Smithson v Medical Council of NSW

Appellant's Evidence

1. The Tribunal will summarise the critical portions of the findings of several experts who have provided reports for the purpose of this hearing. Only a summary is provided, in view of the fact that the findings of the experts for both the Appellant and Respondent have in effect been superseded by the findings of all the experts following a conclave held during the hearing.
2. Dr Olaf H. Drummer (Forensic Pharmacologist and Toxicologist; Consultant specialist at the Victorian Institute of Forensic Medicine: Emeritus Professor at Monash University) Report (8 October 2020) concluded that: 1. Low amounts of morphine were detected in 2 urine specimens (30 March and 6 April) one week apart and again 8 July 2020. These results occurred with negative urine results before and after these readings. No 6-acetyl morphine was detected in any urine specimen. 2. Heroin use was not confirmed due to the absence of 6-acetylmorphine, although 6-acetylmorphine is only detected for a relatively short period after heroin use. 3. The trace of codeine in the urine of July 8 would be consistent with past use of codeine or consumption of food that contained some source of poppy seed-derived morphine (since this often also contains smaller amounts of codeine). 4. Since Dr Smithson denies use of codeine and heroin the most likely reason for these positive results is a dietary source, i.e. consumption of food or beverages that contain poppy seed or poppy seed extracts in the day previous to the collections that returned these positive results. 5. Buprenorphine does not interfere with the test for opiates; however, it does reduce the effect of any dose of an opioid agonist (such as heroin). This is because it is itself an opioid, albeit a partial opioid agonist/antagonist that would compete with heroin/morphine and reduce any effect of these opiates. The therapeutic reason for prescribing buprenorphine is to reduce the desire to use other opioid agonists, and if they were to be used, usual doses are unlikely to have much, if any effect, on the person. 6. In conclusion, given Dr Smithson's continual denial of drug use and the low test results it is possible that results could have occurred from a dietary source.
3. Professor Paul Steven Haber (Specialist in Addiction Medicine, Gastroenterology and Hepatology, Royal Prince Alfred Hospital and Professor at University of Sydney) Report (15 November 2020) concluded: 1. [The test] results are NOT typical for actual use of heroin. As detailed in my earlier report, heroin use is usually associated with strongly positive tests for both 6MAM and morphine. These results are barely over the threshold for a positive result (300) in Australia and would be reported as negative in the USA where the threshold is higher (2000). 6MAM was not reported at all so there is no direct evidence that heroin was used. 2. These results are typical of poppy seed ingestion (see slide 23 of attached presentation by C Appleton, a senior pathologist at QML where these tests were performed). Poppy seeds are often added to muffins, bagels, bread and cakes. They are not always obvious and even small amounts can cause positive tests. When eating out of home, it is not always possible to be confident of the contents of food consumed. 3. [T]he negative UDT results on 27 March, 1 April, 3 April, 8 April, and 6 and 10 July 2020 … add additional weight to demonstrate that the weakly positive intervening results are not reliable indicators of drug use. True positive results from heroin use would last longer and be surrounded by other positive tests in a sequence of regular testing as undertaken in this case. My previous report provided a more complete explanation but in brief, trace positive surrounded by negative strongly suggests a "false positive" result. A false positive result does not indicate drug use and should be discarded. 4. Buprenorphine is difficult to detect in urine, but it is chemically distinct from heroin and morphine so its presence should not influence chromatographic detection of morphine. If Dr Smithson had indeed taken a high enough dose of heroin to overcome the 'blockade' effect of buprenorphine, the high doses of heroin and its metabolites would be easily detected for several days in pathology testing. This makes the barely-above-threshold-positive results almost certainly "false positives". 5. It is unsafe to rely upon an isolated low-level positive result. I have indicated this in my previous report and Prof Drummer has done likewise. An isolated urine test result does not establish drug use. Heroin is metabolised to 6-MAM and thence to morphine. Heroin is rapidly metabolised so heroin itself is rarely found in blood or urine samples, but 6-MAM and morphine last long enough to be detectable in urine, blood and hair. Both should be positive to provide strong indication that heroin has been used and metabolised by the subject. 6. It is not possible to conclude from the UDT that heroin has been used if a heroin metabolite is not found. The absence of 6-MAM makes contamination or use of codeine of pharmaceutical opioid likely. 7. It is always important to interpret pathology tests in the clinical context and to avoid excessive reliance on test results, The burden of proof always lies with the testing provider to establish the positive result. I am very confident that has not been done in this case. 6-MAM was not reported in the urine so there can be no valid conclusion that heroin was used. One can speculate as to the cause for trace positive results but the issue at hand is to understand whether these results confirm heroin use and they do not. (Original emphasis) 8. Laboratory error cannot be ignored as a possible explanation. There are several sources of error but one example is carryover from previous positive samples if the equipment is not cleaned sufficiently from one sample to the next.
4. Dr Jonathan Phillips AM (Consultant Psychiatrist), Report dated 16 October 2020. Dr Phillips concluded: 1. There is an obvious discrepancy between the opinions offered by the specialists, and concerns by the Medical Council of NSW that [the Appellant] had used drugs and thus is not a fit person to be registered as a medical practitioner. The recent comments of Professor Haber cast serious doubt on the methodology and results of testing. 2. Dr Smithson has continued to see me in mentorship, generally on a monthly basis. He remains thoughtful and co-operative, despite understandable anxiety regarding his professional future. I have no reason to believe that he has been self-serving in his interaction with me. He does not have any significant mental symptoms (beyond understandable anxiety, and mild obsessional personality traits), and he is not suffering from any form of psychotic disturbance. His cognition remains unimpaired. He understands the importance of enquiry into his capacity as a medical practitioner, but continues to express concern regarding the reliability of interpretation of the drug tests. Once again, I believe Dr Smithson is not an impaired practitioner (in keeping with the structure of the National Law). 3. I have made a detailed enquiry about Dr Smithson's recent professional life. There is nothing to suggest that he lacks training/ability/capacity to continue with his hospital-based employment. Further, [his] employment is carefully monitored by various supervisors. There is no reason to believe that he is likely to put any patient, or other person, at risk. His mentorship will continue, of course, in the foreseeable future.
