Smithson v Medical Council of NSW

Dr Smithson's background

1. Dr Smithson obtained the qualification of MBBS in 1987 from the University of Newcastle and attained a Fellowship of the Royal Australian and New Zealand College of Psychiatry in 1994.
2. In October 1995 Dr Smithson's wife died suddenly and unexpectedly. Dr Smithson became depressed and reported his condition to the regulatory authorities.
3. Shortly afterward Dr Smithson engaged in a serious boundary violation with a young female patient. The relationship continued over a prolonged period, during which time Dr Smithson used heroin with the patient. She later died of a heroin overdose.
4. In about December 1997 Dr Smithson was admitted to Westmead Hospital and did not return to work. He voluntarily removed himself from the medical Register.
5. In 1998 the then Medical Board received a complaint made by the family of the female patient. On 29 June 2000 the Medical Tribunal made an order cancelling Dr Smithson's registration. He was precluded from reapplying for registration for three years.
6. Dr Smithson remained in active addiction to heroin for around 20 years up to 2013 and also used cocaine at times. He said that, over those years, his life had been destroyed by heroin. At times he had been homeless, sleeping in clothing bins and parks with his dog.
7. Since at least 2013, Dr Smithson has been prescribed buprenorphine which is a prescription medication. It is taken as a replacement in the treatment of heroin dependence.
8. In April 2016 Dr Smithson was successful in his application for re-registration. Conditions were placed on his registration. Those conditions included, as we have already mentioned, that he not use any narcotic derivative, non-prescription compound analgesic or cold medication and that he undergo thrice weekly urine drug screening.
9. In June 2017, Dr Smithson commenced work as a relief Registrar in Psychiatry at Royal North Shore Hospital, where he remained working until the time of the s 150 hearing on 2020 when his registration was suspended.
10. Urine drug screens were positive for morphine (at trace levels) on 11 December 2017 and 24 January 2018. On 14 June 2018, Dr Smithson attended an Impaired Registrants Panel Inquiry. Dr Smithson told the Panel that he had last used heroin in July 2013 and postulated that, as he ate out quite frequently, the two positive results may have been the result of an inadvertent ingestion of poppy seeds.
11. The Panel recommended that additional conditions be imposed on Dr Smithson's registration including attending an addiction specialist and quarterly hair drug testing.
12. Following a further positive drug screening test on 2 August 2018, on 26 September 2018 the Council convened proceedings under s 150. While undertaking their deliberations the delegates were made aware that Dr Smithson had made an application under s 163A of the National Law to review his registration conditions with respect to drug testing. The proceedings under s 150 were discontinued. The amended condition requiring Dr Smithson to undertake quarterly hair drug testing in addition to thrice weekly urine testing was imposed under s 163B(1)(d) of the National Law.
13. A urine drug test sample on 14 January 2019 returned positive for amphetamines, which was confirmed by a repeat test.
14. A hair sample provided on 22 February 2019 returned a finding of a low concentration for 6-monoacetylmorphine (6-MAM) which was below the laboratory's cut off point for reporting as a positive finding. 6-MAM is the initial metabolite of heroin. It is present in blood and urine for a relatively short time before it is further metabolised to morphine.
15. On 28 March 2019 s 150 proceedings were convened. Dr Smithson denied that he had used any illicit drugs.
16. In relation to the finding of amphetamine, Dr Smithson said this was not one of the drugs to which he had been addicted in the past. While his partner took dexamphetamine for narcolepsy, he did not even know where she kept it and it would have been impossible for them to mix up their medication.
17. With respect to the positive test in the hair sample, Dr Smithson said he was shocked and alarmed. He thought it might have occurred because he associated with people who used heroin and he may have inadvertently been exposed through touching them, shaking hands with them and embracing them. He also suggested that, as those friends divided up the heroin on spoons on the kitchen counter, it was possible he had inadvertently ingested some by using the spoon in his tea.
18. The delegates noted that there were times when Dr Smithson was not urine tested which overlapped with the period covered by the hair testing. For instance, he missed a urine test (with notification to the Council) on 5 December 2018 so he was not tested from 4 to 6 December (3 days) and he missed urine tests (with notification to the Council) on 21 and 24 of December 2018 meaning there was a gap of around 7 days over Christmas (from 20 - 26 December 2018) when he was not having his urine tested. These windows overlapped with the three month period covered by the hair testing which was done on 22 February 2019. Dr Smithson denied having used drugs.
19. Dr Smithson told the delegates that the earlier positive urine drug tests in January and August 2018 had possibly been caused by the ingestion of poppy seeds which he now assiduously avoided.
20. The delegates concluded that it was possible that Dr Smithson had used heroin and it was also possible that he had been inadvertently contaminated. They were not convinced that he did not use heroin. They concluded he did pose a risk to the safety or health of the public.
21. The delegates decided that the best way to protect the public was to ensure that Dr Smithson obtained help from an addiction specialist. A condition to that effect was placed on his registration.
22. Hair screen test results were received by the Council from 23 May 2019 and 9 September 2019. This meant that all three hair tests which had been performed since the condition to undergo hair testing had been imposed, had been reported positive for a heroin metabolite.
23. On 30 September 2019 s 150 proceedings were again convened. The delegates considered the three positive hair test results.
24. Dr Smithson denied that he had used illicit drugs. He suggested that the source of this contamination could have been a friend he stayed with twice a week who used heroin although he had not witnessed her doing so. He had seen drug using paraphernalia (such as teaspoons, syringes and a blue tourniquet) in the kitchen.
25. After taking into account the evidence which was supportive of the doctor, the delegates concluded that the positive test results suggested that Dr Smithson had not fully accepted the role of the medical regulator in protecting the health and safety of the public by not coming into contact with illicit substances either by cross-contamination or intentional use. He had been afforded substantial time throughout 2019 to address the concerns and had not done so. There was a public interest in a recovering at-risk practitioner taking a conservative approach to his or her continued progress including not associating with people in active heroin addiction and following advice from treating practitioners, even when it does not accord with their own views on recovery. The public would also expect Dr Smithson to follow the traditions and guidelines of Narcotics Anonymous and Doctors in Recovery (both of which Dr Smithson attended) especially when he was acting as a sponsor to another addict.
26. The delegates concluded that, over an extended period, monitoring conditions had not been adequate to minimise the risk to the public. Accordingly they placed a condition on his registration not to practise medicine.
27. Dr Smithson appealed the s 150 decision but on 11 February 2020 the Council removed the "not to practise" condition and reimposed the previous conditions.
28. All of Dr Smithson's drug testing results up to 30 March 2020 had been for trace levels below the relevant thresholds, other than for amphetamine.
29. The results on and after 30 March 2020 led to the convening of another s 150 hearing on 14 July 2020. Those results were: 1. a urine drug test result for morphine of 362 μg/L on 30 March 2020. 2. a urine drug test result for morphine of 738 μg/L on 6 April 2020. 3. a urine drug test for morphine of 425 μg/L and a trace amount of codeine of 59 μg/L on 8 July 2020. 4. A hair test result for 6-MAM of 132 pg/mg on 7 April 2020.
30. The decision of those delegates on 14 July 2020 to suspend Dr Smithson's registration has led to this hearing.
31. The Medical Council says that Dr Smithson has also breached the conditions on his registration imposed by the Court of Appeal on 8 April 2021 as: 1. he used medication containing codeine in late April 2021; and 2. a hair test result on 21 May 2021 was positive for 6-MAM, morphine and codeine; and 3. he failed to practise under Category B supervision from 15 to 24 June 2021; and 4. he missed a urine drug screen on 15 June 2021.

