus.
The Tribunal's powers on review are found in s163B. That section relevantly provides as follows: (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following-- (a) dismiss the application; ... (c) make a reinstatement order; (3) A "reinstatement order" is an order that the person may be registered in accordance with Part 7 if-- (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time.
The Tribunal's obligations in conducting the inquiry for review of the earlier order are found in s 163C. That section now provides: (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division.
We pause to note that these proceedings were heard prior to the amendments made to the National Law by the Health Practitioner Regulation National Law (NSW) Amendment (Review) Act 2016 (NSW) which commenced operation on 15 May 2016. As the legislation then in force did not provide for a contradictor, the Presiding Member had, prior to the commencement of the hearing, made an order that the Medical Council should be joined as a party to the proceedings to act in the role of contradictor.
Section 3 of the National Law sets out the objectives and guiding principles of the law, as those objectives and principles apply to the national registration scheme. The relevant parts of s 3, for the purposes of this hearing, are as follows: (2) The objectives of the national registration and accreditation scheme are-- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and ... (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; ... (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
As in all applications in which the Tribunal in NSW is involved under the National Law, the guiding principle and object in s3A applies. That section provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
Although determined prior to the introduction of the National Law, principles dealing with re-registration applications under repealed legislation remain relevant and apposite to this application. Those principles are not in doubt and have been discussed in many decisions of courts, including the High Court of Australia, intermediate appellate courts, as well as tribunals. (see Re Lenehan; [1948] HCA 45; 77 CLR 403; per Latham CJ, Dixon and Williams JJ at [33] Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 488; Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]; Zaidi v HCCC [1998] NSWSC 335 per Mason P at 15; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637).
In In Re Jason Martin the Medical Tribunal explained the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction being exercised is for the protection of the public.
Although decided in the context of lawyers who have been removed from the roll of practitioners, the principles enunciated in such cases are generally apposite to these proceedings. The High Court has made it plain that the power to re-instate should "be exercised with great caution and only upon solid and substantial grounds". However a court (or a tribunal) should exercise its discretion having regard to the facts of each case (see Lenehan).
While found in a dissenting judgment, the remarks of Kirby P (as his Honour then was) in Dawson have been adopted and applied in other decisions in the Medical Tribunal and other health practitioner disciplinary tribunals. His Honour explained: There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance.
In In Re Jason Martin 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 will 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". The Tribunal explained "in making that assessment [the tribunal] may draw inferences from what has happened in the past and in particular, what led to him [her] being removed from the Register".
When considering the issue of "good character" the principles set out in HCCC v Karalasingham [2007] NSWCA 267 in the reasons of Basten JA are instructive. His Honour, at [45] explained the words " 'not of good character' do not bear a special or technical meaning". His Honour went on to discuss situations, by reference to authority, where personal conduct, as distinct from professional misconduct, may be relevant to the question of a practitioner's good character.

[7]