5. Dr Alex Wodak AM (Emeritus Consultant Physician, Alcohol and Drug Service, St Vincent's Hospital, Sydney) Report dated 12 November 2020). Dr Wodak stated: 1. The late Dr. John Ellard referred Jonathan Smithson to me in 1998. This was three years after Dr. Smithson's pregnant wife had tragically and unexpectedly taken her life. After his wife's death, Dr Smithson underwent a severe, complex and protracted bereavement. During this period he became severely depressed and committed a boundary violation with a female patient, and commenced injecting heroin. When I first saw him he was still in an abject state. I recommended that he should commence methadone treatment because of his extensive heroin use and this treatment soon started. 2. Since 2013, [the Appellant] has never seemed "odd" or inappropriate. In 2013, Dr Smithson stopped using street drugs and started supervised drug testing. Over the next year or so, there was a dramatic improvement in many respects including his appearance and coherence of his conversation. I looked out for but never saw any signs of drug use. For many years, my first question at every appointment was 'when did you last use drugs?' Dr Smithson always stated very emphatically in reply that he has not used any illicit drugs since July 2013 and that if he ever did so, he would promptly let me know. I accepted and still accept that this reply is a true statement. 3. Dr Smithson has now been in intensive and uninterrupted treatment provided by me, and several others, since 2012. People who stay in drug treatment for a long time generally do very well. If they are not doing well, they almost always drop out of treatment. This is another reason why I am extremely confident that Dr Smithson has not used drugs since July 2013. Doctors generally have much better outcomes from alcohol and drug problems than lay people. The following study, the largest long-term follow up study of doctors in the world, supports these conclusions. 4. I think the likelihood that Dr Smithson will relapse to illicit drug use is about the same as that of an average male in his fifties using illicit drugs for the first time. In both cases, for practical purposes, the risk can be regarded as zero.
6. Dr Peter Alexander Klug (Adult and Forensic Consultant Psychiatrist) Report dated 12 November 2020, stated: 1. Dr Smithson has attended regular appointments with me since 1 February 2018 and I reviewed him recently. There is no evidence of his using illegal drugs. 2. Dr Smithson has engaged extremely well with treatment. At all times I regard him as being open and spontaneously providing me with information about his life and his mental state. The information he provides me at all times is internally consistent and I have no reason to consider that he is dissembling about any matters. I am extremely willing to be involved in his treatment for the foreseeable future. 3. I believe the long-term prospects for [the Appellant] remaining abstinent from any illicit drug use are extremely good. 4. In my opinion Dr Smithson ought to be permitted to return to practise. I believe that the conditions which were imposed upon his registration should be eased and ultimately ceased. I do not believe that Dr Smithson represents any threat to the community at large as a medical practitioner.
7. Dr Klug became the Appellant's psychiatrist after Dr Danielle Florida ceased seeing him. Dr Klug has seen the Appellant monthly since 1 February 2018 and last saw him on 17 December 2020.
8. Dr Klug said that the Appellant is not suffering from a psychotic disorder and observed that the Appellant was stressed due to financial constraints and concern over this application. While he had read the reports of Professor Haber and Professor Drummer, Dr Klug said that he did not feel qualified to comment on the positive tests himself and deferred to their expertise and opinions.
9. Dr Klug confirmed the content of his report and stated the Appellant was at all times open and frank and discussed matters with him in such a way that he considered the Appellant to be reliable and was desirous of returning to a drug-free life. Dr Klug considered that the Appellant's prospects for the future were very good.
10. Dr Klug said there is very little to suggest that the Appellant was a threat to the community, and speculated that the rigorous regime of testing may have contributed to the Appellant's stressed condition. Dr Klug said that he believed that support for a female friend who was a heroin user was not necessarily troubling.
11. Dr Anura Thalagala, Primary Care Physician, provided a report dated 8 November 2020, and provided oral evidence before the Tribunal. Dr Thalagala has known the Appellant for 20 years and his evidence may be summarised as follows: 1. I have known Dr Smithson since year 2000, when I was working at the Drug & Alcohol clinic at 2 South Street, Kogarah. There was a period of [a] few years, when I left the clinic to my private rooms also at Kogarah, when Dr Smithson was referred back to me, by Dr Petherbridge, Senior Registrar in Psychiatry, Drug & Alcohol at the St. George Public Hospital, Drug & Alcohol clinic. I saw Dr Smithson and continued him on the opioid substitution programme again since January 2013, when the referral was made by Dr Petherbridge. Dr Smithson sees me once a month currently to review his medication and to discuss any issues and to obtain the continuation of the prescription. He always presents well and showing no evidence of [being] under the influence of any illicit drug or alcohol at all times. I have not suspected him of using any illicit drugs during my associations clinically during my consultations, to date. 2. I am certain and positive Dr Smithson's long term goal is to work and earn a descent (sic) living in the profession he was trained in. He has a good insight that only way that can be achieved through remaining abstinent from illicit drug use as long as he wants to continue working as a Medical Professional. My own view is that his long term prospects of remaining abstinent from using illicit drugs are quite high. 3. I do not believe the results are suggestive of evidence of relapse. True relapse will produce more continuous positive urine results than one or two off sub threshold "positive" results. The UDT results of Dr Smithson are most likely from contamination or inadvertent dietary ingestion is highly possible.
12. Dr Thalagala stated that he was very surprised to learn of the positive drug reports. Since treating the Appellant, Dr Thalagala was not aware that the Appellant had taken any illicit drugs for at least seven years and was satisfied that he is now drug-free. He did not agree that the positive results of the testing were consistent with the use of illicit opioids and speculated that they were the result of a laboratory error. Dr Thalagala said the Appellant was punctilious and compliant with all the advice provided to him. Dr Thalagala supported the lifting of the suspension to allow the Appellant to resume practice.