What is our role?

1. Section 150 of the National Law relevantly provides: (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
2. As we have said, on 14 July 2020 the Council, pursuant to s 150, decided to suspend Dr Smithson's registration.
3. That determination under s150 has been, on an interim basis, replaced by the Orders made by the Court of Appeal permitting Dr Smithson to practise subject to conditions.
4. The appeal from the decision under s 150 is made pursuant to s 159 of the National Law (NSW). That section relevantly says: (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; (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.
5. Section 159C(1) of the National Law provides that the Tribunal may: (a) confirm the decision; or (b) set aside the decision; or (c) set aside the decision and make a new decision (being a decision that the Council could have made).
6. The relevant principles are set out in Medical Council of New South Wales v Smithson [2021] NSWCA 53 at [20]. In summary: 1. Our role is to apply s 150 standing in the shoes of the Council. The hearing is de novo and not limited to the evidence which was before the Council. 2. Section 150 is a protective provision with two independent limbs. To make an order we must be satisfied: 1. that it is appropriate to do so for the protection of the health or safety of any person or persons (the first limb), or 2. that the action is otherwise in the public interest (the second limb). The two limbs may overlap but are disjunctive - satisfaction of one or the other is sufficient suffice to trigger the obligation imposed by s 150. 1. The proceedings are not disciplinary and are not necessarily referable to a complaint. The National Law deals with complaints elsewhere. The function of a s 150 hearing is purely protective in character. 2. Principles relating to judicial review of administrative decisions such as whether the delegates took into account irrelevant considerations are inappropriate to the exercise required by s 159. 3. There may be a continuing dispute as to the relevant facts. Investigations by bodies such as the HCCC may not have been completed or even commenced. However, we are not required to make conclusive findings of fact based on the material before us. This s 159 hearing does not involve determination of the merits of a claim. 4. Our role is to make an assessment of the evidence and determine whether we are satisfied that it is appropriate to make one of the orders permitted by s 150(1). This Inquiry is not the occasion to consider, let alone determine, whether a practitioner is currently a fit and proper person to carry on the role. 5. The "protection of the health and safety of any person or persons" does not require there to be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. Our role is to make an assessment of the evidence and determine whether it is appropriate, on either of the bases for which s 150 provides, that an order be made under s 150 for the protection of the health or safety of any person or persons or otherwise in the public interest. 6. As s 150 is a protective provision, it is usually appropriate for us, when deciding whether to make an order under the first or second limb, to assess the nature and degree of risk to the health or safety of any person or persons or to the public interest (in the sense of the chance of the suggested harm being realised) and the consequences of the suggested harm being realised (in the sense of the seriousness of the harm that will ensue if the risk is realised). Reaching that state of satisfaction involves us making an assessment of all of the evidence. 7. The essential question which we must address, is whether allowing Dr Smithson to practise, or to practise with certain conditions, involves an unacceptable risk to the health and safety of the public, or otherwise involves an unacceptable risk to the public interest.
7. The "public interest" consideration (the second limb) will always also include the need for patients and others to have confidence firstly in the competence of doctors and secondly that doctors will exhibit traits consistent with the honourable practice of an honourable profession (Ghosh v Medical Council of New South Wales [2020] NSWCA 122 at [9]).
8. One of the guiding principles of the national registration scheme is that restrictions on the practice of a doctor are to be imposed only if it is necessary to ensure health services are provided safely (s 3 of the National Law).
9. In the exercise of functions, the protection of the health and safety of the public must be the paramount consideration (s 3A of the National Law).

