HEALTH PRACTITIONER - MEDICAL PRACTITIONER - LICENCES AND REGISTRATION - where the Board took immediate action and imposed conditions on the registrant's registration - where the registrant was required to undertake a health assessment, urine drug testing and hair drug testing - where the health assessment found the registrant had an Opioid dependence and met the criteria for cannabis abuse - where the registrant failed to attend for some of the urine tests and provided dilute samples in others - where a hair test had positive results for codeine - where the Board took further immediate action to suspend the registrant's registration - where the registrant sought a review of the Board's decision to suspend her registration - whether the registrant poses a serious risk to public health and safety - whether registrant poses a serious risk to persons - whether immediate action is necessary to protect public health and safety

Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) ss 398D(1)(e), 398D(3), 398ZC

Health Practitioner Regulation National Law Act 2009 (Qld) s 9

Health Practitioner Regulation National Law (Queensland) ss 156, 157, 158(2)(c), 169, 199(1)(h)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1)

Attudawage v Medical Board of Australia (No. 2) [2011] QCAT 452, cited

Chaudhry v Medical Board of Australia [2013] QCAT 305, cited

I v Medical Board of Australia [2011] SAHPT 18, cited

Liddell v Medical Board of Australia [2013] WASAT 120, cited

Lindsay v NSW Medical Board (2008) NSWSCR 40, cited

Pearse v Medical Board of Australia [2013] QCAT 392, cited

Ms K McMillan QC, instructed by Rodgers Barnes & Green Lawyers

[1] WD is a medical practitioner in general practice in a rural area. WD works as a sole practitioner in a Medical Centre. The centre is owned by WD's partner.

[2] I have no doubt that WD is a dedicated, caring and compassionate doctor who has commendably chosen to practice medicine in a rural and remote area. She has many patients, including a large number amongst the local Indigenous population. She is, it seems, highly regarded by other medical practitioners, allied health workers and the broader community.

[3] On 23 August 2013 the Medical Board of Australia decided to take immediate action in relation to WD under s 156 of the Health Practitioner Regulation National Law (Queensland) (National Law). The immediate action taken by the Board was the suspension of WD's registration.

[4] The Board also decided to take the further action of referring the matter to the Queensland Civil and Administrative Tribunal. The Board has not yet referred any matter to the Tribunal, notwithstanding its decision to do so made some 13 weeks ago.

[5] On 4 October 2013 WD applied to the Tribunal to have the Board's immediate action decision reviewed. She also applied to have the decision stayed. An immediate action decision cannot be stayed by the Tribunal.[1] The Tribunal is, however, required to finalise the review as quickly as possible.[2]

[6] Although an immediate action decision is referred to as an "appellable decision",[3] it proceeds as a review of the decision as provided under the Queensland Civil and Administrative Tribunal Act 2009.[4] Such a review is to be conducted as a full de novo hearing on the material before the Tribunal; not that which was before the Board. It permits consideration of matters which have occurred since the time which the decision of the Board was taken.[5] The purpose of the review is to produce the correct and preferable decision.[6]

[7] In these proceedings, the Tribunal must determine whether it holds a reasonable belief that because of WD's conduct or health she poses a serious risk to persons, and that it is necessary to take immediate action in the form of the suspension of her registration to protect public health and safety.[7]

[8] In Pearse v Medical Board of Australia[8] the Tribunal cited with approval the observations of the South Australian Health Practitioners Tribunal in I v Medical Board of Australia,[9] the Supreme Court of New South Wales in Lindsay v NSW Medical Board[10] and the Western Australia State Administrative Tribunal in Liddell v Medical Board of Australia,[11] as to the proper approach to be taken by the Tribunal in determining the issues which arise in an immediate action matter. That approach may be summarised as follows:

1. an immediate action order does not entail a detailed enquiry;
2. it requires action on an urgent basis because of the need to protect public health and safety;
3. the taking of immediate action does not require proof of the conduct; but rather whether there is a reasonable belief that the registrant poses a serious risk;
4. an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;
5. the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk;
6. the material available should be carefully scrutinised in order to determine the weight to be attached to it;
7. a complaint that is trivial or misconceived on its face will clearly not be given weight;
8. the nature of the allegations will be highly relevant to the issue of whether the order is justified.