A preliminary jurisdictional issue

No submissions were directed to whether or not the order of the Medical Tribunal was a "relevant order" reviewable by this Tribunal in circumstances where, prior to the former Tribunal hearing, the practitioner had voluntarily surrendered his registration and the disqualification period imposed by the Medical Tribunal had expired.
As earlier noted, s 163A(4)(b) defines "a relevant order" as "an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession".
We note that under s 163B(1)(c) the Tribunal is empowered to make a reinstatement order. A re-instatement order is defined in s 163B(3). Section 163B(4) empowers the Tribunal to impose or alter conditions on a person's registration when making a re-instatement order.
A fundamental question arises. Are we reviewing a "relevant order"? A similar factual situation confronted the NSW Court of Appeal when hearing the appeal in Health Care Complaints Commission v Do [2014] NSWCA 307. Meagher JA held in that case that, as the practitioner was no longer registered at the relevant date, and there was no disqualification period in place, it was not necessary that the former practitioner apply to the Tribunal for a re-instatement order, but rather she could apply directly to the Medical Board of Australia for re-instatement.
Subsequently s 149E was amended to require application to the Tribunal if a practitioner's registration was cancelled even if a disqualification period had expired. In Bahramy v Medical Council of NSW [2015] NSWCA 384 the Court of Appeal found that an order deregistering a practitioner under s 64(1) of the Medical Practice Act 1992 (NSW) (repealed) had the same meaning as "cancelled" under s 287 of the National Law. Section 287 is a transitional provision. The Court of Appeal held at [26] A number of points arise out of s 287. First, there was no exactly equivalent provision in the Medical Practice Act which empowered the Medical Tribunal to cancel a medical practitioner's registration: rather, as already noted, the power in s 64(1) was to direct that the relevant person be deregistered. However, in our view, and as noted at [18] by NCAT, the concepts of deregistration and cancellation of registration are relevantly the same. Given that s 287 is in Pt 12 of the National Law which contains the Transitional Provisions and is, therefore, itself a transitional provision, the deregistration of the appellant under the Medical Practice Act constituted the cancellation of his registration for the purpose of s 287(1). Accordingly, the decision of the Medical Tribunal of 6 June 2008 continues as if it had been made under the National Law by "the responsible tribunal" for the participating jurisdiction, namely, New South Wales.
The Court of Appeal held that the deregistration order made by the former Medical Tribunal was a "relevant order" that could be reviewed under s 163A of the National Law.
Section 64 (1) (1A) and (2) of the Medical Practice Act provided as follows: (1) The Tribunal may by order suspend a person from practising medicine for a specified period or direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person): (a) that the person is not competent to practise medicine, or (b) that the person is guilty of professional misconduct, or (c) that the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside New South Wales, and the circumstances of the offence render the person unfit in the public interest to practise medicine, or (d) that the person is not of good character. (1A) The Tribunal must by order direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person) that the person has contravened an order or condition of the person's registration that is a critical compliance order or condition under section 61. (2) An order that a person be deregistered is an order that the person's name be removed from the Register or (if the person has already ceased to be registered) that the person not be re-registered.
The provisions of s 64 are analogous to, but not identical with, s 149C of the National Law. The Medical Practice Act did not contain an identical provision to s 149 C (4). That provision is in the following terms: (4) If the person is no longer registered, the Tribunal may-- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.
In this case the former Medical Tribunal made the following order: That the name of the practitioner be removed from the Register. No application for registration is to be made until three years from today's date.
Applying the reasoning of the Court of Appeal in Bahramy v Medical Council NSW we conclude that the order of the Medical Tribunal is a "relevant order" for the purposes of s 163A and is reviewable, notwithstanding the practitioner had surrendered his registration before order was made.
We note however, that the definition of "relevant order" does not include the situation where s 149C (4) applies except to the extent a Tribunal also makes an order under s 149C (7). The Issues requiring determination
It is convenient that we commence by discussing the first two issues identified earlier in these reasons. We then propose to consider issues of remorse and insight, and the fitness of the applicant to engage in the professional practice of medicine. We will conclude our discussion by considering the conditions, which if implemented, would adequately protect the public if the applicant is restored to the register.

[8]

Does the evidence support the applicant's assertion that he has overcome his drug addiction and major depression?