Hair and urine testing

1. There is extensive evidence from a number of experts with different qualifications as to the proper interpretation of the urine and hair test results in determining the likelihood as to whether Dr Smithson has been using heroin. Of course, it is not appropriate or necessary for us to determine that issue. However a consideration of the issue is relevant to determining the nature and degree of the risk to the health or safety of any person or whether action would be in the public interest.

The evidence of Dr Smithson

1. Dr Smithson has consistently denied any illicit drug use since 2013.
2. In relation to the urine results, he has said on many occasions that he suspected he had been accidentally ingesting poppy seeds.
3. In relation to the test results consistent with exposure to heroin, Dr Smithson suspects the source could be his friend with whom he spends two nights a week. She is a heroin user who lives in community housing with "all sorts of people" and he thinks he may have been exposed to heroin in her flat or from the banister or the entry doorway.
4. Dr Smithson previously suggested that he may have been exposed to heroin because he attended a hairdresser who he thought probably used illicit drugs. However he has not gone to that hairdresser for some time.

The drug tests

1. This is a summary of the drug tests which were not negative.
2. It is standard practice to apply lower limits of reporting for positive findings. These are called cut-offs.
3. The cut off for morphine in urine testing is 300 ug/L in the relevant Australian Standard.
4. The cut off for 6-MAM in hair testing is 200 pg/mg according to the Society of Hair Testing.
5. The cut off for amphetamine is 150ug/L. DATE TYPE RESULT 11.12.2017 Urine morphine trace 24.1.2018 Urine morphine trace 2.8.18 Urine morphine trace 14.1.19 Urine 259μg/L amphetamine (cut off 150ug/L) 22.2.19 Hair 51pg/mg 6-MAM (cut off 200pg/mg) 23.5.19 Hair 71pg/mg 6-MAM (cut off 200pg/mg) 9.9.19 Hair 79pg/mg 6-MAM (cut off 200pg/mg) 18.12.19 Hair 51pg/mg 6-MAM (cut off 200pg/mg) 30.3.20 Hair 132pg/mg 6-MAM (cut off 200pg/mg) 30.3.20 Urine 362μg/L morphine (cut off 300μg/L) 6.4.20 Urine 738μg/L morphine (cut off 300μg/L) 6.7.20 Hair 118pg/mg 6-MAM (cut off 200pg/mg) 8.7.20 Urine 425μg/L morphine (cut off 300μg/L) Trace amount of codeine of 59μg/L 220pg/mg 6-MAM (cut off 200pg/mg) 21.5.21 Hair 210pg/mg morphine 88pg/mg codeine

1. At the last Tribunal hearing four experts gave evidence concurrently. Prof Drummer, is a forensic pharmacologist and toxicologist retained by the solicitor acting for Dr Smithson. Prof Haber is a consultant physician in the fields of addiction medicine, and clinical toxicology. He reviews Dr Smithson pursuant to the conditions on Dr Smithson's registration. Dr Robertson is a pharmacologist and forensic toxicologist who was retained by the Medical Council. Dr Appleton, is a pathologist, and the Director of Biochemistry at the Queensland Medical Laboratory. He was retained by the Medical Council.
2. They agreed: 1. The urine drug test results for 30 March 2020, 6 April 2020, and 8 July 2020 were all positive for the presence of morphine at the low end of the positive range. 2. The possible causes for the presence of the low level of morphine are heroin use a number of days earlier, use of a pharmaceutical based codeine product, or dietary ingestion of an opiate such as poppy seeds. 3. Dr Smithson's ongoing use of buprenorphine meant he would need to use more heroin to get its desirable effects. That would likely result in higher levels of morphine and 6-MAM. This meant that poppy seed ingestion or an alternate cause would be a more likely explanation for the urine drug test results. Heroin use could not be excluded. 4. The hair test results on 22 February 2019, 23 May 2019, 3 July 2019, 9 September 2019, 7 April 2020, and 6 or 7 July 2020 were consistent with both very infrequent heroin use and contact with sweat or similar from an individual, ie external contamination. They explained, when giving evidence before us, that a close contact who has used heroin would excrete 6-MAM in sweat or saliva, which could then contaminate the other person's hair. 5. Dr Robertson added that "low level use" of heroin is not necessarily a low dose, it could also be that frequency of use was low ie occasional rather than regular use.
3. In a recent joint report those four experts commented on the last hair test and said it indicated exposure to heroin in approximately the previous three months, but did not prove use of heroin by Dr Smithson. The result was also consistent with contamination such as by contact with a surface contaminated by heroin powder or by direct contact with a heroin user. The presence of some of the morphine and codeine could be consistent with Dr Smithson's use of Panadeine preparations on 11 April 2021.