Respondent's Evidence

1. The Respondent has tendered a schedule of the HDS and UDS results between 11 December 2017 and 8 July 2020, the results of which were as follows:
2. The Respondent relies upon the reports of toxicologists, the essential findings of which are extracted from their reports as follows:
3. Dr Michael Robertson (Pharmacologist and Forensic Toxicologist) Report dated 16 October 2020: 1. [T]he significance of positive UDT results for morphine on 30 March 2020, 6 April 2020 and 8 July 2020 (all being Mondays) and two days later there were negative UDT results suggest the time of exposure to the source of the morphine most likely occurred on the day of collection (e.g. poppy seeds) or on the day or days prior to the collection of the sample (e.g. heroin, morphine, codeine). 2. [T]he significance of positive UDT results for morphine on 30 March 2020, 6 April 2020 and 8 July 2020 (all being Mondays) and the Fridays beforehand there were negative results suggest the time of exposure to the source of the morphine most likely occurred between the time of the Friday urine collection and the respective Monday urine collection. 3. Concentrations of drugs in hair in general are difficult to interpret with respect to dose administered. That is, due to variations in dose, melanin content, washing techniques, frequency of use etc. the number of drug use occasions that are reflected in a hair drug concentration is broadly speaking uncertain. That said broad statement can be made with respect to whether the amount of drug present is low, moderate or high. With respect to the 6-MAM concentrations detected these would be regarded as low relative to the amounts in scientific publications associated with regular users of heroin. (citation omitted) Therefore if the presence of 6-MAM was from heroin use, it is likely that the use was relatively low (i.e. weekly or monthly). If the presence of 6-MAM was from external contamination, the amount of exposure would be very low however an amount of drug may have been removed from the external surface of the hair during routine washing.
4. An additional report dated 22 October 2020 has been provided, the salient points being: 1. Dr Smithson gave evidence during the s 150 hearing that his hairdresser has a known opiate history and cuts his hair every 3 to 4 weeks … It is possible that this is an explanation for the ongoing positive hair samples. 2. Dr Smithson gave evidence during the s 150 hearing that he stays with his friend, [name redacted], who is a known heroin user, a couple of nights a week, but she does not use heroin in his presence. … Unless there is significant contamination of his friend's household in particular, it is more likely that any passive exposure was via the ingestion of food containing poppy seeds. 3. The use of buprenorphine at the relevant time would have no impact on the results i.e. detection of morphine or 6-MAM in either urine or hair.
5. In a second additional report dated 1 December 2020, Dr Robertson comments upon the reports of Professor Olaf Drummer, dated 8 October 2020, and of Professor Haber, dated 15 November 2020. The critical observations are as follows: 1. Professor Drummer without directly answering the question states that heroin is primarily metabolised to morphine (paragraph 5.1.1); that morphine may be present in urine after heroin use for 'up to about 2-3 days, depending on dose' (paragraph 5.3) and that 6-acetylmorphine (6-AM) will only be present in urine for 'several hours'. I concur with this and as such depending on dose, low amounts of morphine in the absence of 6-AM could be present three days after heroin use. 2. Professor Haber states that 'these results are NOT typical for actual use of heroin'. I disagree with Professor Haber insofar as 6-AM is only present in urine for a few hours after heroin use. Morphine however may be present for 48 hours or more depending on dose and other factors and as such small amounts of morphine may be in the urine three days after heroin use and the presence of 6-AM would not be expected. 3. Professor Drummer states in paragraph 6.4 that 'Since Dr Smithson denies use of codeine and heroin the most likely reason for these positive test results is a dietary source' and in paragraph 6.6 states that 'Given Dr Smithson's continual denial of drug use and the low test results it is possible that the results could have occurred from a dietary source'. I concur that results of the UDT's provided on 30 March, 6 April and 8 July 2020 are consistent with or explained by dietary contamination. 4. Professor Haber states these results are 'typical of poppy seed ingestion'. I concur.
6. Dr Charles Appleton (Director of Biochemistry/Toxicology) Report dated 1 December 2020, made the following observations: 1. As to the frequency and degree of use or passive exposure by Dr Smithson necessary to lead to the positive results for morphine being detected in the UDT results on 30 March 2020, 6 April 2020 and 8 July 2020: The actual level of morphine found in urine is the result of two processes - absorption of the dose which is generally complete within an hour or so of ingestion, and the time since that ingestion. 2. The level is further modulated by the amount of water which the subject's kidneys are excreting at the time of sample collection (this is in response to the amount of fluid which the subject consumed in the hour or two prior to sample collection) and this is assessed by evaluating the urinary creatinine concentration of that sample. 3. A low creatinine indicates that the subject may be excreting an excessive amount of water, and this may have the effect of diluting substances contained in that urine to a level below the reporting cut-off defined in the Standard. 4. With "standard doses" of morphine, codeine or heroin, the level is initially high (in the low thousands or higher of ug/L) and falls progressively until it falls to a level below the cut-off which is defined in the Standard of 300 ug/L within 3-4 days. 5. The urine test performed on 30 March 2020 revealed a level of morphine of 362 ug/L in urine with an unexceptional creatinine contentration of 13.0 mmol/L. This level is not high, being just above the confirmation cut-off for reporting which is in the Standard (AS/NZS 4308:2008). This level would typically be seen 3-4 days after a "standard dose" of codeine, morphine or heroin. 6. No codeine was present at any level down to the analytical limit of reporting - use of codeine is improbable. 7. The urine test performed on 6 April 2020 revealed a level of morphine of 738 ug/L with an unexceptional creatinine concentration of 8.2 mmol/L. Again the level is not high and would typically be seen 3-4 or possibly even 2-3 days after last use of codeine, morphine or heroin. Again no codeine was detected at any level down to the analytical limit of reporting. 8. The urine test performed on 8 July 2020 revealed a morphine level of 425 ug/L and a codeine level of 59 ug/L with an unexceptional creatinine of 14.3 mmol/L. This morphine level would typically ve seen 3-4 days after last use of codeine, morphine or heroin and this codeine level would typically be seen 3-4 days or longer after last use of codeine. 9. The positive urine tests for morphine on 30 March and 6 April 2020 are consistent with use of morphine or of heroin in the days prior to sample collection, but not within 48 hours of sample collection. With respect to use of heroin, the intermediate in heroin metabolism, 6-monoacetylmorphine is detectable in urine for less than 12 hours after use. Its absence does not preclude use of heroin. 10. The positive urine test for morphine with a low level of codeine on 8 July 2020, is not consistent with use of pharmaceutical morphine alone … If the subject used heroin or morphine prior to this test, then it is highly probable that he used codeine in addition. 11. Culinary poppy seed which is imported into Australia generally ontains predominantly morphine (90-95%) and a small amount of codeine (5-10%) along with another opiate, thebaine. In the initial screening tests which revealed the presence of morphine glucuronide and opiates in the relevant urine samples, we also test for thebaine down to a limit of detection of 10 ug/L. In none of the three urine samples was thebaine detected. This argues against but does not absolutely preclude the source being culinary poppy seed. The absence of codeine from the samples of 30 March and 6 April 2020 argues against but does not absolutely preclude the morphine having been derived from poppy seed. The presence of codeine at a level which is above 10% of the morphine level is unusual for poppy seed although in the last month we have identified a batch of poppy seed with a higher codeine content in a popular brand of Gluten-free and Low Carb bread. The finding of the small amount of codeine with morphine argues against culinary poppy seed being the source but does not absolutely preclude it.

