Smithson v Medical Council of New South Wales

The Council's Decision

1. In its report, the Council set out the submissions made to it by Dr Smithson in some detail.
2. Dr Smithson told the Council about his arrangements to be mentored and counselled. He outlined his arrangement to see his psychiatrist every three months, and said that he had been having psychotherapy fortnightly since December 2019.
3. In its report, the Council said: When asked as to how he might explain the positive tests, Dr Smithson believed them to be false positives but was unsure of how they came to be. He mentioned that the results may be caused by food, by contact with his hairdresser, or by his friend Judy (both of whom are heroin users). Dr Smithson attested to having changed his diet and informed his friends and colleagues about concern re touching him to minimise the risks of contamination. However, Dr Smithson rejected any suggestion that he minimise his contact with his friends, especially Judy, given the support they showed to him during hard times. When asked if he may have accidentally taken medication, Dr Smithson said that he is very careful about such matters.
4. Before the Council, Dr Smithson relied upon the report of Professor Haber, a consultant gastroenterologist and addiction specialist. Professor Haber had two telephone consultations with Dr Smithson, but had never seen him in person on account of the pandemic. Professor Haber related his impression of Dr Smithson and criticised the hair sample test result report of 7 April 2020, referred to in [25] above. Professor Haber said that the hair sample test result report should have said that the international society for hair testing: …has provided a cut off for reliable detection of drugs in hair of 200pg/mg and these standards are widely quoted and accepted. The reported result of 128 is well below this cut-off. The cut-off level of 200 pg/mg protein is already incredibly sensitive, remembering that one pg (10ˉ¹² gram) is one millionth part of one microgram.
5. Professor Haber did not consider that a hair test result below the threshold he set out should be reported upon. He also criticised the report for omitting to mention the relationship of the two detected metabolites to each other, noting that the ratio of 6-MAM to morphine in the hair of confirmed heroin users was approximately 3:1 in two studies, and that the ratio in this case was far greater. He suggested that the hair result did not validly confirm the use of heroin and believed it 'suggests contamination or laboratory error of some kind'.
6. Professor Haber thought that the UDT results of 30 March 2020 and 6 April 2020 were 'also equivocal'. Professor Haber said: Two low range positive results were reported on 30 March and 6 April 2020. However, these two positive results are interspersed between multiple negative results. These tests are being done to detect use of heroin or other non-prescribed opiates. If Dr Smithson had used one of these drugs shortly before these tests were done, one would expect positive results to have continued for several days. The presence of negative results on 25/3, 27/3, 1/4. 3/4 and 8/4 as well as many times before and after these two isolated results strongly suggests these were not true positive results that indicate drug use. The usual levels of morphine found in the urine after heroin use are higher, and if the results are to be believed, he has used heroin twice, given multiple negative results between. However, significant heroin use is associated with levels that are far higher and last for several days. … The findings suggest either trace contamination from diet or laboratory error. Laboratory errors in drug testing laboratories are well recognised. The laboratory at my hospital went through a period where a number of urine drug results were in error that led to an internal enquiry and some change in procedures so I have no doubt that laboratory errors do occur…. I can understand that these apparently positive drug test results are of concern to a committee charged with protecting community safety. However, in my opinion, close scrutiny of these results shows that they are not indicative of drug use by Dr Smithson.
7. The Council took into account a report dated 3 June 2020 of Emeritus Professor Drummer AO, a forensic pharmacologist and toxicology consulting specialist. Professor Drummer said: 6.1. Low amounts of morphine were detected in 2 urine specimens (30 March and 6 April) one week apart. Two specimens taken between these two (April 1 and April 3) were negative to morphine. No 6-acetyl morphine was detected in any urine specimen 6.2. When heroin or morphine is used in pharmacological relevant doses excretion of morphine will occur over the best part of about 2 days, and even longer if higher doses have been used. 6.3. This would mean that the morphine could have derived from a source of food, some form of inadvertent contamination or from small amounts of morphine or heroin. 6.4. Low concentrations of morphine in urine can be caused by absorption of low (pharmacologically insignificant) amounts of morphine from some food, or from past use of codeine, or from some form of inadvertent exposure. When codeine has been used it may not be present in urine on the second day of excretion, although small amounts of morphine are often present, since codeine is preferentially excreted. However, Dr Smithson denies ever using codeine. 6.5. Foods containing small amounts of morphine are not uncommon, and relate primarily to those containing poppy seeds or poppy seed extracts. These foods include some bread rolls, many bakery items and even some curries. Short term excretion of low amounts of morphine when these foods have been consumed, but above the reporting cut-off, are well known. 6.6. The hair specimen represented about 3-months of growth, assuming hair grew at 1 cm per month, a usually assumed average growth rate. Assuming this is a real positive, this could mean that any drugs entered into (or onto) the hair any time over these 3 months, or even some months earlier if drug had been absorbed in Dr Smithson's tissues. 6.7. In hair to confirm heroin use then both 6-acetylmorphine and morphine need to be present in hair above the cut-off of 200 pg/mg. The 132 pg/mg is below this cut-off established by the Society for Hair Testing and ordinarily should not have been reported. 