Consideration

1. We do not consider it necessary to traverse the very lengthy expert evidence in any detail as it is not our role to determine whether the tests do or do not show that Dr Smithson has been using heroin (Ghosh v Medical Council of New South Wales [2020] NSWCA 122 at [9]).
2. The first six hair tests were positive for 6-MAM at low levels and below the standard cut-off level for reporting. In some samples morphine and codeine were detected.
3. From 14 July 2020 until 15 February 2021 Dr Smithson's medical registration was suspended and hair samples were not obtained.
4. The hair test on 21 May 2021 shows the presence of both 6-MAM and morphine with levels above the respective cut-off points, and a low concentration of codeine.
5. There were three urine tests from 11 December 2017 to 2 August 2018 which showed trace concentrations of morphine. In that period approximately 120 samples would have been collected.
6. Only the one urine test on 14 January 2019 has been positive for amphetamine and above the cut-off point for reporting.
7. Three urine tests 30 March 2020 to 8 July 2020 were positive for morphine above the cut-off point.
8. Since the resumption of urine testing in 2021, no samples have tested positive for morphine. Dr Appleton said that the last 50 urine samples provided by Dr Smithson have been analysed to the laboratory limits of detection of opioids and have been found to be negative for morphine.
9. The evidence shows that there are three possible causes for the test results.
10. We accept the evidence of Dr Appleton and are satisfied that laboratory error is a very unlikely cause of the findings.
11. The second possible cause of the findings is contamination of Dr Smithson's hair. Various mechanisms have been suggested including the sweat and saliva of his friend who is a heroin user and her environment. Poppy seed ingestion cannot be a cause of 6-MAM being in his hair, but it can be a source of morphine in his hair or urine samples.
12. The third possibility is personal use of heroin by Dr Smithson.
13. We are satisfied the possibility of personal use by Dr Smithson being the cause of the test results cannot be excluded, although this is unlikely for a number of reasons. It would be unusual for someone with a past history of severe active heroin dependence to then be a sporadic or persistent low level heroin user for many years without progression to more severe and clinically significant use. In addition the great majority of the urine results since 2017 have been negative for non-prescribed opioids. Also, all 50 urine samples obtained around the time of the last hair test on 31 May 2021 were reported as negative for opioids and further analyses down to the absolute level of detection have shown no detectable morphine or 6-MAM. The presence of codeine and morphine in the hair sample of 21 May 2021 could be explained by the use of codeine on a trip to South Australia which we discuss later in these Reasons.
14. The possibility of personal use by of heroin Dr Smithson does give rise to a risk to the health and safety of the public, and could damage the reputation and standing of the medical profession.
15. It is uncontroversial that a medical practitioner who uses heroin poses a risk to the health or safety of any person or persons arising primarily from the risk that he could work while under the influence of drugs. The seriousness of the harm that could ensue is exemplified by Dr Smithson's previous boundary violation while addicted to heroin.
16. The level of risk is not high because of the real possibility that the testing is being confounded by other issues. However this risk must be seen in the context of the other matters which we will now go on to discuss.
17. In relation to the "public interest" consideration (the second limb of s 150), the fact is that occasional hair or urine test results have been positive for substances consistent with (although not determinative of) heroin and other drug use for over four years. For most of that time Dr Smithson has been practising as a doctor. Those test results, in the context of Dr Smithson previously having had a severe active heroin addiction, could undermine the confidence of patients and others in the ability of the regulatory system to ensure their safety.

Missing a urine test

1. As at 15 June 2021 the following condition was on Dr Smithson's registration: "10. To comply with the Medical Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for: 1. urine drug screening 3 times a week; and 2. quarterly hair drug screening."
2. The Medical Council's Drug Screening Policy and Participant Procedure: drug screening has said, since 4 June 2018: "If you must attend 3 times a week urine drug screening you do not need to attend for screening on public holidays (as defined in the Public Holidays Act 2010 (NSW)). But you must attend the next business day after the holiday."
3. 14 June 2021 was a Monday and a public holiday. Dr Smithson did not attend for testing on Tuesday 15 June 2021.
4. Dr Smithson does not deny that he breached this condition on his registration.
5. On 5 July 2021, Dr Smithson's solicitor wrote to the Council: "As you are aware, 15 June 2021 was a Tuesday namely, the day after the Queen's Birthday long-weekend. Dr Smithson instructs us he accepts that he 'overlooked' the requirement that he attend on that day, being the next business day after the public holiday Monday on which he did not need to attend. Dr Smithson instructs us he believes that previously, the Council's 'Participant procedure: drug screening' document did not require attendance on the day following a public holiday and whilst he is careful to ensure he is compliant with UDS (as was demonstrated by his undertaking UDS whilst suspended), it simply did not occur to him that he needed to provide a UDS that day. Dr Smithson instructs us he has carefully reviewed the 'Participant procedure: drug screening' document again and accepts his error. Again, we are instructed Dr Smithson is embarrassed at his error but denies deliberately not providing a UDS that day."
6. In his statement dated 30 July 2021 Dr Smithson said he was required to undergo a urine test on each Monday, Wednesday and Friday. The 15th of June was a Tuesday. It did not occur to him to provide a sample as he was busy at work and his supervisor was on leave which left the Mental Health service short-staffed. In addition, the Procedure previously had not required him to attend for testing on the first business day after a public holiday.
7. Dr Smithson, in his statement dated 5 August 2021, said "Further, for some years after my initial return to practise, the Council's drug screening policies did not require practitioners to attend UDT on the first business day after a public holiday. I believe that also contributed to my failure to provide a sample that day."
8. Dr Smithson added, when giving evidence, that it was not in his routine to get up early on a Tuesday, so he forgot to go.
9. In circumstances where the Procedure had been in place for three years at the time of Dr Smithson's non-compliance, we have difficulty in accepting Dr Smithson's excuse.
10. We also note that this was a breach which Dr Smithson did not volunteer to the Council. It was only disclosed after the Council wrote to Dr Smithson on 30 June 2021 asking for an explanation for his non-attendance.