The applicant's statement and his oral evidence is to the effect he is currently in good health. He engages in regular exercise, is on no medications except a tapering dose of buprenorphine. He does have Hepatitis C as a result of his drug use but is reviewed at a hospital on a regular basis. He asserts he has many strong and supportive friends.
The applicant asserts at [29] of his statement: With the passage of time, the process of growing older, and having to come to terms with multiple losses and my reaction to them, I have lost much of the egocentricity and false sense of invulnerability of youth and instead have a more realistic and balanced attitude to life. Instead of "vaulting ambition" driven by insecurity and neediness, I simply wish to live a useful life, within the limits of my abilities. I have finally become "comfortable in my own skin".
In dealing with his potential for relapse at [132] of his statement the applicant explained: I recognise that a person's well-being cannot be taken for granted and that an appropriate level of self-care, coupled with attention to ensuring expectations are realistic, is always needed. A corollary of this is that while I do not experience any cravings or desire to use substances, and do not believe I ever will, observations of other in 12-step groups and of myself suggest that vigilance (or mindfulness) must be diligently maintained so that unhealthy or "unskilled" patterns of thinking do not take hold. I know this is even more important for those like me who have in the past succumbed to destructive addictive behaviours.
We had the benefit of hearing from Dr Jonathan Phillips (Dr Phillips), Dr Michael Diamond (Dr Diamond) and Dr Keith Roberts (Dr Roberts) and reading their respective reports. Dr Diamond was retained by the Medical Council. His report and evidence were of great assistance to us as was the evidence of Dr Phillips. We also had the benefit of reports by Dr Alex Wodak, Dr Glenys Dore, Professor Philip Mitchell, and Dr Anura Thalagala. None of the latter practitioners was required for cross-examination.
The general thrust of the evidence of those experts who did comment on the potential for relapse involving the use of illicit drugs was broadly similar. Their opinions are perhaps best reflected in the comments of Dr Wodak who said in his report dated 26 January 2016: [t]he applicant has now reached a stage of stable abstinence from illicit psychoactive drugs. The risk of relapse can never be said to be zero but I am confident that this risk is now very small. Nor do I see this changing in the future. … I do not believe that the severe and protracted alcohol and drug problems which dominated [the applicant's] life for many years should now be a barrier to his capacity to practise medicine in the future safely and well.
In his report dated 5 February 2016 Dr Philips succinctly opined "I believe his days of addiction are behind him" and noted that Dr Wodak would prepare a report relevant to this topic. Later in his report he noted "the road to abstinence has been difficult, as is often the case". After noting the applicant's current medication would cease "in the near future", he opined "[t]he indicators are that the applicant is now persistently drug free. This will continue in the future". He also stated that the applicant, who he had seen on twenty-two occasions, had been "fearless in attending to the task of understanding his psychological problems in the past, and the link between these matters and his ethical transgression". Earlier, Dr Philips opined the practitioner "does not suffer currently from any diagnosable psychiatric disorder, or any diagnosable personality disorder. He is not drug addicted either".
In his oral evidence Dr Roberts cogently pointed out that one could never eliminate the risk of re-offending and said "that everyone was at risk".
While Dr Diamond's report does not directly address the question we have posed insofar as it concerns drug addiction, his overall comments were of great assistance to us. He opines: … [the applicant] has engaged in a remedial process as described in his statement and as assessed at examination that supports a view that the registration body can be assured that despite his residual personality vulnerabilities, he has sufficient safeguards, insight and understanding into his offending conduct so as to now be capable of practising safely. My opinion now is that there is not concern about his ability to ensure that his patients and those who deal with him are adequately protected.
We had the benefit of the expert opinion of a number of eminent psychiatrists on the topic of the likelihood of relapse into major depression and/or drug addiction. While expressing appropriate reservations about predicting future conduct or psychiatric vulnerability of the practitioner, the overall tenor of the experts' evidence in respect of future drug addiction was one of minimal risk. We found Dr Diamond's evidence, which acknowledged the applicant is not free from vulnerabilities, but has insight into those vulnerabilities and employs effective strategies, to be compelling. We accept his evidence on this issue in its entirety. Thus, we are satisfied that notwithstanding the applicant's significant and long history of illicit drug use, future drug related conduct is not likely to be an issue.
Further, as we will later discuss, we find conditions including urine testing conditions to be monitored by the Medical Council will ensure patient safety.
We were somewhat troubled to learn that the applicant did not have a current future appointment with Dr Phillips. This was in circumstances where the applicant had sought out Dr Phillips, who provided an adverse report about the applicant for the former Medical Tribunal proceedings, and had seen him on twenty-two occasions. The applicant said he would make an appointment with Dr Phillips shortly. His failure to continue the relationship with Dr Phillips raised a lingering doubt with us about the applicant's credibility.
But overall, we are fortified in our assessment of the lack of risk of psychological relapse by the fact the applicant has maintained a long term doctor/patient relationship with Dr Roberts and Dr Wodak, that he continues to see his treating drug prescriber, Dr Thalagala, has a reliable long term partner, and network of good support persons. Further, his troubled relationship with his mother, which appears to have been at the root of some of his vulnerability now has a different dimension and dynamic.

