Tan v Medical Council of New South Wales

NCAT Occupational|2022-08-08|Before: Ms J

Introduction

By application dated 27 April 2022 Chin Kuen Tan (Applicant) sought an order that his registration as a medical practitioner be reinstated pursuant to the provisions of the Health Care Practitioner Regulation National Law (NSW) (National Law). The grounds for the application stated: "It has been twelve month [sic] since the imposition of my deregistration. I am now ready to commence my medical career with proper and right attitude to service (to) public in need, especially during current Covid outbreak. I file to contribute meaningfully to society and help people."
The Medical Council of New South Wales (Respondent) resisted the Applicant's application.
The application was heard by the Tribunal on 8 and 9 August 2022. The Tribunal is unable to grant the Applicant's application. These are our reasons for that decision.

Documents before the Tribunal

The Respondent produced a Hearing Book which contained the material upon which it relied, and the material filed by the Applicant. Tabs 10 to 19 of the Hearing Book produced by the Respondent became Exhibit A1 in the proceedings. Exhibit A1 comprised the Applicant's statement in support of his application (Tab 10), the Applicant's Curriculum Vitae (Tab 11), various International Business Management Institute certificates (Tab 12), various Infection Control certificates (Tab 13), Collecting Blood Specimens certificate (Tab 14), TAFE NSW Certificate III in Pathology Collection (Tab 15), Responsible Supply of Alcohol (RSAT) Knowledge Test certificate (Tab 16), a reference from Mr Dully Sayed dated 30 May 2022 (p133) (Tab 17), a reference from Dr Hung Nguyen (Tab 18) and Urine Drug Analysis Results dated 8 June 2022 (Tab 19).

Background

On 6 December 2016, the Tribunal cancelled the Applicant's registration (Health Care Complaints Commission v Tan [2016] NSWCATOD 147) (2016 Decision). The Tribunal has uncontroversially had regard to the reasons for the 2016 Decision. The background to the current application emerges from the reasons for the 2016 Decision.
The background to the proceedings is not controversial. The Applicant was born on 13 June 1968. The Applicant graduated with a Bachelor of Medicine and Surgery from the University of New South Wales in 1996. After completing his residency at Gosford Hospital, the Applicant worked in the Accident and Emergency Department.
In 2009/2010 the Applicant undertook a number of training courses in Australia and overseas, especially South Korea. During visits to South Korea the Applicant observed various cosmetic procedures being performed during surgery.
After working at a cosmetic clinic in Penrith in 2010-2011, in 2012, the Applicant established a cosmetic surgery clinic in Fairfield (the Clinic) and thereafter practised exclusively in cosmetic surgery, performing various procedures, including "injections for dermafillers and Botox, sculptra, chemical peels, microdermabrasion, thread lifts of the face, eyelid tucks and liposuction".
Subsequent to commencing practice, the Applicant developed a substance dependence. In 2014 the Applicant was found unconscious at the Clinic and was taken to Liverpool Hospital. The Applicant subsequently admitted to using Pethidine, Propofol and Midazolam in the months leading up to that incident.
After the Applicant's admission to Liverpool Hospital on 7 July 2014, the Medical Council received a notification that the Applicant had been using drugs and suffered from a drug addiction, as a result of which, the Respondent convened a hearing under s 150 of the National Law on 25 August 2014. The delegates of the Medical Council decided after that hearing to suspend the Applicant's registration, and referred the matter as a complaint to the Health Care Complaints Commission (HCCC) pursuant to s 150D of the National Law.
On 11 September 2014 the HCCC received a complaint from a patient of the Applicant, Patient A, concerning the Applicant's performance of cosmetic nose surgery on her in February 2014, which caused a deformity to Patient A's nose. Patient A complained that the Applicant attempted corrective surgery in March 2014 which was unsuccessful.
In July 2015 the Applicant was assessed by Dr Robert Fisher, Psychiatrist, who concluded that the Applicant had developed an Adjustment Disorder with Depressed and Anxious Mood, which was in remission, and thus suffered an impairment within the meaning of the National Law.
On 9 March 2016 the HCCC commenced disciplinary proceedings in the Tribunal against the Applicant. The unchallenged findings made in the 2016 Decision inform the present application, and need to be reiterated in some detail.
The findings in the 2016 Decision referred to admissions by the Applicant that: 1. he inappropriately self-administered Propofol, Pethidine and Midazolam Alphapharm on numerous occasions between September 2013 and June 2014, obtaining those drugs from the Clinic's medication supplies, and administering them on or during the evening before days on which the Applicant operated on or consulted with patients; 2. with respect to the use of Pethidine and Midazolam, the Applicant's conduct breached clause 12 of the Drug Misuse and Trafficking Act 1985 and the Poisons and Therapeutic Goods Regulation 2008 respectively; 3. the Applicant's conduct was contrary to ethical standards; 4. the Respondent failed to keep a drug register at the Clinic from October 2012 to the end of 2014, contrary to clause 111 of the Poisons and Therapeutic Goods Regulation 2008; 5. on or about 4 July 2014 while performing a neck liposuction operation on a patient the Applicant self-administered Propofol (1-2ml); 6. on or about 20 November 2013 and 16 June 2014 the Applicant wrote prescriptions for Pethidine in the name of two patients, knowing that the Pethidine was for his own use. This amounted to false representations to a pharmacist to obtain the drug, contrary to the Drug Misuse and Trafficking Act 1985; 7. the Applicant provided false information to the Medical Council during the hearing on 25 August 2014 being: 1. that he started self-administering drugs from the Clinic only about 3 months prior to the hearing, when he actually started around March 2013; and 2. that he self-administered Pethidine from the Clinic only once or twice, when in fact the Applicant administered the substance on a significantly greater number of occasions; and 3. on 13 February 2015 the Applicant falsely informed the HCCC's investigators that he had supplied Pethidine to two patients (when in fact those persons were not his patients at the time but were staff members) and the prescriptions were for his own use.
The Tribunal found [43] that the conduct of the Applicant involved self-abuse, breach of relevant laws, and the active misleading of investigative bodies thus constituting unsatisfactory professional conduct [44].
The Tribunal accepted that, at the time of the hearing, the Applicant's disorder was "under control" [97] but concluded [101] that it did not "think the point has been reached in this case where it can be confidently concluded that the state of impairment has ended".
The Tribunal found with respect to the Applicant's treating of Patient A that: 1. during consultations with Patient A, the Applicant failed to provide adequate information and failed to explain the risks associated with her procedure. The Applicant failed to inform Patient A that swelling to her nose would get worse in the second and third post-operative weeks, that it could take up to two months for the swelling to resolve, and that it could take up to four months for the final aesthetic result. The Applicant admitted with respect to the first surgery on Patient A that he had exercised poor clinical judgement in proceeding when he did not have sufficient knowledge, training, skill or experience to undertake the surgery, and had not adequately discussed with Patient A referral to a more experienced surgeon. The Tribunal found that the Applicant failed to inform Patient A about the possibility of referral to a more experienced surgeon [61-65]; 2. the Applicant did not suggest to Patient A that she see a more senior specialist (with respect to the second procedure, or that the second procedure was more complicated than the first) [69]; 3. the Applicant exercised poor clinical judgement and care concerning the second surgery, in that he did not have the required expertise to undertake the surgery. The Applicant recommended that the surgery proceed prior to Patient A's nasal swelling settling and healing after the first surgery, and did not inform Patient A about the possibility of a referral to a more experienced rhino plastic surgeon to do the work. The Applicant failed to provide adequate post-operative care to Patient A, specifically by not reviewing her post-operative recovery either early (on days 1 and 2) or regularly thereafter (approximately days 7, 21 and 30) and that, other than on 27 March 2014, did not adequately assess Patient A to review any primary or secondary bleeding, assess swelling, infection and general health [68]; 4. the Applicant allowed another practitioner (Practitioner B) to perform the second procedure when Practitioner B was not registered as a medical practitioner with the relevant authority in Australia. The Applicant also knowingly provided false information to the HCCC on 29 May 2015 when he stated that he had performed the second procedure. Prior to the second surgery, the Applicant misled Patient A into believing that he would be performing the surgery, and misled her after the second surgery by informing her that he had performed the surgery.
The Tribunal was thus comfortably satisfied (77) that a finding of unsatisfactory professional conduct was warranted.
The Applicant was also recorded [78]-[80] as having admitted that: 1. from 4 October 2013 to 20 May 2014 he failed to keep adequate clinical records of Patient A's treatment and care, the Applicant's records lacking sufficient information about Patient A's history, his examinations and care provided, and the clinical opinions and advice given to Patient A; 2. the Applicant failed to include adequate particulars of medical treatment performed on Patient A on 13 March 2014, including the name of all persons who gave treatment, and the type of anaesthetic, if any, given to the patient; 3. the Applicant failed to maintain a level of detail in Patient A's clinical record appropriate to her case and to medical practice, All of these failings (20a to 20c) amount to breaches of regulatory requirements.
The Tribunal was satisfied that unprofessional conduct had been established.
The Tribunal concluded that the Applicant was unfit to practise medicine and that his registration should be cancelled. The matters upon which that decision was based were, in substance: 1. the Applicant's admitted breaches of professional standards were very serious. Although the Applicant belatedly recognised the gravity of his conduct, he did not communicate frankly and honestly on all matters in the earlier stages of their investigation, with the Medical Council, or the HCCC and, in evidence at the hearing before the Tribunal gave a different version of some matters and made further admissions [109]; 2. the Applicant's administration of drugs to staff members, Patients A and B, was a very serious dereliction of responsibility. The introduction of Practitioner B involved irresponsibility as the practitioner did not hold Australian registration, and the Applicant misled Patient A as to the role of Practitioner B in the theatre on the day of the operation [110]; 3. the Tribunal had little confidence at that stage that the Applicant had a mature and well developed understanding of his ethical and professional obligations around matters such as full disclosure of implications of treatment, especially cosmetic treatment with its special significance for the sense of self-confidence and enjoyment of life of patients and that there was little evidence that the Applicant recognised the need to improve his ethical understandings [111]; 4. the Tribunal had little confidence from the review of the certificates presented by the Applicant that he did much more than attend courses and participate, there being little evidence of rigorous testing or supervised engagement in typical procedures done in cosmetic surgery practices [112]; 5. the Tribunal viewed dimly the drug relapse that occurred around January 2015, and the Applicant's engagement in a practice event at the Clinic around that time whilst suspended [113]; 6. the Tribunal considered that the Respondent could not reasonably be regarded as a person fit to practice but that a non-review period of twelve months was appropriate, noting that, on any reapplication, the Applicant may have to address recency of practice concerns" [116]; 7. the Tribunal accepted that there was some risk that the Respondent may behave without integrity in the future in his dealings with people seeking cosmetic assistance, although he had begun to recognise the wrongfulness of his past conduct and was engaged in the early stages of a rehabilitation programme. The Tribunal was not satisfied on the limited material before it that there was any substantial risk to the health of members of the public such that the Applicant's opportunity to work outside the practice of medicine should be restricted.