[9] In October 2001 a Health Assessment Committee established by the then Medical Board of Queensland met to assess whether WD was impaired. The Health Assessment Committee considered that WD met the criteria for opiate dependence which then appeared to be in remission. It considered that WD also met the criteria for cannabis abuse which it considered, then, was an ongoing diagnosis. The Committee was of the opinion that WD satisfied the definition of impairment as set out in the then Health Practitioners (Professional Standards) Act 1999, and recommended conditions be placed on her registration.

[10] On 22 January 2002 the Medical Board of Queensland placed conditions on her registration. The conditions imposed included a urine drug screening program. WD was compliant with that drug screening program from January 2002 to June 2005 at which time she was discharged from further compliance with it.

[11] Between July and August 2012 the Australian Health Practitioner Regulation Agency (AHPRA) received a number of notifications concerning WD. One notification, made on 14 August 2012, was from the Queensland Health Drugs of Dependence Unit. The involvement of the Drugs of Dependence Unit had come about as a consequence of the Unit having received a series of allegations from a registered nurse who worked in the practice where WD also worked.

[12] Officers from the Unit interviewed WD on 8 August 2012. During that interview WD is said to have admitted self-prescribing and self-administering morphine and pethidine on eight occasions. WD voluntarily surrendered her endorsement for controlled drugs.

[13] On 17 September 2012 AHPRA informed WD that it was proposing to take immediate action. The proposed action was the suspension of her registration. On 9 October 2012, after considering a submission made on WD's behalf, the Medical Board of Australia took immediate action. The action taken was not suspension, but the imposition of conditions on WD's registration. The conditions included that WD attend for urine drug screening in accordance with the Board's protocol, as required by the Board, and that she provide a specimen of hair for drug analysis, as required by the Board, and in accordance with the Board's protocol.

[14] By letter dated 24 October 2012[12] WD was advised that on 23 October 2012 the Health Committee of the then Queensland Board of the Medical Board of Australia had determined that the frequency of the urine drug screening would be 8-12 tests per month. This fell within Group 2 of the Board's testing protocol. She was also informed that the requirement for hair testing had been deferred until a health assessor's report had been considered. The requirement that WD attend for a health assessment was the further action which the Board decided to take under Part 8 of the National Law.[13]

[15] The health assessment was conducted by Dr David Storor, a consultant psychiatrist, on 24 October 2012. In his report dated 25 October 2012, [14] Dr Storor expressed the following conclusions:

WD meets criteria for Opioid Dependence. This diagnosis was established in the early 2000's following a period of self-prescribing of Panadeine Forte for migraine headaches by WD. This resulted in her registration being subject to undertakings to the then Medical Board of Queensland. With monitoring and treatment by her Psychiatrist, Dr FK, she achieved an extended period of abstinence from Opioids. By WD's report, her regular use of prescription Opioids recommenced in 2010 as a result of her suffering low back pain. Initially her Opioid Analgesic was prescribed by her General Practitioner. The amount of Opioids increased over a period of a year or so. The first reported misuse of Opioids by WD occurred in January 2012 when she "self-administered" Morphine taken from the practice emergency drug supply. By her report, there were several other instances over the following four or five months where she self-administered Morphine obtained from the practice. Despite WD's past history and the escalation and misuse of Opioids, WD at no time sought help for her problem believing that she would be able to deal with it herself. She reports taking herself off all Opioids approximately three months ago, though I note she has subsequently been given Morphine for pain believed to be renal colic on one recent occasion. WD describes experiencing symptoms of Opioid withdrawal when she ceased Opioids in July of this year. This clinical picture is consistent with Opioid Dependence given the history of reinstatement of opioid use after a period of abstinence and subsequent escalation of use and increasing tolerance followed by withdrawal symptoms upon cessation.

WD attributes the development of this condition to chronic low back pain in addition to the stress of establishing and running a solo General Practice. It a concern (sic) that WD believes that she is able to manage her Opioid Dependence problem herself in the future and is resistant to the imposition of conditions on her registration. She has made no arrangements for psychiatric or psychological care. This position is consistent with the overall minimisation of her problem and her denial of the seriousness of her misuse of Opioids which she expressed to me during the course of her interview with me. WD admits using Opioids for relief of stress as well as for treatment of back pain.

In addition, WD meets criteria for Cannabis Abuse. She describes regular intermittent use of Cannabis. She does not see this as being in conflict with her role as a Medical Practitioner. The urine drug screen gave a maximum positive result (++++).

In conclusion, in my opinion, WD is impaired as a result of her condition of Opioid Dependence. This is the second occasion in which she has developed a dependence on Opioids, secondary to a painful condition. Her self-administering of Parenteral Opioids are of serious concern and it is of concern that WD minimises the problem. WD's regular use of Cannabis is a further concern, particularly given she expresses no desire to cease taking the drug.