Legal principles

1. For the Appellant to succeed in this appeal, it is essential that he demonstrate, to the satisfaction of the Tribunal, that he is now a "fit and proper person" to be registered as a medical practitioner. The overriding duty of the Tribunal is to ensure that the public is protected from any conduct or incompetence on the part of a practitioner. Section 3A of the National Law requires that the "protection of the health and safety of the public must be the paramount consideration" when considering allegations of, inter alia, the practice of medicine which is deficient. Further, if there is a risk of incompetence due to any conduct of the practitioner, the Tribunal must take that into consideration and potential impairment from the use of illicit substances is a factor for consideration.
2. As was stated in Health Care Complaints Commission v Brush [2015] NSWCATOD 120, the following observations are made (at [72] - [73]): We agree with the submission made by the Commission that, in considering whether Mr Brush "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members 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 (ss 3(1) and 3(2)(a) of the National Law). [72] While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills. [73]
3. In Cunliffe v Commonwealth (1994) 182 CLR 272 Mason CJ stated, in reference to the words "fit and proper person": In some contexts, the words "fit and proper person" are so indefinite that they have been held to confer in effect what amounted to a discretionary judgement on a licensing authority… But the context may supply sufficient precision. [43] The term "fit and proper" is to be construed in the light of the particular legislative context: see Hughes and Vale Pty Ltd v NSW (1955) 93 CLR 127 at 156, Dixon CJ, McTiernan and Webb JJ.
4. There are numerous other authorities concerned with the concept of "fit and proper": see for example Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53; Hogan v Hinch [2011] HCA 4 at [73]; McKinnon v Secretary, Department of Treasury (2006) 228 CLR 43 at [55]; O'Sullivan v Farrer (1989) 168 CLR 2010 (at page 505); Prakash v Health Care Complaints Commission [2006] NSWCA 153 at 91 per Basten JA; Crickitt v Medical Council of NSW ( No 2) [2015] NSWCATOD 115 at [56); Director of Public Prosecutions v Smith (1991) 1 VR 63.

Onus of proof

1. The Appellant bears the onus of establishing that the decision of the Council under appeal should be set aside, and that the impairment found by the previous Tribunal is no longer in existence. The test has been accepted as that in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Although it has been described as a misnomer to consider the burden of proof in a Tribunal where the rules of evidence do not prevail: see Hayne J in FTZK v Minister for Immigration and Anor [2014] HCA 26 at [33]-[36], such standard is accepted as the appropriate test in this Tribunal for matters arising under the National Law: see Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14] and the observations of the Court of Appeal in Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 referred to therein.
2. The Tribunal will apply the following principle: The onus lies on the [Appellant] for reinstatement to demonstrate that she can be relied upon to practice in accordance with the professional standards expected of a health practitioner and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: See Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24].