The hearing

The Applicant has represented himself throughout these proceedings. To the extent that the Tribunal had any concerns that the Applicant may thereby have been unfairly disadvantaged, the course of the hearing, and the written and oral evidence which the Tribunal received satisfy us that the Applicant understood the legal and factual issues which were relevant to his application, and has been afforded procedural fairness throughout the proceedings.
The Tribunal explained to the Applicant the potential ramifications of his election not to require witnesses relied upon by the Respondent for cross-examination, most significantly of whom was Dr Anthony Samuels and, albeit to a lesser degree, Dr Lisa Juckes. In the light of the Applicant's evidence, it is difficult to imagine how cross-examination of Dr Samuels or Dr Juckes could have enhanced the Applicant's prospects of success. Cross-examination of the latter may well have been unhelpful for the Applicant.
Ultimately, the cross-examination of the Applicant places the Tribunal in a position to determine his application without needing to resolve disputed issues of material fact by reference to credibility. This is ultimately a case in which the findings of primary fact are essentially conceded, or not seriously in doubt, the issue then being whether, based on those facts the Applicant discharges the onus which he bears.

Principles governing the application

Although the Applicant did not identify the jurisdictional basis of his application, it is not in doubt that, pursuant to s 163A of the National Law the Applicant has standing to bring his reinstatement application. Section 163A of the National Law relevantly provides that: "(1) A person may apply to the appropriate review body for a review of: (a) a prohibition order made in relation to the person; or (b) a relevant order made in relation to the person."
It is not in doubt that the Tribunal is an appropriate review body (s 138(1) and s 163(1)(c) National Law) for the purpose of s 163A, or that the 2016 Decision was a relevant order pursuant to s 163A(4)(b) of the National Law.
Section 163B of the National Law is concerned with "powers on review (NSW)" and relevantly provides: "(1) The appropriate review body must conduct an enquiry into an application for review and may then do any of the following - (a) dismiss the application; … (c) make a reinstatement order;" … (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time."
When exercising the powers conferred by s 163B of the National Law, the Tribunal must, in accordance with s3A of the National Law give paramount consideration to "the protection of the health and safety of the public". The scope of the power conferred by s 163B is constrained by the objects and purposes of the National Law (Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at 23) which, pursuant to s 3 of the National Law, include the protection of the public and the provision of health services in a competent and ethical manner.
Section 163C(1) of the National Law makes clear that the evaluative determination required is of the "appropriateness, at the time of the review, of the order concerned", and (S 163(2)) does not involve reviewing the 2016 Decision, or any findings made in connection with it.
The Tribunal is obliged, pursuant to s 163C(3) of the National Law to take into account "any complaint made or notified to the Council or a national board, or former board under a repealed Act". The Tribunal has set out earlier in these reasons in some detail the findings of the Tribunal which resulted in the cancellation of the Applicant's registration in 2016. For all practical purposes, those findings provide the "starting point" for evaluation of the present application.
In its outline of submissions, which were provided to the Applicant prior to the hearing, the Respondent, helpfully and accurately in our view, summarised the principles governing the present application. At the conclusion of the proceedings on 8 August 2022, the Tribunal encouraged the Applicant to have regard to the summary of principles at (34) to (49) of the Respondent's outline, and to the submissions made by the Respondent at (50)-(65) when preparing his submissions for 9 August 2022.
In Qasim v Medical Council of New South Wales [2021] NSWCA 173 the Court of Appeal said the Tribunal: 1. "must have regard to the objectives and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, the paramount consideration being the protection of the health and safety of the public" [17]; 2. "The position of an applicant for reinstatement is disadvantaged by reason that presumptions of fitness, which might otherwise arise from an absence of contrary suggestion, do not operate for the benefit of an applicant who has been deregistered on the basis of unfitness. An applicant for reinstatement bears the onus of demonstrating that he or she can be trusted to practice in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession" [18]; and 3. "Thus the essential task of an applicant for reinstatement is to show that he or she is no longer unfit" [19].
In the circumstances of the present application, having regard to the findings of the Tribunal in 2016, the Applicant needs to demonstrate, accepting and notwithstanding the findings of the Tribunal in 2016, that he now has sufficient insight into his previous behaviour and character flaws so that he is truly reformed and fit and proper to undertake the practice of medicine Assar v Medical Council of New South Wales [2019] NSWCATOD 132.
Matters relevant to the exercise of jurisdiction pursuant to s 163B of the National Law are (Baez v Medical Council of NSW [2020] NSWCATOD 127; Safi v Medical Council of New South Wales [2022] NSWCATOD 30): 1. the purpose of the jurisdiction is to protect the public, not to punish the applicant; 2. the paramount consideration is the protection of the health and safety of the public (s 3A National Law); 3. regard must be had to the objectives and guiding principles of s 3 of the National Law which include the protection of the public by ensuring that only practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)), clinical competence not being the only consideration in determining whether a person is appropriate to practice medicine, matters such as trust, confidence, confidentiality and right conduct also being relevant, the public needing to be protected from those who may have appropriate skills but lack the character for the opportunities and privileges which the right to practice medicine confers; 4. to practise as a health practitioner a person must be fit and proper for general registration and be able to practise the profession competently and safely (s 55(1)(h)). Determining those matters requires the Tribunal to be satisfied that the Applicant is worthy and reliable, inferences from past conduct being permissibly drawn, particularly past conduct which led to removal from the register; 5. clear proof is required that there has been a reformation of character, an applicant being in a more disadvantageous position than an original applicant, there being no presumption of fitness because the applicant's name was removed from the register on the basis of unfitness; 6. reformation of character and behaviour can occur but such occurrences are not usual or to be assumed, particularly not merely because some years have passed and nothing of a discreditable nature has been proved to have occurred in the interim. A person who has exhibited serious deficiencies in his or her standards of conduct and attitudes must provide clear proof to show that some years later that has changed; 7. confession with respect to past misconduct is not a precondition to reinstatement however, continuing to vigorously challenge clearly established guilt may be indicative of continuing unfitness; 8. it is not a question of what the applicant has suffered in the past, but one of his worthiness and reliability for the future; 9. there is no public interest in denying forever the chance of redemption and rehabilitation to a former practitioner, but the public is better served if, in appropriate cases, once they have affirmatively proved that they are reformed, are afforded a second chance; 10. the standard of proof is the civil standard on the balance of probabilities to the level of satisfaction identified in Briginshaw v Briginshaw [1938] 60 CLR 336; Vito Zepinec v Health Care Complaints Commission [2020] NSWSC 13.
In Australian Broadcasting Tribunal v Bond ("Bond Media Case") [1990] HCA 33; (1990) 170 CLR 321 at [380] Mason CJ said: "The question whether a person is fit and proper is one of value judgement. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration."
In the same case, Toohey and Gaudron JJ said at [36] that: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, Basten JA said at [51]: "To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practise medicine, one must consider: (a) whether the misconduct can be satisfactorily explained as an error of judgement rather than a defect of character; (b) the intrinsic seriousness of the misconduct qua fitness to practise medicine; (c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character; (d) the motivation which may have given rise to the proven episode of misconduct; (e) the underlying qualities of character shown by previous and other misconduct; and (f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner."
In Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279, Kitto J said at [4] that: "Conduct may show a defect of character incompatible with membership of a self-respecting profession."
The Applicant bears the onus of proving that his registration should be reinstated. In Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116 at [53] the Tribunal said that "Because the nature of the jurisdiction, as set out in s 3(2)(a) and s 3A of the National Law is protective of the public, the Tribunal must be satisfied to a high level of probability that the applicant is "fit and proper" to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence" and that "In summary, the onus an applicant bears in a review application is a high onus".
In Vo v Medical Council of New South Wales [2018] NSWCATOD 18 the Tribunal recorded: "As is reflected in the general principles developed by the courts, a finer judgement is required in relation to an applicant for re-entry than the one required by a registration authority in relation to a new entrant." [15] And "The issue will be whether he or she can be trusted to practice in future with integrity, not to present any appreciable risk of repeating the misconduct that gave rise to the cancellation, to practice in an ethical manner and not abuse the trust or safety of patients."