WD's history demonstrates that in many ways throughout her life, she has been a very capable woman, raising two children as a single mother and completing a medical degree and establishing a busy General Practice in a rural setting. Unfortunately, she has a pattern of not seeking help appropriately when she has difficulty dealing with stressors. Instead, she minimises and denies her problem. For this reason, I consider that her impairment due to the condition of Opioid Dependence is likely to detrimentally affect her capacity to practice her profession unless actions are taken in order to protect public safety.

[16] Dr Storor made a number of recommendations including that WD not practice medicine until she had received appropriate treatment from a psychiatrist and received a satisfactory report that her conditions of opioid dependence and cannabis use were in remission. Dr Storor also recommended that WD undertake urine drug screening, commencing in Group 2 of the Board's protocol, and that she undertake hair analysis at three monthly intervals at the request of the Board.

[17] The drug screening report which Dr Storor had considered was in respect of a sample collected on 24 October 2012.[15] That report stated that WD's sample was ++++ for cannabinoids. Dr Storor stated that the pathologist reported this as being consistent with cannabis use within the past two days or heavy chronic cannabis use.

[18] Dr Storor reported that WD had declined to undertake a hair drug test as she considered such an invasion of her human rights and an assault.[16]

[19] On 6 November 2012 the Immediate Action Committee of the then Queensland Board of the Medical Board of Australia proposed to take immediate action in relation to WD in the form of the suspension of her registration. That proposed action was based upon the 24 October 2012 drug test result and the report of Dr Storor of 25 October 2012.[17]

[20] As required by ss 156 and 157 of the National Law, WD was invited to make a submission on the proposed immediate action. She did so through her then solicitors on 12 November 2012.[18] In that submission her solicitors said of urine drug testing and hair testing:

The Board can be reassured by the urine drug screens that WD is not using opioids or cannabis. She is not using any non-prescribed medications. If her back pain were to again flare up, the necessary medical support to deal with that is in place. Steps have been taken by the involvement of Dr VV to deal with whatever long term issues of latent dependence or depression there may be and his involvement should also reassure the Board that there is a further medical support in place in case exacerbation of WD's pain (sic).

Firstly, there is no benefit to hair drug analysis in this case as it is principally used as a tool to detect past drug use for purposes such as employment screening. In this case past drug use is not denied. The relevant question is whether drug use is continuing and the appropriate test for that is urinalysis. In this case the Board knows WD has used morphine (and cannabis) because she has not denied that. In fact, as noted, on most occasions, she has actually recorded her use. When asked about drug use by Dr Storor she was honest about that. Furthermore, WD has not resisted urine drug screening and has been compliant with that program. The urinalysis has demonstrated itself capable of detecting drug use and declining levels of cannabinoids in WD's samples demonstrate the ability of urinalysis to detect the dissipation of cannabinoids after use of cannabis is stopped. The Board therefore has a reliable indicator of drug use which can be used to determine the timing of any drug ingestion and, to some extent, the amount ingested. Hair analysis is the wrong test for these circumstances. WD should not be required to undergo (or pay for) unnecessary and pointless sampling.

[21] That submission made on WD's behalf recognises the appropriateness of urine drug screening in the circumstances of WD's case.

[22] On 30 November 2012 the Immediate Action Committee of the then Queensland Board of Medical Board of Australia decided that the conditions imposed upon WD's registration were adequately addressing any risk to public safety, and that immediate action by way of the suspension of her registration was not warranted at that time.[19] The Committee's reasons for that decision included that WD had demonstrated through urine drug screen testing that she was addressing her opioid dependence impairment and cannabis use. The Committee also decided to require WD to undergo a hair drug test. On 5 December 2012 WD was informed that her registration would not be suspended but that she was required to undergo a hair drug test in accordance with the conditions imposed on her registration.[20]

[23] On 19 December 2012 WD's solicitors wrote to AHPRA providing, amongst other things, a statutory declaration from WD as to why she had missed a urine drug test on 30 November 2012.[21] WD's solicitors also addressed her refusal to undergo a hair drug test. They restated WD's strong objections to being required to submit to hair testing which she regarded as humiliating and degrading. The solicitors repeated their early submission that hair testing in WD's circumstances was an unnecessary imposition given, amongst other things, 'the obvious success of the urine testing regime in evidencing her abstinence from opiates and the decline and disappearance of the cannabinoid traces in her urine samples'.