Conclave

1. On the first day of the hearing, the Tribunal indicated to the parties that it would be efficient if the principal experts for both parties, each of whom was eminent in the field of toxicology and drug use, could conclave together. Accordingly, a conclave took place between Professor Haber, Professor Drummer, Dr Robertson and Dr Appleton. As a result of their lengthy discussions and debates, they announced the following consensus to the Tribunal: 1. The results of the UDT testing conducted on 30 March, 6 April and 8 July 2020 were positive. They show that morphine was present although the concentration was at the low end of the positive scale; 2. The cause of such concentration could be the result of infrequent or low-level heroin use; morphine use; or poppyseed ingestion. Drs Appleton and Robertson considered that consumption of illicit drugs was more likely to have caused positive hair and urine tests, but they could not be certain. 3. All experts agree that the pattern of the test results indicated either infrequent heroin use or external contamination. If the latter, the likely cause was ingestion of poppyseed. Given the low level of monoacetyl morphine, it was a reasonable proposition that the test results were caused by the Appellant's diet. 4. Hair testing was carried out on 22 February 2019; 23 May 2019; 30 July 2019; 9 September 2019; 7 April 2020 and 6 or 7 (it is unclear) July 2020. The positive results of heroin were very low. Whilst such result could be attributed to very infrequent doses of heroin, contact with sweat from a current opioid user could be an explanation. 5. Whilst the experts for the Appellant tended to fall on the side of accidental causes, the experts for the Respondent tended to suggest that infrequent use of heroin could not be excluded. However, all agreed that it was simply not possible to determine any definite cause or source of the positive results and that additional testing would be of no benefit. 6. The experts agreed that the presence of poppyseed in foods such as bread; bread rolls; or poppyseed muffins, could produce a positive test result. The Appellant had stated that he ate out, on average, five times per week and did not always check the content of the food he ordered. 7. The result of the hair testing on 30 March 2020 was at a level below the recognised Australian Standard for hair testing. 8. The urine tests were positive for morphine in March, April and July 2020 which indicated the possibility of heroin use. The hair testing did not reflect poppy seed ingestion: it reflected either heroin use or contamination from a heroin user. 9. The experts considered that if the Tribunal was minded to grant the application, then a condition should be imposed requiring three levels of testing.

Evidence of Appellant

1. The Appellant provided extensive oral evidence and was cross-examined over several hours. Much of his cross-examination was to provide context for the drug-taking before and after his initial deregistration in approximately 2000. The Tribunal heard that his wife died in about 1990 in tragic circumstances, which caused him to be depressed. He started using opiates in the context of a subsequent relationship that led to his initial deregistration. He then had years of serious addiction to narcotics and shorter periods of dependence on alcohol and cocaine, leading to significant social decline. He has had many years of psychiatric and drug and alcohol input (both counselling and medication), including extensive involvement with Narcotics Anonymous and Doctors in Recovery, all of which he has found helpful. More recently, the Appellant suffered crises including the passing of his father (in 2014), and of his pet dog (recent) and his mother's chronic ill health.
2. The Appellant also testified concerning his living arrangements. He is currently in a pattern of dividing his week between three residences (spending 2 to 3 days in each over a typical week). He resides partially with his mother (his nominated address); partially with a woman who he identifies as his partner (who is anti-drug use, but takes prescribed amphetamines for narcolepsy); and partly with another woman who he identifies as a very close friend (who has been a regular heroin user ever since he met her when he was destitute). The Appellant said that, as the second woman has supported him both morally and financially over many years, he did not feel that he could abandon her merely because of the risk of hair contamination due to his close contact with her.
3. The Appellant also testified that he had attended the same hairdresser for many years and he had become aware that this person was opioid (codeine) dependent. In 2017, when the positive test became available, he did consider whether the contact with the hairdresser had caused the positive heroin traces in his hair. However, he continued to utilise the same hairdresser until shortly before this hearing, when he decided to change hairdressers.
4. Significantly, the Appellant vehemently denied that he had consumed any illicit drugs since 20 July 2013. He pointed to the fact that he had voluntarily submitted to approximately 900 tests over the years (at considerable financial cost), usually on a Monday, and that they had been negative until the recent results. The Appellant asserted repeatedly that he had no craving for drugs; that he did not feel tempted to resort to drug taking; and that it was his belief that the test results were reflective of contamination from external sources.
5. The Appellant stated that he consulted Dr Alex Wodak (Addiction Specialist) and had been guided by his advice over several years. Thereafter he consulted Dr Florida, Addiction Specialist; Dr Jonathan Phillips (whose report is referred to previously); Dr Peter Klug (referred to above); and thereafter Dr Philip Graham, psychotherapist. In December 2019, Dr Florida said she was not in a position to continue seeing him for unspecified reasons and no report is appended.
6. Dr Graham has provided a report which refers to the Appellant's first consultation with him on 25 November 2019. Dr Graham was consulted by the Appellant on 21 occasions between January 2020 and November 2020. Dr Graham stated that he does not believe that there is any evidence of the Appellant's use of illegal drugs during his therapeutic contact with him, and felt the Appellant "to be highly engaged in his therapy with me".
7. In cross-examination, the Appellant reiterated that he was now in his eighth year of being drug-free.
8. In respect of his employment history, he stated that he was engaged since 21 May 2017 as a psychiatric relief registrar at Royal North Shore Hospital. He usually saw between 20 and 25 patients per week and worked a 35-hour week. He stated that he greatly enjoyed the role of a psychiatrist and would usually work from between 8:30am to 5:00pm. He can prescribe medication under supervision.
9. Dr Kathryn Drew is the Clinical Director of North Shore Ryde Mental Health Service. Dr Drew has provided a report dated 6 November 2020 which confirms that the Appellant had returned to work at Royal North Shore Hospital between 4 March 2020 and 13 July 2020. Dr Drew was his supervisor and had provided a report to the Medical Council. Dr Drew stated that the Appellant had always maintained that he remained abstinent from illicit substances and continued: I have had no reason based upon his presentation, alertness or behaviour to form the opinion at any point that Jonathan was intoxicated or under the influence of substances.
10. Dr Drew stated in her report that the Appellant had been a valued employee of the Northern Sydney Local Health District for more than three years; had demonstrated the capacity to practise safely; and that his employment would be continued should his registration be reinstated. Dr Drew was strongly in favour of the suspension being removed to allow the Appellant to resume practice.
11. The Appellant stated that he hoped to return to the same role at Royal North Shore Hospital and hopefully to engage in career progression.
12. Dr Owen Samuels, Clinical Director Mental Health Drug and Alcohol Northern Sydney Local Health District, provided a letter dated 12 November 2020 which confirms the qualities of the Appellant stating, inter alia: Despite my brief working with Dr Smithson, I found him to be an exceptional work colleague. He undertook the nonclerical task of designing and carrying out a number of quality improvement projects. He was most involved with a particular project around lithium prescribing. He did this with an allied health colleague. It was apparent that he had extensive experience in patient care and treatment both in inpatient and community settings. I also had first-hand knowledge of how highly regarded Dr Smithson was by the clinical colleagues that he was working with on the various projects. This was both with medical and allied health clinicians, who repeatedly conveyed to me how appreciative they were of Dr Smithson's input, patience with them and willingness to explain things to them.
13. Such letter also states that Dr Samuels wrote to the Medical Council on 24 October 2019, proposing that the Appellant be allowed to work in a non-clinical role undertaking administrative tasks under his supervision and with weekly pastoral support.
14. Dr Vanessa Rogers has provided a report dated 11 November 2020. Dr Rogers is a consultant psychiatrist employed as a staff specialist psychiatrist at Royal North Shore Hospital since 2011. She stated, inter alia: I have not been Dr Smithson's supervisor but he has been involved in the care of patients for whom I was responsible. During the time he work with me, I observed Dr Smithson to work in a competent manner. He demonstrated a high level of clinical experience. I found him to be diligent, collaborative, empathic, and thorough in his approach.