Applicant's Case

The Applicant relied upon the statement filed by him (A1 Tab 10), in which, after recounting past events, substantially in accordance with the findings made by the Tribunal in 2016, the Applicant stated that he had (8) "continued to visit Dr Juckes regularly from 2014 to 2020 for my mental health issue, divorce issue and my drug addiction and recovery". Dr Juckes is a Consultant Psychiatrist. Although not literally untrue, or necessarily intended to mislead the Tribunal, that statement was less than accurate, and invited an inference to be drawn which was unjustifiably favourable to the Applicant.
The Applicant further stated (9) that he "started attending AA and NA meetings while I was at Wesley Rehabilitation and post-discharge. I continued to attend the meetings regularly 3 to 4 times per week in 2014 and 2016 as part of my recovery programme, voluntarily".
The Applicant stated (10) that he had also "started to attend Doctor Recovery Group from 2014 until now, intermittently and regularly. I attended less frequently from 2016 to 2020 due to my commitment to my children, work and study".
Whilst there is no reason to doubt those statements, the Applicant has not presented any documentation from any Doctor Recovery Group evidencing his attendance or its frequency. We accept that the confidential nature of the activities or instruction which the Applicant may have received as a result of his attendance, makes it likely that any information relevant to such attendance would not be available, or readily available.
The Applicant stated (12) that in 2016 he was divorced and "awarded with interim custody of my two older children" and that he "became fulltime carer. With family support, I managed to stay sober until today". The Applicant stated (13) that in 2017 he had enrolled to study a law degree part-time at the University of Western Sydney Parramatta Campus as he was "looking at possible second career option".
The Applicant referred (14) to his admission to the Burns Unit of Concord Hospital in August 2018 "suffering 50% third degree burns from accidental house fire. I was admitted for 3 months and underwent approximately 10 skin grafts with prolonged rehabilitation and chronic pain treatment" and that (15) "Upon discharge from Concord Hospital, I continued my outpatient pain management and disability consultation from 2018 to 2019".
The Applicant stated (16) that he "decided to defer my law degree study due to a lack of funding, and poor mobility secondary to extensive scarring". The Applicant stated (17) that in December 2018 to December 2019 he worked fulltime as an Operations Manager for Dr Hung Nguyen in his Skinnotion cosmetic clinic at Camden, which was a "non-clinical role focusing mainly on sale, marketing, and social media strategy".
The Applicant stated that he had worked as an Uber delivery driver from January 2019 to June 2020. From June 2020 to July 2021 he worked fulltime as an Operations Manager for Mr Dulli Sayed at BareWolf Men's Aesthetic Clinic at Fairfield Heights (19).
The Applicant stated that in July 2021 (20) he had attained Certificate III in Pathology Collection at Granville TAFE whereafter he secured employment at 4Cyte Pathology as a PCR (Covid collector) working 60 hours a week, principally from the Campsie premises of 4Cyte Pathology (21). The Applicant stated (22) that he is still employed as a Covid collector for 4Cyte Pathology, as well as doing casual Uber driving during his time off (23).
The Applicant said (24) that he regularly consults Dr Jenny Hoang, a General Practitioner at Chester Hill Medical Clinic, who has "referred me to a new addiction psychiatrist Dr Mike Atherson (sic) at Waverly due to the reason Dr Lisa Juckes is no longer available" (25). In oral evidence the Applicant confirmed that he has not seen and will not be seeing Dr Atherton. Other than clinical notes which do not advance the Applicant's case, the Tribunal has no evidence from Dr Hoang.
The Applicant stated (27) that Dr Hung Nguyen was "happy to supervise and mentor me at his clinics if I am allowed to work as medical practitioner".
Under the heading "My intention and plan" the Applicant stated: "1 I have no intention or desire to practice any cosmetic surgery or to perform operation. 2 I want to focus on non-surgical treatments such as cosmetic injections. 3 Dr Hung Nguyen is happy to provide me supervision and mentorship in his clinic either as GP or as injector. 4 I will attend any programmes and training to upskill my medical knowledge and skill. 5 I am open to any suggestion put forward by Medical Board as to the nature and scope of my medical practice. 6 I am happy to comply with Board recommendation and imposed restrictions. 7 I am happy to work in public hospital, medical centre or non-cosmetic sectors in medical field. 8 I am also willing to comply with any suggestion, measures and directions as recommended by Medical Board."
The Applicant concluded by stating he was "happy to provide any evidence and documents to support my sobriety and to prove I am a fit and proper person to become a responsible medical practitioner".
The Applicant also relied upon a reference from Mr Sayed dated 30 May 2022 (A1, Tab 17). Mr Sayed confirmed that the Applicant had been employed by his BareWolf Men's Aesthetic Clinic between June 20 and July 21 as an Operations Manager and detailed the nature of the Applicant's duties. It is not in doubt, and not suggested by the Applicant, that his employment at BareWolf in any way maintained or enhanced his skills as a medical practitioner.
Mr Sayed confirmed that he was "fully aware" of the Applicant's "past medical misconduct and misfortune" and had been impressed by his "resilience and positive attitude in life". Mr Sayed stated that the Applicant "has excellent communication skills. In addition, he is extremely organised, reliable and responsible. Mr Tan can work independently and is able to follow through to ensure that the job gets done. He is flexible and willing to work on any project that is assigned to him".
Mr Sayed added that the Applicant was "extremely critical when [it] come[s] to professional code of conduct". Mr Sayed confirmed that "with his medical knowledge" the Applicant was "able to implement Covid safe policy to ensure safety of staffs [sic] and customers in workplace." Mr Sayed was not required for cross-examination on his reference. With no disrespect to Mr Sayed, whose reference was confined to appropriate comments, his evidence does not materially advance the Applicant's case. There is no doubt that the Applicant encountered significant personal setbacks before and after the 2016 Decision, and has made considerable and successful efforts to rehabilitate himself in recent years.
Dr Hung Nguyen, who is the Director of Skinnotion Cosmetic Clinic and Nexus Health Care Group, provided a statement, dated 1 June 2022, inadvertently erroneously dated 1 June 2020. Dr Nguyen stated that he had known the Applicant for "over 10 years" having first met him at a cosmetic conference in Sydney and thereafter becoming good friends, and enrolling in similar cosmetic training courses and supporting each other "in learning and (the) quest to achieve highest and excellent scholastic accompaniments".
Dr Nguyen referred to the Applicant having "gone through rehabilitation and support programmes to help him after his deregistration in 2016 due to his professional misconduct". Dr Nguyen stated that he had been "witnessing his recovery and I am impressed with his resilience and determination to stay sober despite all the struggles i.e. recent divorce, financial difficulty, house fire and etc." Dr Nguyen confirmed that the Applicant had been employed at his clinic as an Operational Manager "to assist in business operation focusing on sale, marketing and social media campaign", working in a non-clinical capacity from December 2018 to December 2019 at Dr Nguyen's Camden clinic.
Dr Nguyen referred to the Applicant's "communication and interpersonal skills" and stated that he was "happy to become his mentor and supervisor if he is permitted by Medical Board to resume his medical career". Dr Nguyen was required for cross-examination.