[24] These submissions on behalf of WD, again, recognised the appropriateness of urine drug screening in the circumstances of WD.

[25] On 17 January 2013 AHPRA wrote to the solicitors for WD informing her that on 8 January 2013 the Board had again proposed to take immediate action to suspend her registration. That action was proposed because of her failure to comply with the condition of her registration requiring hair drug testing and that her then disclosed current health status indicated that she was likely to be prescribed opioids during treatment for her medical conditions. It was thus considered appropriate that she be restricted from returning to practice until such time as there was sufficient evidence that her then current health conditions would not impact upon her recovery from drug dependence.

[26] On 8 February 2013, WD's solicitors made a submission to AHPRA about the proposed suspension of WD's registration. Amongst other things, it was submitted on her behalf that she posed no risk to persons and that suspension was not necessary because WD had, due to her then medical conditions, voluntarily removed herself from practice.[22] An undertaking was offered by WD, as an alternative to suspension, that she would only work as a medical practitioner if her treating general practitioner, Dr SR, and psychiatrist, Dr VV, advised the Board that in their opinions she did not pose a serious risk to patients. She also offered an undertaking that at least 5 days prior to her intended return to clinical practice she would resume random urine drug screening.[23]

[27] The submissions, again, emphasized the efficacy of the urine drug testing regime and thus, impliedly, recognised its appropriateness in WD's circumstances.

[28] On 15 February 2013 the Immediate Action Committee resolved to suspend WD's registration.[24] However, that resolution was revoked on 12 March 2013[25] after the Immediate Action Committee considered a further submission made on WD's behalf dated 21 February 2013.[26] That submission contended that the suspension decision had been based upon incorrect information about what was said to have been missed urine tests, and tests where the samples had been diluted. In the submission WD's solicitors addressed each of the missed tests and diluted samples.

[29] On 12 June 2013 AHPRA issued WD a direction in accordance with the conditions of her registration to attend for a hair drug test before 28 June 2013.[27] The test was conducted on 24 June 2013, however, the report only became available on 8 August 2013.

[30] On 19 June 2013 WD's general practitioner, Dr SR, wrote an email to WD's solicitor.[28] The email was sent in response to the solicitor's request for an update on WD's health. At the suggestion of WD's solicitor, Dr SR's response was copied by her to Ms Julie Horton, a Senior Health and Performance Officer at AHPRA.

[31] Dr SR's response included:

On 7/5/13 she requested Codeine to suppress her cough. Codeine is a narcotic and is also used as a cough suppressant. I was not happy to prescribe this because it is not usually used in asthma, though she felt she had an element of croup.

On 8/5/13 she again requested Codeine as a cough suppressant and she was not able to get a rest from the cough. I said that I was prepared to give her a limited supply of the combination medication Panadeine Forte, which has both paracetamol and codeine in it, but she was quite upset at this proposal because of the ability of paracetamol to cause liver toxicity in the context of her hepatitis C. I said that I was not concerned about this because she has normal liver enzymes at present and there is no liver dysfunction at present. She refused this medication which was rather puzzling because it has the same amount of Codeine in it (30 mg) as the normal tablet size of codeine on its own. My reasons for offering this is that patients cannot abuse it to the same degree as they do develop paracetamol toxicity if more than the normal prescription dose is taken, so I saw it as a bit of a safeguard. The consultation ended quite tensely but her other treatment was continued.

A couple of days later on 10/5/13, I received a phone call from the medical Centre Dr ... (in a neighbouring town approximately 100 km away) where she had presented. I spoke with the doctor there has (sic) apparently she had given permission prior to being seen as a patient for them to talk to me. I gave a frank summation of the situation and the doctor was made aware of the history.

I understand that WD was subsequently admitted to ... the hospital for a couple of days and was treated, and that her treatment did include the use of some supervised codeine.

[32] On 9 July 2013 WD's urine tested positive for cannabinoids.[29] WD would offer an explanation for that positive result in a statutory declaration made on 15 July 2013.

[33] On 11 July 2013, in another statutory declaration,[30] WD responded to a request for an explanation for a urine specimen which she had given on 23 May 2013 being found to be dilute. She said that she had no knowledge that the specimen was dilute. She stated that she had assumed that she would be told if the creatinine test was abnormal in order to give her a further chance to test. This, she said, was an informal arrangement which she had entered into with the testers. As she had not been told on that occasion that the test was abnormal, she did not retest. She said that those arrangements with the testers had by then been formalised.