Submissions

1. The Tribunal has been provided with extensive oral and written submissions by the Appellant, and by the Respondent. The issue between the parties is narrow: can the Appellant be believed when he claims to have used no drugs since 2013. Further, the question of whether there is any ground upon which the Tribunal should set aside the findings of the Medical Council.
2. The Respondent urges the Tribunal to find that the Appellant lacks credibility and that the test results establish that despite the denials of the Appellant, he has consumed drugs and that the test results verify this.
3. The Respondent also submits that the Appellant's evidence is inconsistent and unreliable; that his evidence should be taken with caution; that he has not engaged on a regular and weekly basis during the course of 2020 in Narcotics Anonymous meetings and Doctors in Recovery meetings, despite the fact that such could be of benefit to him; that positive and trace results have existed over many years and are not "a recent phenomenon".
4. Further, the Respondent submits that the Appellant's reliance on psychiatric specialists is of concern; that only he knows whether or not he has consumed drugs; that his conduct creates a likelihood that there will be future trace and positive drug tests giving rise to future disciplinary proceedings in the event that he is permitted to return to practice; that the Appellant's stresses in his own life, namely the passing of his father and of his pet dog, and financial hardship, are motivating factors for him to continue to deny any drug use.
5. The Appellant maintains that the positive drug testing results are attributable to causes other than the intentional consumption of drugs.

Observations

1. It is apparent from the decision of the Medical Council under review, that the Council, in reaching its decision, was influenced by the past history of the Appellant's drug consumption. This decision is set out in the written reasons dated 13 August 2020. The decision then summarised the history of the Appellant with the Tribunal and other disciplinary hearings from 29 June 2000. The section 150 decision referred to the medical experts, namely Dr Phillips; Dr Roberts; Dr Alex Wodak; and Dr Thalagala, upon whom the Appellant relied. Further, it referred to the Appellant's employment history as a relief registrar at Royal North Shore Hospital in May 2017 and his supervision. It also referred to the positive UDT results which recorded positive traces for morphine on 11 December 2017 and 24 January 2018. The Appellant is recorded as having denied using heroin and attributed such reading to the inadvertent ingestion of poppy seeds.
2. The Council then extensively quotes from the report by the Council-appointed psychiatrist, Dr Oliver O'Connell, dated 9 February 2018. Such report concluded that the Appellant suffered from severe substance use disorder and accordingly, met the statutory definition of impaired. It continued: Substance Use Disorder is a chronic relapsing condition but with treatment relapse may be reduced in frequency or prevented altogether. Dr Smithson is showing he is responsive to treatment and appears to be highly motivated.
3. The report continued: [I]t is also apparent that he suffers from significant levels of personality vulnerability and that he can benefit from treatment. I do believe that he could make a useful contribution [sic] medical profession under the conditions outlined [at p.10 of the report].
4. The Council referred to an Impaired Registrants Panel ("IRP") Inquiry which took place in June 2018 and quoted extensively from reports; and thereafter to section 150 proceedings which took place in September 2018 following the Appellant's refusal to consent to conditions at the IRP in June 2018. It thereafter referred to the subsequent history which has already been referred to up to 2020.
5. The Council referred to the Appellant's claims in respect to the causes of the readings, namely food contamination, or contact with the hairdresser. The Council decision referred to the evidence of Professors Haber and Drummer, and of the evidence of Dr Alex Wodak. Thereafter, the Council referred to the need to protect the health and safety of the public; the public interest; and of the relative legal principles, before it reached its decision to suspend the Appellant.