Taking codeine tablets

1. As at 26 April 2021 the following conditions were on Dr Smithson's registration: "7. The practitioner shall not: b. subject to (9) self-administer: ii. any narcotic derivative, non-prescription compound analgesic or cold medication. 8. The practitioner is to only take the medications referred to in 7(b) i. and ii. if they are prescribed and taken at the direction of his treating practitioner. 9. In the event the practitioner is prescribed or directed to take a: a. Schedule 8 drug b. a narcotic derivative; or c. 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 and provide written confirmation of the treatment from the treating practitioner to the Council.
2. The hair drug test on 21 May 2021 was positive for codeine. The Council wrote to Dr Smithson asking for an explanation.
3. In his reply Dr Smithson's solicitor said that Dr Smithson had flown to South Australia on 26 April. After a delay at Adelaide airport, he travelled to Port Lincoln. Dr Smithson had a recurrence of chronic back pain that evening. He was staying with his aunt and uncle and they gave him medication. He took two Panadeine tablets at 11 pm and, later that night, two Panadeine Forte tablets, all of which contained codeine. He took another two Panadeine Forte tablets the next evening. It did not occur to him to tell the Council.
4. In evidence before this Tribunal, Dr Smithson said he had not considered attending a doctor or hospital or taking another medication which was permitted by the conditions on his registration.
5. Dr Smithson does not deny having breached these conditions on his registration.

No supervision

1. As at 15 June 2021 the following condition was on Dr Smithson's registration: 3. The practitioner shall: a. practise under Category B supervision in accordance with the Council's Compliance Policy - Supervision as varied from time to time and as subsequently determined by the Council (as the appropriate review body); c. meet with the approved supervisor on a weekly basis for not less than one hour; f. not practise until a supervisor has been approved by the Council.
2. Under that Policy, Category B supervision provides that the supervisor is to monitor and provide indirect supervision and be readily available to provide advice, assistance or direct supervision as required. The supervisor is to practise at the same location. The supervisor may, in exceptional circumstances, be off-site but must be contactable by phone to provide advice or assistance as required.
3. The Policy clearly provides that failure to comply constitutes a breach of conditions.
4. In February 2021, Dr Drew, psychiatrist and the Clinical Director of North Shore/ Ryde Mental Health Service was appointed as Dr Smithson's supervisor in accordance with condition 3.
5. From 10 June 2021 to 25 June 2021, Dr Drew was on unplanned medical leave. She then took a further 4 weeks medical leave.
6. From 15 June 2021 to 24 June 2021, Dr Smithson worked unsupervised.
7. Dr Smithson does not deny that he breached this condition on his registration. In his statement dated 5 August 2021 he says: "… whilst I accept that I practiced between 15 and 24 June 2021 whilst Dr Drew was on leave, Dr Brahmbhatt was onsite and available between 15 and 20 June 2021 and in any case, I was working alongside a consultant psychiatrist at all times. Further, the incoming Clinical Director had been advised of the supervision requirements."
8. When giving evidence Dr Smithson conceded that, at the time, no other doctor at the hospital had been approved by the Council to be his supervisor.
9. Dr Smithson's solicitor said in his letter to the Council dated 5 July 2021 that it had simply not occurred to Dr Smithson that in Dr Drew's absence he could not practise.
10. We are satisfied that this breach of the condition to be supervised was only brought to the attention of the Council because Dr Drew was late in providing her supervision reports for April and May 2021 to the Council.