[9]

Is there a risk the practitioner could engage in a boundary violation with a patient?

There is no suggestion that, other than in respect of his relationship with Patient A, the applicant ever engaged in a so called "boundary violation" with any other patient.
The applicant takes issue with aspects of the original complaint which relied on statements made by Patient A, including the date of the commencement of their sexual relationship, and the provision by the applicant to her of Chloroquine for the purpose of taking her own life. He expresses deep remorse for his conduct as it impacted on Patient A. While, as did Dr Diamond, we found aspects of his behaviour on 16 February 1996 to be bizarre and highly unprofessional, we do not find he is likely to engage in like conduct in the future.
We are unable to make findings to the requisite civil standard about the commencement of the applicant's sexual relationship with Patient A, but find, based on the applicant's own evidence, that by the end of 1995, his relationship with the patient was inappropriate.
We also found his oral evidence about leaving the Chloroquine tablets on a coffee table and permitting Patient A to access them highly improper and negligent. We accept that his conduct at this time was influenced by his addiction. In his report, which was before the former Medical Tribunal, Dr Phillips was highly critical of the applicant's behaviour opining that "his major depressive disorder was not of sufficient intensity to deprive him of the normal capacity to reason". However, after the benefit of seeing the applicant on a regular basis from 2014, Dr Phillips concluded that he had "reason to review my earlier findings, given that I now have a far deeper appreciation of [the applicant's] past psychopathology, the stressors which were active at the time of the events of importance". We have given considerable weight to Dr Phillips' opinion, and conclude the applicant is unlikely to engage in similar conduct in the future.

[11]

Is the applicant a fit and proper person to engage in the practice of medicine?