6.8. Morphine is usually detected in heroin users and is often the major form detected following use of heroin. Morphine was not detected in the hair, suggesting that the 6-acetylmorphine may have come from some form of inadvertent exposure at some point prior to collection. 6.9. The hair contained evidence of regular use of buprenorphine, a drug that is prescribed to Dr Smithson. Since buprenorphine acts on the opioid receptor it will diminish the effects of any dose of heroin (or any other opiate), requiring higher doses than usual to achieve the desired pharmacological effect from the heroin. 6.10. Hair testing should not by itself be used as evidence of illicit drug use since there is a significant potential for a positive result to derive from inadvertent exposure and/or environmental contamination. It is not advisable to report below recognised cut-offs since a positive report may unfairly suggest drug use. 6.11. Washing techniques may remove surface contamination, but usually does not remove drug that has absorbed into the hair structures. It is also possible that the process of washing hair to remove surface contamination may allow drug to penetrate into the hair structures and give the impression of personal use. Analysis of washes can sometimes provide evidence of surface contamination, but also when concentrations in hair are low, the concentration of any drugs in the washes may be too low to detect by the analytical methods used. 6.12. In conclusion, the urine test results provide some evidence for the exposure to possibly two small amounts of a morphine-source a week apart, but given the low amounts in urine and the absence of 6-acetylmorphine this does not provide sufficient evidence of personal drug use. The hair test results showed the absence of morphine but the presence of 6-acetylmorphine, although this was a low concentration below what would ordinarily be reported (below the cut-off recommended by the Society of Hair Testing). 6.13. Given Dr Smithson's continual denial of drug use and the wo [sic] inconsistent low test results it is entirely possibly that results could have occurred from another source (to personal use) that could include food or some form of external contamination. 6.14. The interpretation of these results has not involved a review of any of the analytical tests performed, or the quality control procedures in place to ensure a reliable result was obtained.
8. The Council took into account a letter dated 9 July 2020 and oral evidence of Dr Wodak, a former physician and the director of the Alcohol and Drug Service at St Vincent's Hospital. Dr Wodak saw Dr Smithson periodically from 1998 to 2005, and then more regularly until the present day.
9. It was Dr Wodak's view that none of the test results 'were a clear and unequivocal positive result'. In oral submissions to the Council delegates, Dr Wodak stated his belief that Dr Smithson has maintained his abstinence from drugs. Dr Wodak thought that the results were the result of some sort of contamination, rather than being a sign of drug use.
10. The Council, in its report, set out in Attachment 2 to its report the full list of the documents it considered, and I take those into account to the extent that they are relevant to the question of whether the suspension of Dr Smithson's registration should be stayed.
11. The Council set out the argument advanced on behalf of Dr Smithson, relying on the decision in Knowles v Medical Council of New South Wales [2019] NSWCATOD 46 at [51], to the effect that a suspicion alone is insufficient to warrant the suspension of a practitioner's registration. The Council did not consider that the comments in that matter were applicable to the facts in Dr Smithson's case. The Council said that the positive hair and urine tests are not a suspicion, and nor is Dr Smithson's history of drug addiction. The Council said that there are objective grounds upon which to consider the exercise of its power under s 150 of the National Law.
12. The Council referred to Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123], which sets out the factors to be considered by a Council when considering the exercise of power under s 150 of the National Law, noting that it had been affirmed in Ghosh v Medical Council of New South Wales [2020] NSWCA 122 at [9]. The Council considered all of the topics identified in Karimi.
13. In relation to the protection of the health or safety of any person or persons, the Council noted that it was not its task to decide whether Dr Smithson had or had not taken illicit drugs. The Council said that, whilst there was conflicting evidence as to whether Dr Smithson was taking drugs, it noted that there were two positive urine tests above the threshold of the Australian Standard which are in breach of the Council's drug testing policy. The Council said that, putting the hair sample test to one side, the positive urine tests are enough to create sufficient apprehension of risk to justify the suspension of Dr Smithson under s 150 of the National Law.
14. In relation to the public interest, the Council referred to Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56], where the Tribunal said that the public interest includes the need for patients to have confidence in the competence of medical practitioners, and that: 'Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit those traits.
15. The Council concluded: We are of the opinion that it is necessary to exercise power to suspend Dr Smithson in the public interest on the basis of the positive hair and urine test results. We find that the public's confidence in medical practitioners would be damaged if they knew that a medical practitioner who had a history of drug addiction and who tested positive to drugs was allowed to continue to practice while those results were being investigated. Nor do we think that Dr Smithson's positive drug tests demonstrate traits consistent with the honourable practice of an honourable profession. Dr Smithson already has numerous conditions on his practice. Given that he has returned positive drug tests while those conditions were in place, we find that the only sufficient condition to protect the public safety and public interest is to order suspension.