Respondent's case

The Respondent particularly relied upon three reports from Dr Anthony Samuels, a Consultant Psychiatrist, dated 7 June 2022, 5 July 2022 and 21 July 2022.
In his final report, (R1 Tab 23) Dr Samuels identified material to which he had been referred subsequent to the publication of his earlier reports. That material comprised: 1. the diagnosis provided by Dr Juckes; 2. the Applicant's admission to Banks House in 2020; and 3. the recent Urine Drug Analysis provided by the Applicant.
As is not in doubt, Dr Samuels was not aware of that material prior to the preparation of his third report. Each of those documents was put into evidence. It is convenient to now refer to that evidence before referring to Dr Samuels' final report.
The Tribunal has reports from Dr Juckes (R1 Tab 26) dated 17 July 2017, 19 April 2019 and 31 May 2022.
Dr Juckes' report of 17 July 2017 was addressed to Dr Lana Kossoff and recorded that the Applicant "wishes to have an independent psychiatric assessment for medicolegal purposes - he is currently involved in Family Law Court proceedings against his ex-wife". Dr Juckes recorded that the Applicant came under her care in September 2014 "during an inpatient admission to the Wesley Hospital Ashfield alcohol and other drug treatment programme" and that he had a "history of propofol, opiate and benzodiazepine use disorder (he was deemed impaired when suspended from practice) but has been abstinent for over 2 years".
Dr Juckes concluded her report by stating that the Applicant "tells me he feels he is coping well and does not really need ongoing treatment or counselling, although he knows he can see me, and/or a psychologist he consulted in the past".
In her report of 18 April 2019, addressed to "Dr Frank Nguyen, referring General Practitioner", Dr Juckes recorded that the Applicant had "recently represented to see me and required treatment for recurrence of major depressive symptoms. He has had significant improvement from the combination of antidepressant (Mirtazapine) and mood stabiliser (Olanzapine) with improvement in depression and related sleep problems". Dr Juckes further recorded that the Applicant "continues to have some sleep disturbance related to Post-traumatic Stress disorder incurred with other physical injuries in a life threatening house fire in September 2018" and that "further CBT based psychological treatment may provide further benefit from that already seen".
Dr Juckes stated that the Applicant: "meets criteria for a diagnosis of Narcissistic Personality Disorder, which warrants treatment with a specialist psychotherapist with a psychodynamic psychotherapy, if Mr Tan is willing to engage in such therapy. Now that the depression is better ameliorated, it is the main ongoing mental health issue of concern and factor leading to interpersonal difficulties for Mr Tan."
Dr Juckes referred to other physical conditions of the Applicant which are not relevant for present purposes, and concluded her report by saying "I wish Mr Tan success in his further recovery ahead of him".
In her statement of 31 May 2022 (A1 Tab 26 p525) Dr Juckes stated that she last saw the Applicant in consultation on 27 November 2020 when he re-presented, "although we had concluded our therapeutic relationship in April, 2019". Dr Juckes stated that she had: "made the following psychiatric diagnoses (since meeting Mr Tan (then Dr Tan) as an inpatient at Wesley Hospital in 2014: substance abuse disorder: propofol, opiate benzodiazepine, polysubstance use disorders, nicotine dependence (self reportedly abstinent in 2019 and 2020) major depressive disorder - recurrent features of Post-Traumatic Stress Disorder narcissistic personality disorder."
Dr Juckes recorded a number of aspects of the Applicant's medical history which do not assume significance for present purposes. At the bottom of the page the words appear "Mr Chin Tan DO NOT BOOK (13/06/1969) 2489975429-1". Who put that information on the report, and what it is intended to convey is unclear. We draw no inferences from those words.
Dr Juckes was not required for cross-examination.
The evidence with respect to the Applicant's admission to Banks House at Bankstown-Lidcombe Hospital in May 2020 (R1 Tab 25 p355-366) is a Discharge Summary prepared on 29 May 2020, apparently by Dr John Ribes (Trainee Specialist). The Applicant was discharged on 25 May 2020. The document records that the Applicant was admitted to Banks House on 20 May 2020. The "medical service" recorded with respect to his admission was "psychiatry".
The summary of the care provided to the Applicant whilst he was in Banks House recorded: "Background: - scheduled by police as son concerned about overdose - found him drowsy after an argument - complex prior history including polysubstance abuse leading to his de registering as a medical practitioner - agitated, irritable, minimising and intense in ED on review - admitted to Banks House under MHA for a period of further observation of mental state"
The Discharge Summary recorded: "Recounted that he had an argument with his son in the early hours of the morning because he is playing too many computer games and not focusing on his school studies. Made threat "If I collapse again don't call the ambulance" (has peptic ulcer disease and has collapsed due to anaemia in the past). States that he took 30 milligrams Temazepam to get back to sleep, denies any intention to overdose or harm himself. Denies any suicidal ideation or self-harm in the past. States that his son might have been worried because of the argument but unsure exactly why he was so worried about him harming himself. Reports that he was very drowsy when ambulance arrived and slightly confused. States that he was worried about being scheduled and decided to minimise everything and not be forthcoming with doctors."
Under the heading "Progress on the ward" it was recorded that "no pervasive mood disturbance or psychotic phenomena" was noted, that the Applicant was "positive and future focused to return home and continue his studies at TAFE". The Applicant's hopes for the future, including "to get his medical registration back" were noted, as was the Applicant having "reconciled with his son over the phone yesterday and they have both apologised". The note also recorded "collateral from son was that Chin was back at baseline and he was happy for his father to return home. Nil medication changes were made and he was discharged with community follow up".
Under the heading "Impression" the Discharge Summary recorded: "51 year old deregistered medical practitioner with history of prescription drug abuse and currently experiencing multiple significant psychosocial stressors (loss of employment, financial strain, marriage failure and breakdown of relationship with children, severe burns possibly self-inflected) who presents following suspected drug overdose in context of argument with son. Not objectively psychotic or pervasively depressed and nil suicidal ideation, although guarded of mental state and minimising significantly. Underlying cluster B personality vulnerabilities and ongoing substance abuse issues likely interplaying in presentation. He has been observed on the ward for several days without any concerns and according to collateral mental state appears at baseline. He remains a chronic potential of harm to self and of misadventure given stressors, personality construct, possible ongoing substance use issues and reluctance to engage openly with mental health services, however ongoing admission is unlikely to modify these factors. In keeping with least restrictive care he no longer meets criteria for MHA and must be discharged from hospital for ongoing community follow up."
The "discharge plan" included "follow up with GP for ongoing care" and "referral to CoMHET for MH follow up in community".
The Urine Drug Analysis provided by the Applicant (A1 Tab 19) recorded a positive result for cannabis in June 2022.
Under the heading "Admission to Banks House in 2020" Dr Samuels recorded (R1 Tab 23 paragraph 13, p241, paragraph 16, p242) that the Applicant informed him that, after his discharge from Concord Hospital, Dr Juckes "increased his antidepressant but Mr Tan said in around 2018 he stopped taking the antidepressant because of his Uber driving and fear of being sedated whilst driving. He thought he was functioning reasonably well."
Dr Samuels recorded (14) the Applicant as saying that a "stressful period" preceded his admission to Banks House, and that on the night of his admission he had "a big argument with his son, and took a sleeping pill". Dr Samuels recorded the Applicant as saying that "for some reason his son became worried and called the ambulance. Mr Tan was quite sedated when the ambulance arrived and they took him to hospital. When he woke up he spoke to the mental health team and they said that, for safety, they would observe him for a few days. He said he was in hospital for 2-3 days and discharged without any follow up".
Dr Samuels recorded the Applicant as stating that he was "very angry" when he was detained at Banks House and felt that there was "a misunderstanding". Dr Samuels further recorded the Applicant as stating that his "ex-wife had raised concerns that he had deliberately set the house fire, and he said this was why he lost access to his youngest child", and that "his son had these same concerns and seemed to share them with the ambulance. He feels this is why he was detained in hospital" (15).