Challenge to Section 150 Decision

1. The Appellant's challenges to the decision are set out in paragraph [4] of this decision. Essentially, the allegations comprise a failure to give sufficient weight to evidence and to various reports by witnesses and referees, namely Dr Kathryn Drew; Dr Jonathan Phillips; Dr Alex Wodak; and Dr Steven Jurd, Consultant Psychiatrist (Drug and Alcohol). The appeal also alleges a failure to place sufficient weight on the reports of the two toxicologists who were supportive of the Appellant.

The Appeal Process

1. Section 159 of the National Law provides the right to appeal from a decision of the Council. Section 159B(1) provides, inter alia, that a registered health practitioner may appeal with respect to a point of law to the Tribunal. However this provision does not confine the right to appeal, since section 159B(2) provides: (2) Subsection (1) does not limit a right of appeal under section 159.
2. Section 159C relevantly provides: (1) On an appeal against a decision of the Council, the Tribunal may by order: (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).
3. The grounds of appeal set out in paragraph [4] raise questions of law, claiming that the Council failed to place sufficient weight on the evidence adduced by the Appellant; failed to take into account relevant considerations concerning the interpretation of the toxicology evidence; took into account an irrelevant consideration, namely that the expert toxicology evidence had been obtained by those appearing for the Appellant; took into account an irrelevant consideration, namely that any positive urine test was a breach of paragraph [4.2] of the Medical Council's drug-screening policy; and took into account an irrelevant consideration, namely that the results of the unspecified urine test indicated direct use was the most probable cause of the positive result.

Interpretation of section 159C

1. The Tribunal is assisted by recent decisions which have applied the provisions of sections 150 and 159C. In Segal v Medical Council of New South Wales [2020) NSWCATOD 86, the Tribunal (at paragraphs [6] - [12]) summarised the law concerning the right of appeal provided by section 159 from a decision under section 150. Critically, the decision confirms that an appeal of this kind is to be heard afresh, that is, it is a hearing de novo as provided in s159(3) which provides: (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. See also Ghosh v Medical Council of New South Wales [2020] NSWCA 122 at [98] - [103].
2. In Ghosh, reference was made (at paragraph [98]) to the decision in Karimi v Medical Council of New South Wales [2017] NSWCATOD 180, on the principle that in assessing whether there was conduct giving rise to an unacceptable risk, either to the health and safety of the public or the public interest, "an acceptable risk could not justify section 150 action". Such finding is consistent with the provisions of section (3) of the National Law where it relevantly provides: (3) The guiding principles of the National Registration and Accreditation Scheme are as follows: (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
3. The Medical Council of NSW was established pursuant to section 41B of the National Law. Various functions under the National Law are bestowed upon a Medical Council, including the receipt of complaints in relation to a medical practitioner. Section 145 of the National Law requires that all complaints are to be dealt with expeditiously and section 150 of such Act provides the power to the Council to take disciplinary action for the protection of the health or safety of any person, or if it is satisfied that action is otherwise required in the public interest. Section 148B provides that the procedure for the calling of a meeting to deal with a complaint is to be decided by the Council. In this instance, the Council delegated its power to investigate complaints against Dr Smithson to three Council-approved delegates.

Consideration of the Appeal Process

1. The issues to be considered on a section 159C appeal may be summarised as follows: 1. No guidance is provided by section 159C as to any legalistic standard which is to be applied in determining whether to set aside a decision of the Medical Council. 2. Those who comprise members of the Medical Council include a majority of medical practitioners, not lawyers: accordingly it would be unrealistic to expect a strictly legalistic standard to be applied in their decision-making, which is often done in circumstances of urgency. In Steel v Medical Council of New South Wales [2020] NSWCATOD 77, the Tribunal referred to the fact that the reasons under challenge must be read as a whole: and that an unduly legalistic approach is not required: see decision [at 97], where the Tribunal referred to the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259 per Kirby J at [77] - [79], which held as follows: "The reasons for the decision under review are not to be construed minutely and finally with an eye keenly attuned to the perception of error". See: Collector of Customs v Pozzolanic [1992] FCA 897 (Full Court). 1. The task of the Medical Council under section 150 is to determine whether, on the information before them, measures are warranted to protect the health or safety of the public: that is an evaluative task. 2. Decisions of the Medical Council are interlocutory in nature, they do not involve fact-finding nor the determination of any merits of any complaint: see Pharmacy Council of New South Wales v Ibrahim [2020] NSWSC 708; Lindsay v NSW Medical Board [2008] NSWSC 40 (decided in relation to the equivalent of s 150, namely s 66 of the Medical Practice Act 1992 (NSW) repealed. The function of a section 150 hearing is "purely protective" in character: see Ghosh v Medical Council of NSW [2020] NSWCA 122 per Brereton JA at [5]. 3. On appeal, the Tribunal must "take the essential step of identifying what the risk was, and whether it was unacceptable": see Ghosh at [103].