Principles and statutory provisions relevant to a stay

1. The National Law provides, in s 165L(2): The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of.
2. The National Law does not give the Tribunal power to stay a decision of the Council appealed against only under s 159 of the National Law.
3. The factors to be taken into account in relation to an application for a stay in this context are summarised in Taylor v Medical Board of Australia [2018] NSWCATOD 50 at [10]-[11]. They include:

• s 3A of the National Law, which provides, as the objective and guiding principle of the National Law: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
• the onus is upon the applicant for a stay to establish a basis for the granting a stay, although it is not necessary for the applicant to demonstrate any 'special' or 'exceptional' circumstances,
• the bona fides of the applicant,
• the balance of convenience and the competing rights and interests of the parties,
• the weighing of the risk that an appeal may be rendered nugatory if a stay is not granted,
• an assessment of the strength of the proposed appeal, and whether the appellant has an arguable case in his appeal under s 159B of the National Law,
• the period of time within which the appeal may be heard,
• the protection of the public.

Dr Smithson's submissions

1. I take into account the information in Dr Smithson's affidavit sworn on 24 July 2020, including the information as to his monthly expenses. Clearly, Dr Smithson's suspension means that he cannot earn an income from the practice of medicine.
2. I was provided with correspondence which showed that Dr Smithson had been offered a non-clinical role at the Northern Sydney Local Health District for the duration of his suspension. However, the Council declined to approve Dr Smithson taking up that role on the basis that the role would require him to use his skills and knowledge as a practitioner in a role which would impact on the safe, effective delivery of health services in the health profession, and thus constituted the practise of medicine.
3. It was pointed out in Dr Smithson's argument that the two positive urine tests in March and April 2020 occurred in the context of more than 900 urine tests taken him since 19 August 2013.
4. Dr Smithson has consistently asserted that he has not used illicit drugs since 2013.
5. Dr Smithson relied upon the reports of Professor Haber and Professor Drummer, quoted above. It was argued that the opinions in those reports were unchallenged by any opposing evidence in the Council hearing.
6. Dr Smithson relied upon work references and expressions of support from colleagues provided to the Council, and I take those into account.
7. It was argued that Dr Smithson has a list of patients who are presently deprived of their treating practitioner, and that the North Shore Ryde Mental Health Service is presently deprived of a valuable member of its team.
8. In X v Medical Board (1993) 32 ALD 330, Levine J described the power to suspend a medical practitioner as 'draconian'. It was argued on behalf of Dr Smithson that this 'draconian' power should not have been exercised by the Council when it was in possession of the reports of Professor Haber and Professor Drummer which, it was said, provided expert evidence that the positive tests were not probative of personal use.
9. It was argued for Dr Smithson that the suspension would cause damage to his career and would also cause stress which could potentially compromise the effectiveness of his appeal.