Dr Samuels recorded (16) having "questioned Mr Tan about the fire again" and referred to the Applicant stating that "the final report from the police and fire brigade did not find evidence of a deliberately lit fire, there was some discussion about a faulty wire". No part of the current application involves any findings or inferences adverse to the Applicant with respect to the circumstances in which the house fire occurred.
Under the heading "Mental health treatment" Dr Samuels recorded (17-19) that the Applicant told him that he "last saw Dr Juckes in 2020" and had seen her "about once a year from around 2017". Dr Samuels recorded, accurately, that Dr Juckes last saw the Applicant on 27 November 2020, and prior to that in April 2019. Dr Samuels did not appear to suggest, and we do not find, that the Applicant misled him, or intended to mislead him, about his contact with Dr Juckes.
Dr Samuels stated (18) having discussed with the Applicant Dr Juckes' opinion that he had a narcissistic personality disorder, and recorded the Applicant as having "said that had occurred", and adding "she saw me at a time I was vulnerable, sick, addicted to drugs, all that sadness and depression. I said something, she picked things up at the time and came to that conclusion. She had every right to that opinion".
Dr Samuels recorded (19) that he had asked the Applicant whether "he thought that perhaps the reason Dr Juckes thought he had narcissistic traits was the way he had treated his patients with a lack of empathy and allowed an unregistered doctor to operate on them", to which the Applicant is quoted as replying "I'm not proud, I question what I've done, I must have been under the influence of drugs to let an unregistered doctor look after my patients. Now I can't believe I did that but of course I did. I don't like to think about it. You call yourself a medical practitioner and put vulnerable patients at risk". Dr Samuels recorded the Applicant as stressing that he was "very remorseful about what occurred".
Under the heading "The positive cannabis test" (20-22) Dr Samuels recorded the Applicant's explanation, which was that "before the test he went to a friend's house party" which he described as a "testosterone filled event", involving "peer pressure". The Applicant was recorded as stating that "somebody offered him some marijuana and said, 'you need to relax, just take it'" and that the Applicant "did this somewhat impulsively, he did not think it was a big issue at the time". Dr Samuels quoted the Applicant as saying that it was "just an innocent thing, the results came out then I realised it was silly to do that". Dr Samuels recorded the Applicant as saying that it was the first time he had ever used marijuana and that "I shouldn't associate with those influencers, I should just focus on my work" (20).
Dr Samuels recorded (21) the Applicant as stating that he was not currently using benzodiazepines or any analgesics, nor using marijuana or other illicit drugs. Dr Samuels further recorded (22) that the Applicant reiterated that, at the time, he did not think that using marijuana would be "an issue".
Under the heading "Opinion" Dr Samuels considered the diagnosis provided by Dr Juckes. Dr Samuels had reviewed the clinical records of Dr Juckes from 17 July 2017 to 5 November 2020 and the clinical records of Mr Gross from 28 October 2014 to 26 December 2017. Dr Samuels' opinion was that "It is clear that Mr Chin Kuen Tan has significant narcissistic and borderline personality traits" and that he did "think that Mr Tan is now more insightful about the issues that brought him to the attention of the Council and that he is genuinely remorseful about the unethical behaviours that led to his deregistration". We do not interpret those comments as Dr Samuels doubting that the Applicant was "genuinely remorseful" about his prior unethical conduct. We do not understand the Respondent to dispute either of Dr Samuels' statements.
Dr Samuels was (23(ii)) "not certain" that the Applicant's admission to Banks House "resulted from an act of deliberate self-harm but it does seem likely that he was misusing benzodiazepines at that time".
With respect to the recent urine drug analysis provided by Mr Tan, Dr Samuels recorded (23(iii)) that the Applicant was "actually quite frank that in the fortnight before the test he had smoked marijuana at a friend's party" but recorded that "given his past history, I am not absolutely convinced that this was his only exposure to illicit substances like marijuana". Dr Samuels added that the Applicant "claimed some awareness that he is someone who is at risk of 'addiction'" and that "the fact that he was not able to decline the marijuana despite his own fallibility and the fact that he chose to use this substance when he was under scrutiny in relation to his application for reinstatement, indicates that he has an ongoing propensity for very poor judgement".
Under the heading "Your further assessment of Mr Tan" Dr Samuels recorded (27) his opinion based on "all of the materials provided" that the Applicant "does have an impairment within the meaning of the National Law, including personality dysfunction and a Substance Use Disorder which has recently involved use of marijuana and in July 2020 involved the misuse of temazepam".
Dr Samuels was further of the opinion (28) that the Applicant met the DSM 5 criteria for a "cluster B personality disorder with some narcissistic personality features including being interpersonally exploitative and lacking empathy, as well as some borderline features characterised by unstable interpersonal relationships, impulsivity, recurrent suicidal behaviour, gestures or threats, affective instability, and some difficulty controlling anger".
Dr Samuels concluded (30) that the Applicant's psychological and physical conditions "have the potential to impact upon his professional functioning". Dr Samuels summarised his opinion in the following terms (31): "I do have concerns that these impairments may affect his capacity to practice medicine, in regard to his ability to cooperate with health regulatory authorities and to comply with conditions. Mr Tan appears genuinely remorseful about the events that have occurred in the past. He has undoubtedly made extensive efforts to rehabilitate himself. The failure to provide critical information to me in the initial assessment and the positive urine test for marijuana reinforces these concerns. He will certainly need to engage in further insightful orientated psychological therapy to better understand these issues and prevent the repetition of dysfunctional behaviours."
The Applicant confirmed that, other than Dr Samuels' concern about his "ability to cooperate with health regulatory authorities and to comply with conditions", he agreed with the opinions recorded by Dr Samuels, but disputed that his failure to provide "critical information" and the "positive drug test for marijuana" supported those opinions.
Dr Samuels recorded (32) a number of safeguards which he considered to be necessary if the Applicant were permitted to return to medical practice. They provided: 1. there would need to be very clear guidelines in regard to what procedures he would be allowed to perform; 2. he would need to be supervised by a senior clinician who was well aware of his background; 3. he would need to engage with a psychiatrist and a psychologist on a regular basis, as well as a general practitioner; 4. he should be under the care of a Drug and Alcohol specialist and ideally he should attend the Doctors Health Advisory Group (sic) and/or Alcoholics Anonymous; 5. he should not self-prescribe medication; 6. his current drug restrictions should remain in place; 7. he should be subjected to regular urine drug testing as well as quarterly drug hair testing; 8. he should be regularly reviewed by a Council appointed psychiatrist; and 9. he would also need to be under the care of a cardiologist for appropriate monitoring and treatment.
We do not understand the Applicant to suggest that, if he is to be permitted to resume practice, doing so should not be subject to each of the conditions suggested by Dr Samuels.
Dr Samuels was not required for cross-examination. The Tribunal endeavoured to explain carefully to the Applicant that, if he failed to cross-examine Dr Samuels with respect to any matter stated by Dr Samuels which he disputed, persuading the Tribunal to reject Dr Samuels' evidence about those matters would be problematic. With respect to the Applicant, it is unlikely that cross-examination by him would have caused the Tribunal to reject Dr Samuels' expert opinion evidence. As will be seen, the documentary evidence, and cross-examination of the Applicant provided ample factual underpinning for the opinions expressed by Dr Samuels (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705). Nothing to which the Tribunal has been referred, or discerned for itself, suggests that Dr Samuels' evidence was vitiated by any absence of expertise or experience or the application of each of those qualities.