Findings

1. Taking into consideration the whole of the evidence of the expert toxicologists arising from their conclave, the Tribunal does not make a finding that the positive tests are sufficiently indicative of drug use to reasonably satisfy the Tribunal that the Appellant has been using illicit drugs. The experts concluded that it was not possible to determine positively one way or the other, whether the Appellant's test results resulted from consumption of illicit drugs. At best it was a "toss of the coin" as stated by Professor Appleton. Further, the hair testing results are so low as to fall below the minimum level for a conclusion to be drawn from the sampling.
2. Having made such finding, it follows that the decision of the Medical Council must be set aside. In doing so, the Tribunal is mindful that the Medical Council did not have the benefit of the evidence that was called before this Tribunal by way of the expert toxicologists' conclave, nor of the detailed opportunity to consider the evidence of other medical specialists who were called.
3. The task of the Medical Council was to consider whether, on the material before it, there was the necessity to take section 150 action. It made no findings of fact, and its decision was, as previously referred to, solely interlocutory and made without the benefit of all the evidence which is now adduced before this Tribunal. The Tribunal notes that the decision of the Medical Council is logical, clear and well-reasoned on the basis of the evidence before it. The Medical Council clearly understood its function when it stated: Our task is not to decide whether Dr Smithson has or has not taken drugs - our task is to examine whether there is enough evidence to justify an order to protect the health and safety of the public.
4. On the evidence before the Medical Council, it was entitled to conclude, on an interlocutory basis, that there was the need for protective measures. The Medical Council did so in fulfilment of its statutory duty for the protection of the public, or otherwise in the public interest (see section 150).
5. In respect of the assertions that medical reports were not given sufficient weight, the Tribunal considers that the principal explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [41] is pertinent, where Gleeson CJ, Gummow and Kirby JJ said: No judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another.
6. The reasons which led the Medical Council to impose the suspension are plainly recorded. To scrutinise the decision of the Medical Council in the manner submitted by the Appellant would be to err, in the manner referred to in Collector of Customs v Pozzolanic.
7. Nevertheless, pursuant to section 159(3), the Tribunal is entitled to reconsider the matter with fresh evidence or evidence given in addition to or in substitution for the evidence that was before the Council. Such fresh evidence has been considered. The process is a "new hearing" and not a rehearing. See Ghosh.
8. The Tribunal is mindful of the submissions made by the respondent concerning the prior conduct of the appellant. The respondent's apprehension concerning the urine and hair testing is forefront in the Tribunal's consideration. However, taking into account the accord reached by the experts, the evidence now before the Tribunal does not satisfy it that the threshold for suspension exists.
9. The Tribunal is impressed by the references provided in support of the Appellant and takes particular note of the reference provided by Dr Drew. Whilst the Tribunal is satisfied that it should set aside the suspension ordered against the Appellant, it is also satisfied that rigid conditions must be imposed to address any possible risk that the Appellant might resort to using illicit substances in the future. Such conditions are incorporated in the orders hereunder. The Tribunal is satisfied that, to ensure maximum detection for illicit drugs, regular testing is required, not random testing as proposed by the practitioner.

Costs

1. Costs have not been argued, and accordingly, the question of costs is reserved. The Tribunal will allow each party to make written submissions on costs within 21 days of the date of these orders and, if the parties consent, the Tribunal will then determine costs on the papers. The parties are to indicate in their submissions whether either of them seeks a hearing on costs.

Orders

1. The Tribunal makes the following orders: 1. The decision of the Medical Council of New South Wales under appeal is set aside subject to the imposition of conditions as follows: 1. The practitioner shall: (a) practise only in a public health service approved by the Medical Council of NSW ('the Council'); (b) obtain the approval of the Council prior to changing the nature and/or place of his practice. 2. 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. 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); (b) authorise the Council to provide the practitioner's proposed and approved supervisors with a copy of the decision which imposed this condition; (c) meet with the approved supervisor on a weekly basis for not less than one hour; (d) discuss and review with the supervisor: i. the management of boundaries; ii. the management of work related stress; iii. the management of clinical material. (e) Authorise the approved supervisor to forward reports to the Council on a monthly basis; (f) not practise until a supervisor has been approved by the Council. 4. 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). 5. The practitioner shall: (a) 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; (b) the practitioner shall authorise the Council to provide proposed and approved mentors with a copy of the decision which imposed this condition. (c) at each meeting request the mentor to include discussion of his personal and/or medical practice issues as they arise from time to time. (d) 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. 6. The practitioner shall: (a) 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; (b) 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; (c) 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. 7. The practitioner shall not: (a) prescribe for self-medication (b) subject to (9) self-administer: i. any Schedule 8 drug; 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. 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: (a) urine drug screening 3 times a week; and (b) quarterly hair drug screening. 11. To attend for a review by a Council Appointed Psychiatrist on a six monthly basis or as otherwise directed by the Medical Council of NSW. 12. To attend a Medical Council of NSW's Review Interview on a six monthly basis, or as otherwise directed by the Council. 13. The practitioner shall: (a) attend for treatment by a general practitioner of his choice at a frequency determined by the treating general practitioner. (b) 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). (c) must provide the Council with the professional details of the treating practitioner. 14. The practitioner shall: (a) attend for treatment by a psychiatrist of his choice at a frequency to be determined by the treating psychiatrist. (b) To 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). (c) Must provide the Council with the professional details of the treating practitioner. 15. To 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: a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: i. Failure to attend for treatment; ii. Termination of treatment; or iii. A significant change in health status (including a significant temporary change). b) Must provide the Council with the professional details of the treating practitioner. c) To authorise the Medical Council of NSW to provide the treating practitioner with a copy of the decision which imposed this condition. 16. The practitioner shall continue to take any medication prescribed by his treating practitioners. 17. 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. 18. 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. Each party is to pay its own costs of these proceedings, unless within 21 days of publication of this decision, an application is made by either party for a different order; 1. Costs are reserved. The parties are to file and serve written submissions on the issue of costs within 21 days of the date of publication of these orders. The Tribunal will then consider the issue of costs on the papers, provided each party consents, and the submissions are to state whether either party requires a hearing on costs.

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: 08 February 2021