The Council's submissions

1. The Council submitted that the Tribunal should consider the positive results in March and April 2020 in the context of Dr Smithson's drug history and his prior involvement with the Council and the Tribunal, including the conditions imposed on his registration, which were applicable at the time of the positive results.
2. The Council drew my attention to its drug screening policy, which was provided, which states, among other things:

• 'Negative drug screening results are an effective way for the Council to protect the public, by knowing that a participant is not affected by substances and can continue safely to practice or training'.
• Non-compliance with drug screening is characterised at paragraph 4.2 as including 'a positive result for a substance where there is no written confirmation from a treating practitioner that they advised, prescribed or administered that substance.
• Do not eat food that contains poppy seeds. You cannot use poppy seed consumption to explain a positive screening result.
• A urine drug screening result is positive if both of the following apply:
• it shows your sample contains a substance listed in Appendix A
• a treating practitioner has not confirmed they advised, prescribed or administered that substance

1. The Council drew my attention to the qualifications of the delegates who made the decision on behalf of the Council, who were a general practitioner, a psychiatrist working in drug and alcohol addiction, and a professor of law.
2. The Council pointed to Dr Smithson's written response for the s 150 hearing, in which he said that possible explanations for the positive results included external contamination of the sample, laboratory error, cross-reactivity and dietary contamination with opiate containing foodstuffs. He said that he had no direct evidence as to which of these possibilities explained the positive results.
3. It was pointed out that Dr Smithson acknowledged in his written response to the Council that his hair drug test on 30 March 2020 was the fifth consecutive hair sample to return a non-negative result, and that the hair drug test of 30 March 2020 returned the highest level of 6-MAM of the five samples.
4. The Council highlighted parts of the transcript of the s 150 hearing. It was pointed out during the hearing before the Council that both of the positive UDTs were taken on a Monday. Morphine can be detected in urine for up to three days after it is taken. Dr Smithson had a negative UDT on Friday 27 March 2020, a positive test on Monday 30 March 2020 and a negative test on Wednesday 1 April 2020 and Friday 3 April 2020. He then had the higher positive test on Monday 6 April 2020 and a negative test on Wednesday 8 April 2020.
5. Dr Smithson, at the s 150 hearing, conceded that it would be possible to take morphine on a Friday, have a positive result in a UDT taken on the following Monday, and have a negative test on the Wednesday two days later. However, Dr Smithson pointed out that he is on Buprenorphine, so that, in his opinion, the taking of a dose, in those circumstances, which would return results of the order returned on even 6 April 2020, would not give any opiate effect to the taker and would therefore be 'useless'.
6. At the s 150 hearing, Dr Smithson discussed his custom of spending two nights per week at the home of a friend who uses heroin. He also discussed the fact that his hairdresser is a heroin user, implying that he may have innocently absorbed a substance by contact with one of those two people.
7. The Council submitted that the delegates were entitled to rely upon the positive urine tests of 30 March 2020 and 6 April 2020, following the Councils drug screening policy, as objective evidence of a breach by Dr Smithson of a condition of his registration and of a breach of the Council's drug screening policy. In the risk assessment it was required to undertake under s 150 of the National Law, in the exercise of its protective jurisdiction, it was appropriate for the Council to weigh that evidence against the opinions of Professor Drummer and Professor Haber and to form the view that suspension was appropriate.
8. It was pointed out on behalf of the Council that Dr Smithson had been diagnosed by Dr O'Connell with Substance Use Disorder (DSM 5) in February 2018 and that the diagnosis was repeated in October 2019, with the comment that although Dr Smithson's recovery was impressive, he was still somewhat vulnerable.
9. The Council argued that, in the context of Dr Smithson's history, its task was not to decide whether or not Dr Smithson had taken drugs, but, rather, to decide whether there is sufficient evidence to justify an order to protect the health and safety of the public. The two positive UDTs, above the Australian standard, were enough to create a risk sufficient to justify Dr Smithson's suspension.
10. In addition, it was argued, on behalf of the Council, that the public confidence in medical practitioners would be damaged if they knew that a medical practitioner with a history of drug addiction, who had tested positive for drugs, was permitted to practice whilst the matter was being investigated.