Conclusion

1. Dr Smithson has engaged in many supports in what will be a life recovery journey. Most of the practitioners believe that Dr Smithson no longer uses illegal drugs and have recommended that his conditions be relaxed so that he can work in different professional roles.
2. This includes Dr Wodak who was the Director of the Alcohol and Drug Service at St Vincent's Hospital, Sydney from 1982 until he retired in 2012 and is an addiction medicine specialist. He started to treat Dr Smithson in 1998 when he was "in a shocking state". Dr Smithson gradually improved. When Dr Wodak retired in 2012, he contacted Dr Smithson and offered to assist him to attempt to re-register as a doctor. They began meeting every fortnight and are still meeting regularly.
3. Dr Wodak has described his role as guiding Dr Smithson down a difficult and uncertain path. He described Dr Smithson as having extraordinary resilience and being more committed to achieving recovery and pursing his rehabilitation than any other patient he had known. In late 2020 he was very confident that Dr Smithson had not used heroin or any other illicit drugs since August 2013.
4. In his last report Dr Wodak noted that he had told Dr Smithson on a number of occasions that he should avoid taking analgesia and that he was surprised and disappointed that Dr Smithson had done so in South Australia and not told him as soon as possible. He remains confident that Dr Smithson does not use opioids and will not take such medication again without complying with the conditions on his registration.
5. Dr Smithson also has the support of his treating practitioners.
6. Dr Klug has been Dr Smithson's treating psychiatrist since 1 February 2018. He has seen no evidence of Dr Smithson using illegal drugs and considers that he has engaged extremely well with treatment. He described Dr Smithson's long-term prospects for his remaining abstinent from any illicit drug use in the future as extremely good. He recommended easing the conditions on Dr Smithson's registration.
7. Dr Thalagala is a primary care physician and has been managing Dr Smithson's medication on the opioid substitution program. He is of the view that the long-term prospect of Dr Smithson remaining abstinent from using illicit drugs is quite high.
8. Dr Jurd is a psychiatrist. He met Dr Smithson about 20 years through his attendance at Doctors In Recovery and as a patient. He has followed Dr Smithson's progress closely, speaking often to him and his supervisor. He considers that Dr Smithson has made the necessary changes to his life to maintain long term abstinence from drugs. He recommended a reduction in the level of supervision.
9. Dr Smithson sought out psychotherapy and has attended Dr Graham since 19 November 2019. Dr Graham described Dr Smithson as highly engaged in his therapy and is very optimistic that Dr Smithson will remain abstinent from illicit drug use.
10. Prof Phillips is a consultant psychiatrist, who treated Dr Smithson in 1998 and then again from 2014 until 18 May 2017, when he became Dr Smithson's mentor pursuant to the conditions on his registration. He said that when he had been Dr Smithson's treating psychiatrist, Dr Smithson had been fully engaged and complaint with therapy. He had no reason to believe that Dr Smithson had been devious, or used or attempted to use proscribed substances. He considered Dr Smithson had made a good recovery from his previous substance abuse problem and had a good longer term prognosis. He recommended a gradual removal of the conditions on his registration.
11. Dr Drew is Dr Smithson's supervisor at the hospital. She explained that he is performing well in a difficult role as a relief Registrar. He cannot move to any other role which requires him to work outside 9 to 5 on weekdays as a supervisor would not be available. She described him as passionate about his work, performing his role with thoroughness, diligence and thoughtfulness in a collaborative and respectful manner. He conducted himself professionally and with appropriate warmth. No concerns about his professional performance or function had been brought to her as the Clinical Director. The only issue which had arisen was the managing of boundaries with former patients or their families as he finds it difficult not to continue in a treating role when he has rotated to relieving in another section of the service.
12. There are also reports in evidence from Dr Smithson's work colleagues. Dr Samuels is a psychiatrist and the Clinical Director at the hospital where Dr Smithson works. Dr Samuels has consistently received excellent feedback from consultant psychiatrists with whom Dr Smithson has worked. He has observed Dr Smithson to be empathetic, extremely knowledgeable, collaborative and well-liked by patients and colleagues. At no time had he ever appeared impaired. Dr Rogers has been a staff specialist psychiatrist at the hospital since 2011 and has worked with Dr Smithson intermittently. She described him as competent, having a high level of clinical experience, diligent, collaborative, empathic, and thorough. Dr Ilchef is the director of the liaison psychiatry service at the hospital and described Dr Smithson's clinical work as prompt, diligent and of a high standard and Dr Smithson as hard-working and personable. He had never seen any evidence of substance use or impairment. Dr Barnes who is a senior staff specialist at the hospital considers Dr Smithson's work to be of a high standard and said that he can work well with others. He had not seen any behaviour which raised a concern about relapse. Dr Curran is a psychiatrist, who works with Dr Smithson at the hospital and finds his work clinically very satisfactory. Dr Curran described Dr Smithson as conscientious and thorough and committed to the patient's wellbeing.
13. Dr O'Connell, an addictions and general psychiatrist, sees Dr Smithson pursuant to the conditions on his registration. In October 2019 he diagnosed a Substance Use Disorder (DSM 5) on maintenance pharmacotherapy. Dr O'Connell thought that while Dr Smithson's recovery was impressive he was still vulnerable. His unwillingness to breakoff relations with friends who were drug users was perhaps cause for concern and an obfuscating factor with regard to his drug screens.
14. We accept that Dr Smithson is performing well at work and engaging well with the both the support systems provided by the Council and those he has sought out himself.
15. In 2016, when Dr Smithson obtained his re-registration, he had, three years earlier, emerged from a severe addiction to heroin which had lasted for around 20 years. Early in that 20 year period he committed a significant boundary violation. It was decided in 2016 that the risk of harm he posed to patients and the public could be managed by the imposition of conditions. In this context, compliance with the conditions on his registration was and is crucial.
16. In his evidence before us Dr Smithson agreed it was his responsibility to comply with those conditions.
17. In our view it is not sufficient for Dr Smithson to simply cast doubt on whether each positive test result since 2017 could be a reliable indicator of illicit drug use. The testing regime has been imposed for a reason, to provide a safeguard. The testing regime is an essential tool in enabling the Council to form a view as to whether Dr Smithson might still be using illicit drugs based on testing results and the practitioner's compliance with the testing regime, to make a risk assessment, and to take appropriate measures to mitigate risks which are posed to the health and safety of the public. That process is being potentially undermined by Dr Smithson failing to take steps, in a timely way, to eliminate those aspects of his lifestyle which he believes may be the cause of the results. For example, Dr Smithson first said that he suspected that his test results could have been caused by eating poppy seeds when he gave evidence to the Tribunal in April 2016. However he has only recently started asking about poppy seeds when ordering at a restaurant, despite all the positive tests in the interim and the regulatory hearings at which he has repeated this suspicion.