Cross-examination of the Applicant

The Applicant was closely and carefully, but sensitively cross-examined. Under cross-examination the Applicant was courteous, essentially responsive to questions asked of him, both by Counsel for the Respondent and members of the Tribunal, and, to a commendable extent, given that the Applicant "wore two hats", being a party and his own counsel. Ultimately the determination of this application turns on concerns which arise from evidence given by the Applicant, and the absence of evidence from the Applicant or anyone else of matters which, the authorities to which we have earlier referred, confirm are relevant to the Tribunal's evaluation of the Applicant's application.
In cross-examination the Applicant stated that his son had asked him to apply for reregistration in March or April of this year. Although that may have been the catalyst for the Applicant making the present application, we do not find that to have been the Applicant's sole or dominant motivation to do so. We accept that the Applicant has a genuine desire to resume the practice of medicine and is genuine in his stated desire to be able to make a contribution to society as a medical practitioner. As is not in doubt, the fate of the present application turns on matters other than the motivation of the Applicant. The absence of malign findings in that regard does not adversely affect the prospects of the Applicant succeeding with his application, but does not enhance those prospects either.
The Applicant confirmed that he had not re-read, or turned his mind to the findings of the Tribunal in 2016, having, until recent years, been preoccupied by the other issues in his personal life which have been recorded earlier and, in more recent times, being, in substance, "too busy" in his employment to be able to do so. It is regrettable that the Applicant did not, well before making the present application, carefully consider and follow the "road map" which the Tribunal provided to him in 2016. With respect to the Applicant, we infer that his priority in the years following his deregistration in 2016 was on his health and family issues, and then recovering from injuries sustained in the 2018 fire, and that taking steps which might result in his reregistration was not a priority for the Applicant. On his own evidence, however, by 2020 those potentially cogent reasons for not taking effective steps to optimise his prospects of being reregistered as a medical practitioner had dissolved or at least become less compelling.
The Applicant was cross-examined with respect to his failure to mention the diagnosis of narcissistic personality disorder by Dr Juckes in his early consultations with Dr Samuels. The Applicant effectively acknowledged that he thought that the diagnosis would be "not good" for his application, and accordingly had decided not to "put it forward". It is concerning, particularly in view of the 2016 findings with respect to the Applicant's capacity or willingness to engage openly with regulatory authorities, that he did not see fit to tell Dr Samuels about his history with and diagnosis by Dr Juckes.
The Applicant was correct that Dr Juckes' diagnosis was potentially unhelpful to his case, but, in circumstances where the Applicant knew, or should have known from his previous experience, that candour and honesty were important issues in these proceedings, it is disappointing that he did not openly disclose to Dr Samuels the opinions of Dr Juckes.
With respect to the Applicant, he was guarded about his dealings with Dr Juckes. The Applicant was unable to suggest why his therapeutic relationship with Dr Juckes ended in April 2019. We do not speculate about that, or need to. The evidence is, however, that, since April 2019, the Applicant has not had regular psychiatric treatment , psychotherapy or psychological counselling from any expert. That is particularly concerning given the statement by Dr Juckes in her report of 18 April 2019 that her diagnosis of narcissistic personality disorder warranted "treatment with a specialist psychotherapist with a psychodynamic psychotherapy, if Mr Tan was willing to engage in such therapy" and that "now that the depression is better ameliorated, it is the main ongoing mental health issue of concern and factor leading to interpersonal difficulties for Mr Tan".
To the extent that the Applicant offers any explanation for not having undertaken any of the treatment which Dr Juckes considered necessary, any purported explanation was unconvincing. So was the evidence of the Applicant with respect to his asserted difficulty in commencing a therapeutic relationship of the kind suggested by Dr Juckes, or otherwise. It is tolerably clear that it was only after Dr Hoang advised him to do so, after he had commenced the present application, that the Applicant directed his mind to following Dr Juckes' recommendation. Unfortunately for him, the Applicant is thus left not having done the things which Dr Juckes clearly suggested were warranted and, by reason of his inaction, his absence of attempts, or effective attempts to do so, raises real concerns about his willingness to engage in such therapy. It will be remembered that Dr Samuels considered the Applicant doing so was an essential "safeguard" if the Applicant were to be permitted to return to practice.
In the absence of the Applicant having had appropriate therapeutic treatment for a period which now approaches three and a half years, the matters emerging from the report of Dr Juckes of 31 May 2022 cause concern. The Applicant's suggestion, after being closely cross-examined with respect to Dr Juckes' opinions and their implications, that he did not think them relevant to the current application suggest limited insight into his own psychological needs, and the significance of providing convincing safeguards with respect to them if he is to be permitted to resume medical practice.
The Applicant's evidence with respect to his admission to Banks House in May 2020 also provides little comfort for the Tribunal with respect to his fitness to resume medical practice. The Tribunal struggles to accept, given the Applicant's history of disciplinary proceedings and the reasons for the decision of the Tribunal in 2016, that he did not bring his Banks House admission to the attention of Dr Samuels. The contents of the Banks House Discharge Summary, the Applicant's failure to disclose the admission to Dr Samuels and the Applicant's evidence in cross-examination about those matters raise concerns with respect to his candour and ability to recognise personal difficulties which he contends are well in the past.
The Applicant's evidence with respect to the reasons for his admission to Banks House was less than convincing, as was his suggestion that he was "innocent at the time". The Applicant conceded that his son believed that he had taken an overdose and had thought that the Applicant had "tried to kill himself" but, surprisingly in view of that evidence, suggested that his son was not concerned about his having had a drug overdose. It is difficult to accept that the Applicant would not have appreciated the importance of bringing to Dr Samuels' notice the Banks House admission. The Tribunal is ultimately not persuaded that the Applicant has been entirely candid about the Banks House admission.
The cross-examination of the Applicant with respect to the circumstances in which he consumed marijuana earlier this year provided little basis for confidence that there could not be a recurrence of such behaviour. The circumstances in which the Applicant used marijuana remain vague. The "peer pressure" to which the Applicant submitted he succumbed was not identified. Nor does the Tribunal have any indication from the Applicant as to whether, and if so in what circumstances, the Applicant continues to see the people in whose presence, and he asserts under whose influence, he used marijuana. It is difficult to accept that the Applicant would not have been acutely aware of the need, in the lead up to the hearing of his reinstatement application, to do nothing which could possibly jeopardise his chances of reinstatement. As with the matters to which we have previously referred, in addition to the concerns which the events cause, by not "coming clean", the Applicant has given the Tribunal cause to be less than convinced that he has been candid with us.
The Applicant said in the course of cross-examination that he was "not one hundred per cent fit in every sense", or words to that effect, and recognised that everything he does will now be under intense scrutiny. The Applicant agreed that, by virtue of other events in his life, to which we have earlier referred, it is only in the last two years that he has been really prepared to address past issues, and look to his personal improvement.
Although, as Dr Samuels recognised, the Applicant has taken significant and "commendable" steps towards rehabilitating his life, the aspect of his life which most needed assistance, and the acceptance of the need for such assistance, has not been addressed by the Applicant in a clinical context since he last saw Dr Juckes in April 2019. As recorded earlier, Dr Juckes clearly stated what the Applicant needed to do. The Applicant's failure to obtain, or, on his evidence before the Tribunal, seriously attempt to obtain the therapy which Dr Juckes considered that he needed, which Dr Samuels considered that he continues to need, is concerning.
Although the Applicant was an essentially credible witness, his explanation for not mentioning to Dr Samuels the marijuana incident, the Banks House admission, or Dr Juckes' diagnosis of him bordered on disingenuous. The Applicant suggested that Dr Samuels had not asked him about such matters and that, if he had, he would have been open and honest with him. The Applicant was adamant that he had not tried to hide anything from Dr Samuels, given his earlier admission that he knew that Dr Juckes' diagnosis of him was "not good" for his case, and his experience in the 2016 proceedings. Only by accepting that the Applicant lacks insight into his own health, his obligation to regulatory authorities and to the Tribunal could a benign view of his non-disclosures be taken. We do not need to speculate about those matters, the reality being that the Applicant should have known that these matters were relevant to his application and disclosed them.
The Applicant was cross-examined with respect to his attempts to maintain competence in the practice of medicine since 2016. It is now 8 years since the Applicant last practiced medicine. Although the applicant has taken steps to improve his skills in areas unrelated to the practice of medicine, he has not done, or attempted to do, anything in the nature of continuing medical education. When asked whether, after having not practiced for 8 years, he might be somewhat "rusty", the Applicant initially suggested, sequentially, that he had not attempted to maintain his professional skills because most courses were only available for registered doctors, that he did not have time to do the courses, that the only time he could do them was on weekends and that has only become possible in recent times, that he could not afford to pay for the courses, and, ultimately, and truthfully, that it was "not my priority to invest in that at the moment".
There is no evidence of an absence of courses which, although unregistered, the Applicant could have undertaken, or that any such courses involved the payment of significant fees. The Applicant acknowledged that he had not done any research with a view to undertaking courses which would have enhanced his professional competence. Given that the Tribunal in 2016 raised this issue, quite apart from the time which has passed since the Applicant practiced medicine, or has undertaken any continuing medical education, it is surprising that he did not realise what should have been readily apparent in any event in the light of the 2016 Tribunal Decision.
Why the Applicant terminated his therapeutic relationship with Dr Juckes has not been explained. We draw no inference adverse to the Applicant with respect to that. For the Applicant, the unavoidable reality is that a Psychiatrist who had treated him for the previous 5 years clearly recommended what the Applicant should do upon the termination of her therapeutic relationship with him, the Applicant has not done those things, and has inadequately explained why he has not done so.
Whilst there is no reason to doubt the Applicant's evidence that he attends the Doctors in Recovery Group fortnightly, in the absence of any evidence from that organisation as to what his attendances entail, it is difficult to make findings or draw inferences helpful to the Applicant in reliance upon his doing so.
When asked about strategies to avoid a recurrence of his former difficulties, the Applicant stated that he takes "one day at a time". When asked about any relapse prevention plan, the Applicant stated that he keeps very busy working 8 to 10 hours per day, that he has a good supporting network with whom he shares insights and stories, although he is "isolated" in some ways and "keeps himself busy". The Applicant reiterated that he has no specific relapse plan.
The Applicant's evidence in response to an invitation to a question from the Tribunal as to why the Tribunal should be confident that he was "strong enough" to avoid a relapse, the Applicant offered assurances, which we accept were genuine, the difficulty being that they are, with respect to the Applicant, no more than expressions of hope which are speculative in view of the evidence to which we have referred.
Nothing emerging from the cross-examination of the Applicant suggests that he is not genuinely remorseful about his past misconduct, or he that will not try his hardest to avoid a repetition of such misconduct. Conversely, nothing emerging from the evidence before the Tribunal or the cross-examination of the Applicant suggests that, other than continuing to attend the Doctors in Recovery Group meetings, the Applicant proposes to do anything to address the issues which Dr Juckes diagnosed in April 2019 for which he has not sought any of the treatment which Dr Juckes clearly identified that he needed to seek. That failure is the more significant given that the Applicant sensibly does not suggest that he did not need to undergo the therapeutic treatment which Dr Juckes identified and recommended.