Consideration

1. I remind myself that it is not my role in deciding this application for a stay to pre-empt the decision to be made in relation to the substantive appeals under s 159 and s 159B of the National Law.
2. In considering the factors listed at [44] above, and, in particular, the balance of convenience and the competing interests of the parties, I bear in mind the very significant effect that suspension is bound to have on Dr Smithson, particularly financially.
3. I do not believe that suspension will render the appeal nugatory, but I acknowledge that it will have an impact upon Dr Smithson's professional reputation, and upon him personally. However, those factors are to be weighed against the public interest and the public risk. The Council has correctly described and assessed those considerations in its reasons, summarised at [39]-[41] above. I consider that the public interest and the public risk outweigh the impact of the suspension on Dr Smithson in all of the circumstances of this matter.
4. In assessing the strength of the appeal under s 159B of the National Law, I note that the sole ground of appeal is that 'the decision is so unreasonable and plainly unjust that it is wrong at law'. This ground of appeal was discussed in BHL19 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [129]-[138], and was discussed in the context of a stay application in relation to the suspension of a medical practitioner's registration in this Tribunal in Sutherland v Medical Council of NSW [2020] NSWCATOD 97, where Judge Hennessy said, at [30]-[31]: … In formulating the legal unreasonableness ground of appeal, Dr Sutherland did not identify a specific jurisdictional error. Rather, he focussed on what Bromwich J called an "outcome focussed" conclusion. As I understand it, his appeal on a point of law is on the ground that the decision to suspend his registration is outside the range of lawful outcomes. As Bromwich J stated at [134], there is an area of "decisional freedom" where "reasonable minds might differ as to the correct decision or outcome". It is only if the outcome falls outside the area of decisional freedom that it can be said to be legally unreasonable. Bromwich J went on to state that "in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the provisions of the statute which confer the relevant power". In this case, that provision is s 150 of the National Law.
5. I acknowledge that the appeal was filed before the Council's reasons became available. However, those reasons were signed on 13 August 2020 and were available within sufficient time for an amendment to have been made to the grounds of appeal. The sole ground for the appeal under s 159B of the National Law depends upon the Tribunal ultimately deciding that the decision of the Council was outside the range of outcomes lawfully open to the Council under s 150 of the National Law, in circumstances where Dr Smithson received two positive UDTs when assessed against the applicable Australian standard. Dr Smithson has an arguable case on his appeal under s 159B of the National Law, but not a strong case.
6. No impediment has been put forward by either party to the early listing of the substantive appeal.
7. Dr Smithson has not established a basis for the making of a stay order with respect to the suspension of his registration by the Council.

Order

1. There will be an order in the following terms: 1. Dr Smithson's application for a stay of the suspension of his registration as a medical practitioner by the Medical Council on 14 July 2020 at 5pm is refused. 2. The question of the costs of this application is to be dealt with after the final determination of the substantive appeal under s 159B of the Health Practitioners Regulation National Law.

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: 18 September 2020