18. There have been previous hearings at which comments have been made as to Dr Smithson's lack of insight into his condition. We note that Council appointed psychiatrist Dr O'Connell thought Dr Smithson had a Narcissistic Personality Structure indicated by his deep feelings of inadequacy and persistent low self-esteem. This caused him to lead an achievement oriented life and have a great need for reassurance and approval.
19. On 21 May 2019 a Tribunal said: "Furthermore, delegates were concerned about a lack of insight Dr Smithson possessed into his own vulnerability. For instance, although he had undertaken serious steps to avoid poppy seeds at the same time he continued to socialise and stay with drug using friends. His lack of understanding and insight into his treatment with suboxone and the correct procedure for stopping was also very concerning as was the fact that none of his treating doctors was an addiction psychiatrist."
20. On 15 October 2019 a Tribunal said: There were specific issues regarding Dr Smithson's insight that concerned the delegates. The first issue is that Dr Smithson continued to stay overnight with a friend, known to actively use heroin, twice per week despite stating that he believed that cross contamination was the cause of his positive HDT for the heroin metabolite 6-MAM. For people in recovery from addiction, being in an environment with a person actively using heroin, who is probably injecting surrounded by drug paraphernalia, would be considered a highly risky and triggering situation. Dr Smithson denied that it was for him. This reflects poor insight and judgement. The second issue is that despite Dr Smithson first positing the possibility of cross contamination in around February/March 2019 he had continued to stay at this friend's house. The only step he had taken to avoid further contamination is to (reportedly) write and distribute a letter to three of his friends explaining why he must not touch them. He was unable to provide evidence of other steps he had taken to avoid cross-contamination. The third issue is that Dr Smithson is currently sponsoring a female member of NA against the usual recommended NA practice. Whilst Dr Smithson could elucidate the policy about intensity of feelings and the possibility of inappropriate relationships developing, he denied that the policy was relevant to him. He explained that he was old enough to be his sponsee's father if he were to have had a daughter. We were concerned that Dr Smithson could not extrapolate the issues surrounding potential boundary violation given his prior history and the Tribunal's findings. There was additionally the issue of lack of independence in that that the sponsee was married to a friend and Dr Smithson was Godparent to her child. The delegates considered this to reflect evidence of ongoing personality vulnerability of the kind that resulted in his deregistration and further highlights the need for the kind of psychotherapy that Dr O'Connell, Dr Florida and Dr Thalagala had recommended. That he had not recognised the risks of this boundary issue was of concern for his future practice of psychiatry."
21. We are also concerned about Dr Smithson's level of insight. He has been reluctant to embrace the suggestion that he is impaired and now only regrets not having participated in the impairment program because he believes he would only have been required to undergo testing for 18 months. We accept the submission made counsel for the Medical Council that his lack of insight into his ongoing vulnerabilities is also shown by Dr Smithson's failure to engage on a regular and weekly basis during 2020 and this year in Narcotics Anonymous meetings and Doctors in Recovery meetings, notwithstanding that he acknowledges that these programs have had an enormous impact on his recovery, with his focus once again inappropriately being on his denial of any drug use.
22. And lastly the recent breaches of the other conditions are of great concern.
23. Dr Smithson's use of Panadeine and Panadeine Forte without a prescription and without informing the Council in a timely way is a flagrant disregard of an important condition on his registration and is also inconsistent with recovery.
24. The seriousness of these breaches is magnified by Dr Smithson's failure to volunteer any of the breaches to the Council.
25. We are of the view that the test results together with Dr Smithson's lack of insight and the later breaches taken together mean that there is an unacceptable risk to the health and safety of the public and an unacceptable risk to the public interest from Dr Smithson continuing to practise without any interim action being taken. This is primarily because there remains a real risk of relapse which the Council must be able to monitor in order to protect the health and safety of the public. Dr Smithson has not taken all reasonable steps to assist the Council to monitor him effectively. He has also exhibited attitudes and behaviour which cause us to doubt his commitment to ensuring that he has complied with his conditions. The damage to the reputation of the profession caused by his behaviour is not in the public interest.
26. Obviously if a relapse does occur, then the seriousness of the risk to the health and safety of the public that will ensue is likely to be significant.
27. The next issue is the determination of the Orders which should be made in the light of this risk assessment.
28. The Medical Council asks us to suspend Dr Smithson's registration.
29. Dr Smithson seeks a variation of the conditions on his registration - primarily a change to Category C supervision which would mean that the supervisor is not required to practise at the same practice location as Dr Smithson and would only meet with him monthly rather than weekly. It would also increase Dr Smithson's career opportunities, as he would be eligible to work in a career medical officer position. Dr Smithson also seeks random urine testing rather than thrice weekly.
30. Dr O'Connell, the Council appointed psychiatrist, considers that he is safe to work under his current conditions. They are, in summary: 1. To practise only in a public health service approved by the Council; 2. To practise under Category B supervision and to meet with the supervisor weekly; 3. Not to possess, supply, administer or prescribe any Schedule 8 drug; 4. Meet with a Council approved psychiatrist to act as his professional mentor; 5. Not to prescribe for self-medication or (unless prescribed) self-administer any Schedule 8 drug or any narcotic derivative, non-prescription compound analgesic or cold medication; 6. To attend for urine drug screening 3 times a week and quarterly hair drug screening; 4. To attend a Council appointed psychiatrist twice a year; 5. To attend a Medical Council Review Interview twice a year; 6. To attend for treatment by a general practitioner; 7. To attend for treatment by a psychiatrist of his choice; 8. To attend for treatment by an addiction specialist; 9. To take any medication prescribed by his treating practitioners.
31. In circumstances where the hair and urine results are not clear evidence of illicit drug use, we do not think suspension of Dr Smithson's registration is appropriate.
32. We accept the opinion of Dr O'Connell and agree that the appropriate order to protect the health or safety of persons and protect the public interest is to continue the existing conditions on Dr Smithson's registration. We have added a condition requiring him to attend a 12 Step program such as Doctors in Recovery at least once a week and a condition nominating the Medical Council as the appropriate body to review the conditions on Dr Smithson's registration.