Cross-examination of Dr Nguyen

Dr Nguyen was cross-examined. Dr Nguyen was candid in the evidence he gave, albeit that candour resulted in his evidence ultimately being unhelpful to the Applicant in a number of respects.
Shortly before he was cross-examined, the Respondent supplied Dr Nguyen with the reasons for the Tribunal decision in 2016. Dr Nguyen confirmed that he heard "on the news" about the Applicant's deregistration in 2016. Until his cross-examination, Dr Nguyen had no knowledge of the Applicant's recent use of marijuana. It is reasonably clear from his answers, if not expressly so stated, that had Dr Nguyen known of the Applicant's recent positive cannabis test, he would not have offered to be the Applicant's supervisor. In evidence Dr Nguyen suggested that the recreational use of marijuana by the Applicant was a "serious thing" which caused him "serious concern" and suggested that the Applicant was vulnerable to a relapse. Dr Nguyen said words to the effect that he would have to "think twice" about being the Applicant's supervisor.
Ultimately, we do not need to find that Dr Nguyen would not continue to be the Applicant's supervisor on any basis in view of the Applicant's recent use of marijuana. In cross-examination about the possibility of the Applicant coming to his practice and working under his supervision, Dr Nguyen stated that, in putting that proposal, he had assumed that the Applicant had passed exams and satisfied the requirements of competence to practise medicine. Dr Nguyen was unaware that, for 8 years, the Applicant has not undertaken any continuing medical education. It is apparent that, in view of the Applicant's absence of any medical training for 8 years, or demonstrated competence to practice medicine, that Dr Nguyen's proposal was based on an assumption which has not been fulfilled.

Submissions of the parties

In submissions the Applicant essentially reiterated the matters set out in his statement and his willingness to accept all of the conditions which Dr Samuels suggested to be necessary if he were to be reregistered. The Applicant asserted that he had developed sufficient insight into his prior conduct and the previous flaws in his character, that he would continue to seek to comply with conditions and attend upon psychologists and others and act on advice received from them.
The Applicant submitted that the last few years demonstrated, particularly through his work history, that he is a "reformed person who is stable under supervision". The Applicant reiterated his reliance upon Dr Nguyen's support. As we have noted, although we do not doubt that Dr Nguyen would provide moral support for the Applicant if his registration was restored, Dr Nguyen's evidence does not enable us to find that he would either employ the Applicant or act as his sponsor, in view of what he now knows about the Applicant's recent use of marijuana, and the fact that the assumptions he made with respect to the currency of the Applicant's qualifications were erroneous.
The Applicant stressed that he was unlikely to do again what brought him into difficulties in 2014 as the "social stresses" were no longer there, he was no longer in a "dysfunctional relationship", that he has good family support and is "happy in his work and private life".
With no disrespect to Counsel for the Respondent, who carefully took the Tribunal through his oral submissions, we need not repeat the great bulk of those submissions. The written submissions made prior to the oral evidence in these proceedings necessarily anticipated to a significant extent what the oral evidence would reveal. Each of those assumptions has found ample underpinning in the oral evidence to which we have referred. The touchstone of the Respondent's case was that there was "a lot more to do" before the Applicant could successfully reapply for registration as a medical practitioner. The matters to which we have referred in the course of reviewing the evidence of the Applicant in cross-examination support that contention.