We had no hesitation in accepting Dr Phillips evidence that the applicant is a man of superior intelligence. We also accept that he has engaged in a methodical, rigorous process to approach this Tribunal for a re-instatement order. He has completed post graduate studies in law, and with adequate to disclosure to the Legal Practitioners' Admission Board of his past conduct, has been admitted to the roll of solicitors in NSW.
We accept that he has engaged in activities to keep abreast of developments in psychiatry by his attendances at clinics with Dr Dore, and more recently at Royal Prince Alfred Hospital. He has the support of Professor Philip Mitchell with whom he has co-authored works in 2014, 2015, and 2016. Professor Mitchell notes that the applicant was the lead author with him on a Chapter "Antidepressant Drugs" for the Elsevier publication "Side Effects of Drugs Annual, Volume 38". Professor Mitchell states that he would be very willing to involve the applicant in future academic meetings and to consider his participation in other research or writing projects.
The applicant was not challenged about his reported recent activities including attendance at Doctors in Recovery group, Narcotics Anonymous, or his volunteer work at the Wayside Chapel, Darlinghurst. We accept his unchallenged evidence of the benefit he has derived from his attendances at Doctors in Recovery and Narcotics Anonymous. The applicant's determination to overcome his addictions by such attendances, his studies in law, and his research work are deserving of significant recognition and we give considerable weight to the efforts he has made to recovery and rehabilitation.
The applicant has spent considerable funds on participating in thrice weekly urinalysis over an extended period. We accept he has undertaken this course not only to demonstrate to a Tribunal his recovery from drug addiction, but also as a tool to assist him to stay "clean". Although there have been two positive samples during the period of supervised urinalysis, it is possible there were reasons for those samples. In any event, we do not regard the two results as sufficient to be a disqualifying factor to re-instatement. However, we find to ensure the health and safety of the public, and to assist the applicant, ongoing urinalysis should be a condition of the applicant's re-registration.
The applicant's attitude to the receipt of a Disability Support Pension was of some concern to us. He acknowledged that he has been in receipt of this entitlement since 2005 when he ceased receiving sickness benefits. In answer to questions posed by Mr Fesel, the applicant said his entitlement to this benefit had been reviewed on one or two occasions, it had not been reviewed recently, but he expected it would be.
The applicant addressed the issue of his lack of employment over the last eighteen months in his statement explaining that he had not seriously looked for work because of the time involved in regular activities, "including clinical and academic activities undertaken with a view to maintaining and improving my medical knowledge". This explanation does not sit comfortably with the eligibility criteria for a Disability Support Pension. We accept that the practitioner has provided greater assistance to his mother since his father's sudden death in April 2014. But his oral evidence disclosed that he no longer spends four nights a week at his mother's home rather he spends two nights at her home and the balance with his partner.
The practitioner's evidence on this topic highlighted to us his single minded focus on regaining his registration as a medical practitioner. We accept that after he obtained his legal qualifications the applicant decided he wanted to live a useful and productive life, and realised that his first love was the practice of medicine. We also accept that he has been diligent in addressing the many high hurdles to re-admission as a result of his unprofessional behaviour, his personality issues stemming from his childhood, and his destructive drug and alcohol addiction. He is to be commended for all the positive steps he has undertaken. But he appeared oblivious to the fact that he should behave in a professional manner and report his changed status to Centrelink, rather than waiting for a review of his pension entitlement. He did not appear to link his assertion before us that he is a fit and proper person to practise medicine with his purported ongoing entitlement to social security entitlements based on a disability.
We also had some concerns about the circumstances in which he was involved as a "go between" of the families of two young persons each of whom committed suicide in relatively recent times. But the evidence elicited in cross-examination on this topic did not give us confidence we could safely make any findings on the topic and we have disregarded this evidence.
We accept that our discussion of the receipt of the disability support pension may seem "pernickety" but we are reminded of the oft quoted statement of Walsh JA in Ex p Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461: '… Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.'
We have weighed this evidence with all the other evidence before us. With the exception of the applicant's treating drug specialist, Dr Thalagala, each of the applicant's treating and/or professional witnesses support his re-instatement to the register with conditions. Dr Diamond, who was retained by the Medical Council, and whose report and evidence critically evaluated all of the expert and other professional evidence, ultimately supported the restoration of the applicant to the register but subject conditions. Overall, we conclude that the applicant has overcome the high hurdle to justify being re-stated but subject to conditions to ensure the safety of the public and his own health and well-being.

[13]

Can practice and health conditions be crafted that can be appropriately monitored to enable the applicant to practise safety and competently?