Costs

1. The Council has asked for Orders requiring Dr Smithson to pay its costs of: 1. The determination of the stay application on 18 September 2020 (Smithson v Medical Council of NSW [2020] NSWCATOD 105); 2. The Tribunal hearing which took place in December 2020 and January 2021 (Smithson v Medical Council of NSW [2021] NSWCATOD 17); and 3. This hearing.
2. Dr Smithson concedes that this Tribunal has the power to make Orders in respect of each of those proceedings.
3. The power to make a Costs Order is set out in Schedule 5D, Clause 13 of the National Law: (1) The Tribunal may order the complainant (if any), the registered health practitioner … at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal.
4. In exercising the power to award costs the general "rule" is that costs follow the event (Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]).
5. Each party has had some success. This matter before us is an appeal by Dr Smithson from a decision on 14 July 2020 to suspend his registration. In that sense, his appeal has been successful. However, we have imposed conditions on Dr Smithson's registration which largely reflect, but are not exactly the same as, those which existed before the decision on 14 July 2020. The addition of a requirement to regularly attend a 12 Step program has been included because of our concern that Dr Smithson needs an additional support to attain more insight into his ongoing vulnerabilities and progresses with his recovery. We have not made the changes to the conditions on his registration which were sought by Dr Smithson. In addition, during this Inquiry we have also considered further breaches which occurred after 14 July 2020.
6. We consider that the appropriate Order is for each party to pay its own costs. As each of the three proceedings described above are part of the process leading to our determination, we consider it appropriate to make the same costs Order in each matter.

Orders

1. The Orders we make are the following: 1. Pursuant to s 159C of the Health Practitioner Regulation National Law (NSW), the suspension imposed pursuant to s 150(1)(a) of the National Law against Dr Smithson on 14 July 2020 be set aside subject to Dr Smithson complying with the conditions as set out in the Schedule to these Reasons; 2. Each party to pay his and its own costs in: 1. Smithson v Medical Council of NSW [2020] NSWCATOD 105; and 2. Smithson v Medical Council of NSW [2021] NSWCATOD 17; and 3. This application. 1. The Medical Council of NSW is the appropriate review body in respect of the conditions on Dr Smithson's registration.
2. Schedule 1. The practitioner shall: 1. practise only in a public health service approved by the Medical Council of NSW ('the Council'); 2. obtain the approval of the Council prior to changing the nature and/or place of his practice. 1. The practitioner shall authorise the Head of Department (or equivalent supervisor) to notify the Council immediately if there are any concerns in relation to the practitioner's compliance with any conditions, his health, or clinical performance. 2. The practitioner shall: 1. practise under Category B supervision in accordance with the Council's Compliance Policy - Supervision as varied from time to time and as subsequently determined by the Council; 2. authorise the Council to provide the practitioner's proposed and approved supervisors with a copy of the decision which imposed this condition; 3. meet with the approved supervisor on a weekly basis for not less than one hour; 4. discuss and review with the supervisor: 1. the management of boundaries; 2. the management of work related stress; 3. the management of clinical material. 1. authorise the approved supervisor to forward reports to the Council on a monthly basis; 2. not practise until a supervisor has been approved by the Council. 1. The practitioner shall not possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW). 2. The practitioner shall: 1. nominate to the Council for approval a registered experienced psychiatrist to act as his professional mentor in accordance with the Council's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body; 2. authorise the Council to provide proposed and approved mentors with a copy of the decision which imposed this condition. 3. at each meeting, request the mentor to include discussion of his personal and/or medical practice issues as they arise from time to time. 4. authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. 1. The practitioner shall: 1. within 14 days of recommencing practice, forward evidence to the Council that he has provided a copy of the decision which imposed this condition to the Head of Department (or equivalent supervisor) in any place that he works; 2. within 14 days of a change in the nature or place of his practice, forward evidence to the Council that he has provided a copy of the decision which imposed this condition, and a copy of his current conditions to the Head of Department (or equivalent supervisor) in any place he works; 3. authorise and consent to any exchange of information between the Council and Medicare and Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions. 1. The practitioner shall not: 1. prescribe for self-medication 2. subject to (9) self-administer: 1. any Schedule 8 drug; 2. any narcotic derivative, non-prescription compound analgesic or cold medication. 1. The practitioner is to only take the medications referred to in 7(b)(i) and (ii) 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 and provide written confirmation of the treatment from the treating practitioner to the Council. 1. The practitioner shall comply with the Medical Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for: 1. urine drug screening 3 times a week; and 2. quarterly hair drug screening. 1. The practitioner shall attend for a review by a Council Appointed Psychiatrist on a six monthly basis or as otherwise directed by the Medical Council of NSW. 2. The practitioner shall attend a Medical Council of NSW's Review Interview on a six monthly basis, or as otherwise directed by the Council. 3. The practitioner: 1. shall attend for treatment by a general practitioner of his choice at a frequency determined by the treating general practitioner. 2. shall 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). 3. must provide the Council with the professional details of the treating practitioner. 1. The practitioner: 1. shall attend for treatment by a psychiatrist of his choice at a frequency to be determined by the treating psychiatrist. 2. shall 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). 3. must provide the Council with the professional details of the treating practitioner. 1. The practitioner shall attend for treatment by an Addiction Specialist (either an Addiction Medicine Specialist [FAChAM] or an Addiction Psychiatrist [Cert. Addiction Psych.]) of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: 1. failure to attend for treatment; 2. termination of treatment; or 3. a significant change in health status (including a significant temporary change). 1. must provide the Council with the professional details of the treating practitioner. 2. authorises the Medical Council of NSW to provide the treating practitioner with a copy of the decision which imposed this condition. 1. The practitioner shall continue to take any medication prescribed by his treating practitioners. 2. The practitioner shall attend the Doctors in Recovery group or similar 12 Step program at least once a week and provide evidence to the Council of his attendance. 3. 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. 4. 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.

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

Amendments 22 September 2021 - Pursuant to s 63 of the Civil and Administrative Tribunal Act the following changes were made: Order 3 Inserted to confirm the correct review body. [126] Correction from 'HCCC' to 'Medical Council' [145] Correction of numbering of conditions imposed. 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: 22 September 2021