Consideration

We have earlier recorded the principles which govern the present application. The paramount consideration is the health and safety of the public. Unless the Applicant could be reregistered as a medical practitioner with conditions which adequately protected the health and safety of the public, the Tribunal could not grant the present application. As the authorities, and the statutory provisions make clear, the fact that a former medical practitioner has made genuine and serious endeavours to rehabilitate himself does not advance an application for reregistration, it simply removes some impediments to an applicant successfully seeking to be reregistered.
Dr Samuels' "concerns" provide a convenient starting point for our evaluation of the present application. We accept that the "impairments" which Dr Samuels identified in his reports, and particularly in his final report, may affect the Applicant's capacity to practice medicine. That is particularly so given that the evidence before the Tribunal does not establish that the Applicant has the ability to cooperate with health regulatory authorities, or to comply with conditions. The Applicant might have that ability, but the evidence does not persuade us to the requisite standard that he does. In time, provided that he continues with his rehabilitation, and pursues more diligently the competence to practise medicine, the Applicant may acquire that ability, but his application has to be determined on the evidence as it is now.
As we have earlier recorded, we accept, as Dr Samuels did, that the Applicant is genuinely remorseful about the events that have occurred in the past and has made extensive efforts to rehabilitate himself. As we have also recorded, we accept that the Applicant has a genuine desire to return to the practice of medicine and to make a contribution to the health of the community. We agree with Dr Samuels that the failure to provide "critical information" to him supports the concerns which he expressed. As the evidence makes clear, the failure is not just with respect to the positive urine test for marijuana, but extends to the Banks House admission in 2020 and to disclosure of the diagnosis of Dr Juckes. It is relevant with respect to the Banks House admission that, on the Applicant's evidence, that occurred after the "social stressors" which had plagued his life in earlier years had dissolved or abated.
Dr Samuels' opinion that the Applicant would "certainly need to engage in further insight oriented psychological therapy to better understand these issues and prevent the repetition of dysfunctional behaviours" provides the focus for our evaluation that we consider to be a critical aspect of this application. The evidence to which we have referred does not enable us to find that the Applicant accepts the need to engage in any further psychological therapy, or that, if he does, the Applicant has the capacity to do so on a sustained continuing basis. We base that finding on the demonstrated absence of any genuine, serious or sustained effort to obtain such therapy for a period which now approaches three and a half years, notwithstanding the clear indication from Dr Juckes, who by that time had treated the Applicant for five years, that he needed to do so.
Given that we do not accept that the Applicant has the requisite insight, it is axiomatic that we cannot find that the Applicant would commit to and persist with psychological therapy of any kind. Our inability to make that finding gives rise to a significant, and unacceptable risk to the health and safety of the public if the Applicant were to be reregistered as a medical practitioner.
With respect to the Applicant, his stated willingness to comply with any conditions of that kind has to be measured against his failure to follow clear recommendations from a psychiatrist who he trusted for such a long time. The Tribunal cannot be confident that, absent the most stringent policing of any regime of conditions with respect to ongoing psychological therapy, the Applicant would comply with such conditions.
So far as the nine "safeguards" which Dr Samuels identified as being necessary if the Applicant were permitted to return to medical practice, we find as follows:

"32(i) There would need to be very clear guidelines in regard to what procedures he would be allowed to perform"

In view of the evidence before the Tribunal, it is difficult to suggest what procedures the Applicant would be allowed to perform. It is clear beyond doubt from the findings of the Tribunal in 2016, and the absence of any evidence to suggest that permitting the Applicant to practice in those areas would not continue to constitute an unacceptable risk to the health and safety of the public, just what "procedures", if any, the Applicant should be allowed to perform. It is relevant in that context that the Applicant last performed any procedures (albeit with very unfortunate outcomes for his patient) eight years ago, since which the Applicant has undergone no continuing or other medical training.

"(ii) he would need to be supervised by a senior clinician who is well aware of his background"

The evidence of Dr Nguyen, who impressed as a witness of truth, means that the Applicant could not comply with this safeguard. The evidence of Dr Nguyen is instructive in this regard. Dr Samuels' safeguard involved two elements, supervision by a senior clinician who was "well aware of his background". As the cross-examination of Dr Nguyen clearly demonstrated, until his appearance in the witness box, the Applicant had, deliberately or otherwise, failed to make Dr Nguyen aware of significant aspects of his background, much less well aware. It is not difficult to imagine that, given what Dr Nguyen now knows, and the Tribunal knows, finding a senior clinician who would be willing to supervise the Applicant would be problematic. We do not need to speculate about that. The evidence does not establish to the requisite standard that the Applicant could comply with this condition.

"32(iii) he would need to engage with a psychiatrist and a psychologist on a regular basis, as well as a general practitioner"

The Applicant engages with a general practitioner, albeit that necessarily is with respect to his medical or general health. There is no basis for finding that the Applicant would engage with a psychiatrist and a psychologist on a regular or other basis.

"32(iv) he should be the under the care of a drug and alcohol specialist and ideally he should attend the Doctors Health Advisory Group (sic) and/or Alcoholics Anonymous"

There is no evidence that the Applicant would do any of those things or, that if he did attend, that he would continue to do so.

"32(v) he should not self-prescribe medication"

The evidence before us does not permit us to make a finding that, if that were a condition of his registration, the Applicant would be incapable of complying with it.

"32(vi) his current drug restrictions should remain in place"

The Applicant does not suggest that this should not happen and there is no evidence suggesting that the Applicant's current drug restriction would not remain in place.

"32(vii) he should be subjected to regular urine drug testing as well as quarterly drug hair testing"

The Applicant may submit to such regime of testing, but, his recent use of marijuana, failure to disclose that to Dr Samuels, and quite unsatisfactory explanation of the circumstances in which that occurred, or why it could not or would not happen again provide little basis for confidence that such a condition would realistically safeguard the health and safety of the public.

"32(viii) he should be regularly reviewed by a Council appointed psychiatrist"

The Applicant is likely to present himself for such reviews. It is the efficacy of his doing so which is the real issue in this case. In view of the inability to make findings with respect to the Applicant's insight into, or acceptance of his need for ongoing psychiatric and psychological therapies, and demonstrated failure, for years, to make any attempt to secure such therapeutic treatment provide little basis for thinking that reviews by a psychiatrist appointed by the Council would be likely to result in assessments which differed materially from that of Dr Samuels.

"32(ix) he would also need to be under the care of a cardiologist for appropriate monitoring and treatments"

There is no evidence before the Tribunal that the Applicant would not comply with such a condition. As this is a medical rather than a psychiatric or psychological issue, we are satisfied that this is a condition with which the Applicant would be likely to comply.

Disposition

For the reasons we have recorded above, this application must be dismissed. To do otherwise involves an unacceptable risk to the health and safety of the public. Although we accept that, for some years after his deregistration in 2016, the Applicant had more pressing physical, psychological and personal needs, it is disappointing that, given the "road map" which the Tribunal helpfully provided to him in 2016, the Applicant has not done anything in the last two years to seek to mount a more viable application for reregistration. We are not persuaded that the Applicant could never successfully apply for reregistration, but agree that he has "a lot more to do" before that would be realistically likely. The Applicant genuinely wishes to, and potentially could make a contribution to the community as a medical practitioner, but, without substantial and sustained improvement in the areas we have identified, good intentions are not enough.
In view of the time which has passed since the Applicant last practised medicine, and the nature and extent of the matters in respect of which we have found his application wanting, it is hard to imagine that the Applicant could reapply for registration with any real prospect of success in the foreseeable future, even if, during that time, he made serious, sustained and successful efforts to address the shortcomings which the Tribunal identified in 2016, many of which we have found to remain, or have found to have been alleviated to only a limited, and insufficient extent. Although, not having been asked to, the Tribunal will not make an order pursuant to s 163B(5) of the National Law preventing the Applicant from applying to review our decision until after a specified time, the Applicant ought not interpret that absence as encouragement to reapply for reregistration before he has successfully addressed the issues which have led to the rejection of the present application, however long that takes.

Costs

We will invite submissions with respect to costs.

Orders 1. The Applicant's application for reregistration pursuant to s 163A(1)(b) of the Health Practitioner Regulation National Law (NSW) 2009 is dismissed. 2. A party making an application for costs file and serve written submissions in support of such application not exceeding seven (7) pages in length within fourteen (14) days of this date. 3. Any party resisting an application for costs file and serve written submissions not exceeding seven (7) pages in length within twenty one (21) days of this date. 4. A party opposing an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 dispensing with an oral hearing of any application for costs file and serve written submissions not exceeding two (2) pages in length in opposition to such order within twenty one (21) days of this date.

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: 16 September 2022

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (16)