It is convenient to address these two issues together.
As Dr Phillips notes the applicant has been successful in his rehabilitation from his addiction, but he has not yet commenced his rehabilitation into practice. It is relevant to note that the practitioner has not practised his profession effectively since 1997 albeit he has observed at Dr Dore's clinic and more recently commenced attending grand rounds at Royal Prince Alfred Hospital.
We also note that to date the Royal Australian and New Zealand College of Psychiatrist has, so far as we are aware, had a "zero tolerance" policy in respect of practitioners involved in boundary violations with a patient/s. We do not have the benefit of any evidence about the College's attitude to the practitioner retaining his specialist registration. It is clear from the applicant's evidence before us that he wishes to pursue his career in psychiatry.
We were provided with proposed conditions by the Medical Council. Dr Phillips and Dr Diamond each outlined in their reports practice and health conditions they opined should be imposed by the Tribunal. We were greatly assisted by their recommendations.
The practitioner readily agreed any restoration to the register would be subject to conditions. He did not dispute the majority of the conditions proposed by the Medical Council were appropriate.
The Medical Council proposed that the applicant only practice "in a Medical Council of NSW approved psychiatric registrar position (or equivalent) in a major public teaching hospital". The practicality of this condition and its wording was discussed with Mr Fesel. We determined that to be workable the condition should be amended to require the applicant to work in a public area health service approved by the Medical Council. This requirement will ensure that the practitioner is engaged in employment approved by the Medical Council but may involve employment with a local area health service including community mental health team.
There was discussion after questioning by the panel about any restriction on the hours the applicant should engage in practice so as not to preclude most foreseeable employment opportunities. Dr Diamond originally suggested limiting the applicant's working hours to not more than 30 hours per week, but indicated in his oral evidence it would be sufficient protection for the applicant's own health if the limitation was extended to 35 hours per week.
There was no dispute that the applicant's registration should be subject to both supervision and mentoring conditions. We are satisfied such conditions are absolutely necessary and appropriate particularly bearing in mind the considerable period of time since the practitioner last engaged in practice. We are satisfied that the applicant will be able to secure the assistance of an appropriate mentor.
The issue of restrictions on prescribing rights became the subject of expert evidence. While the Medical Council initially sought to limit the applicant's ability to prescribe both S 8 and S 4D drugs, the Council's position changed at the conclusion of the hearing as noted in a "marked up" copy of draft conditions provided to us. Both Dr Phillips and Dr Diamond agreed that restricting the applicant's ability to prescribe S 4D drugs was unnecessary. Each expert noted that the practitioner had never been addicted to benzodiazepines and that it would be extremely restrictive of his ability to practice if he could not prescribe S 4D drugs. We accept and concur with the evidence of the experts on this topic.
The Medical Council sought a number of conditions, which were listed under the heading "Private (Health) Conditions", be imposed on the applicant's registration. We note that under s 163B (4) the Tribunal's jurisdiction is constrained to making conditions. The Tribunal does not have the power to determine which conditions shall appear on the public register maintained by AHPRA. That is a matter for the National Board under s 226 of the National law.
The applicant did not dispute that the conditions appearing under the heading "Private (Health) Conditions" were generally appropriate. We consider that the period for which the applicant should submit to thrice weekly urine drug screens should be as determined by the Medical Council who have the requisite expertise to determine the appropriate duration and frequency of testing.
We otherwise found the conditions that we have set out in our orders are ones which satisfy, as far as is possible, the protection of the public and will promote the applicant's own health and well-being.

[14]

Costs

The Tribunal has the power to award costs (see Schedule 5D Cl 13 of the National Law). The authorities that consider the principles to be applied by the Tribunal are well-established and consistent. Those principles are succinctly summarised in the NSW Court of Appeal in HCCC v Qasim [2015] NSWCA 282 as follows at [84] -[85]: Clause 13 in Sch 5D of the applicable National Law relevantly provided: A Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".)
The applicant opposed us making any order for costs and sought that each party should pay their own costs of and incidental to the proceedings.
Mr Fesel referred us to the findings of the Tribunal in Ameisen v Medical Council of NSW [2015] NSWCATOD 48 at [87] to [96]. It is unnecessary that we repeat all that was said by that Tribunal except to refer to the discussion at [90]. There the Tribunal pointed out the re-instatement application had, at its foundation, the past prior conduct of the applicant, and noted proceedings of the present type may be seen as "ancillary". The Tribunal explained that although, having obtained a re-instatement order the applicant may be considered to have been "successful", "that misunderstands the nature of the respondent's involvement in the inquiry". The Tribunal went on to quote earlier decisions which explained the role of the Medical Board to test the evidence to ensure applicant is a fit and proper person to be registered.
The applicant's submissions on costs relied on the decision of the Tribunal in Roberts v Medical Council of NSW [2015] NSWCATOD 35. This matter is distinguishable from Roberts. In Roberts the Tribunal noted that the Medical Council did not oppose the application, and if a consent procedure had been available it would have consented to the applicant's re-registration. Here, the Medical Council neither supported nor opposed the application, but did seek to test the evidence of the applicant both as to historical matters and current occurrences. Significantly, the Medical Council retained Dr Diamond to provide a comprehensive report, which was supplemented by his oral evidence to test the applicant's evidence. Dr Diamond's report and evidence provided a careful assessment of all of the evidence, including the expert evidence relied on by the applicant. Dr Diamond's evidence was before us only because of the Medical Council's involvement.
In this case we adopt the reasoning of the Tribunal in Ameisen and the authorities referred to in that decision. Accordingly, we are satisfied it is appropriate that the applicant should pay the Medical Council's costs as agreed and failing agreement as assessed.
Although the applicant presented no evidence about his assets and liabilities, we accept, based on a lack of income, he has qualified for social security benefits, and has incurred significant costs associated with urine drug screens. In these circumstances, we recommend that the Medical Council consider, if requested and appropriate to do so after provision of information concerning the applicant's assets and liabilities, that payment of agreed or assessed costs be by instalments.

[21]

Health Conditions: 1. the practitioner shall not: 1. prescribe for self-medication; 2. subject to (b) self-administer: A. any Schedule 8 drug B. any narcotic derivative, non-prescription compound analgesic or cold medication. 1. the practitioner is only take the medications referred to in (a) (ii) A and B if they are prescribed and taken at the direction of his treating practitioner. 2. In the event the practitioner is prescribed or directed to take a: 1. Schedule 8 drug; 2. a narcotic derivative; or 3. a non-prescription compound analgesic or cold medication he must within 7 days of such prescribing notify in writing his Council appointed psychiatrist and the Council of the prescription. 1. The practitioner shall from the date of the Decision attend at his own expense for thrice weekly Urine Drug Testing in strict accordance with the Council's protocol from time to time for such period as shall be determined by the Council. 2. On recommencement of practice the practitioner shall for a period of 12 months from the date of the Decision and thereafter as directed by the Council attend at his own expense for review on a three monthly basis by a Council appointed psychiatrist. 3. The practitioner shall: 1. attend for treatment by a general practitioner of his choice at a frequency determined by the practitioner and his general practitioner; 2. authorise the general practitioner to inform the Council of any failure to attend for treatment, termination of treatment or if there is a significant change in the practitioner's health status (including a significant temporary change). 1. The practitioner shall: 1. attend for treatment by a psychiatrist of his choice at a frequency to be determined by the treating psychiatrist; 2. authorise the treating psychiatrist to inform the Council of any failure to attend for treatment, termination of treatment or if there is a significant change in the practitioner's health status (including a significant temporary change); 1. The practitioner shall continue to take any medication prescribed by his treating practitioners. 2. The practitioner shall in determining the extent of his professional medical duties be guided by his health status and the advice of his treating and Council appointed practitioners. 3. The practitioner shall authorise the Council to forward copies of the Decision and any subsequent Council Review Interview or other reports and any other information relative to his health to any Council appointed practitioners and to his treating practitioners. 3. Any review of the conditions imposed on the practitioner's registration shall be conducted by the Council which shall be the appropriate review body for the purposes of Part 8 Div 8 of the Health Practitioner Regulation National Law (the National Law). 4. In the event that the practitioner's place of residence is anywhere in Australia other than NSW s 125 to s 127 of the National Law shall apply and a review of the conditions can be conducted by the Medical Board of Australia. 5.The applicant shall pay the Council's costs of and incidental to the proceedings as agreed and failing agreement within 28 days of the date of this order as assessed under Div 3 of Part 7 of the Legal Profession Uniform Law Application Act 2014 (NSW).

Smithson v Medical Council of New South Wales

At a glance

Court

Decision date

Before

Source

Judgment (22 paragraphs)

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Legislation Cited (5)

Cases Cited (16)

Cited By (4)