[34] In another statutory declaration made on 11 July 2013,[31] WD stated that she did not attend for a urine test on 18 June 2013 because she was too unwell with an exacerbation of asthma. She referred to having seen Dr SR on both 17 and 19 June and having kept in contact with her.

[35] On 12 June 2013 WD sent a detailed and lengthy email to Ms Horton at AHPRA in which she raised many issues. She also said that she had instructed her solicitor some three weeks earlier to ask for her to be excused from urine testing from 12 July to 24 July because she was participating in a car rally during that period. She stated that she assumed that she would need to test on 25 July.[32]

[36] On 12 July 2013, WD's solicitors did write to AHPRA informing that WD would be taking leave from her practice between 12 and 23 July to participate in the rally.[33] It was said that participation in the rally made urine drug screening impossible due to the remote locations and constant movement of the rally. Accordingly, the solicitors sought for WD to be excused from urine drug screen testing for that period. Only a short period of non participation was sought. It was submitted that excusing WD for a short period would not adversely affect the Board's monitoring of her.

[37] In the statutory declaration made by WD on 15 July 2013,[34] she provided as an explanation for her urine drug screening of 9 July 2013 being positive for cannabinoids that she had smoked a herbal product provided to her by her son through a water pipe, also supplied by her son, which was heavily contaminated with cannabis.

[38] She also used that statutory declaration to provide her reasons for not complying with urine drug testing until 25 July 2013. She referred to the impracticality of trying to test during the rally being a further source of stress to her, and the need for her to have a break from testing to protect her health.

[39] She also referred to having had rectal medical and surgical complications which meant that she could no longer tolerate urinating in front of strangers, it being hard enough doing so in front of those she did know.

[40] She said she would resume urine testing on 25 July.

[41] The sample of hair collected on 24 June 2013 returned a positive test for codeine. Each of the three 1 cm segments was found to contain codeine. The middle segment was found to contain 100 pg codeine per mg. Each of the other two segments was found to contain approximately 50 pg codeine per mg. Each of these 1 cm segments represented one month of growth of the hair. Thus a period of approximately three months is represented in the sample.

[42] I have set out this detailed history because it provides the context in which the Queensland Medical Interim Notification Group determined on 19 July 2013[35] to propose to take the immediate action of suspending WD's registration.

[43] It also provides a context in which to consider WD's contention in these proceedings that she is physically, psychologically and financially unable to comply with the urine and hair drug testing.[36]

[44] The hair drug test results became quite contentious in the review hearing. WD had only recently been provided with the results. She could not understand how each of the three segments could test positive for codeine when the only codeine she had ingested in the relevant three month period was through taking codeine linctus while an impatient in the Hospital for three days in May 2013.

[45] WD had made enquiries of Forensic Science South Australia, the testing laboratory which conducted the hair drug screen assay. She had received a report from a Kerryn Mason, the forensic scientist who performed the test.[37] In his report, dated 5 November 2013, Mr Mason stated that the correlation between drug dosage and hair concentrations is not exact and that hair concentrations are more indicative of a type of usage, for example occasional, chronic or abuse. He opined that the concentration of codeine present in WD's samples of 50 to 100 pg per mg, would be representative of occasional codeine use and not codeine abuse.

[46] WD required Dr Storor for cross examination. He had provided an updated report dated 31 October 2013 which was attached to the Board's written submissions. In that report, Dr Storor had said of the hair drug test results that the ingestion of codeine in the Hospital in May 2013 could account for the positive result in the middle segment, but that there was nothing in the history provided by WD which would explain the positive result in the other two segments.

[47] In his evidence before the Tribunal Dr Storor stated that the presence of codeine in each of the segments would indicate that codeine had been ingested for a period of at least four weeks being the period represented by the middle segment, plus at least a few days on either side of that period. He said that three days use of codeine linctus as an in patient in hospital could not explain the presence of codeine as found in the tests.

[48] This is of significance because although Mr Mason's report refers to codeine being an opioid medication used as a cough suppressant and analgesic agent, often co-formulated with other analgesics like paracetamol or ibroufen, and one which is used in typical cold and flu medications, WD provides no history in which such products may have been taken by her which might explain the extent of the positive drug test results in segments 1 and 3. Indeed she denies any such possible circumstances.

[49] Before the Tribunal she postulated, as I understood it, that the hair sample taken from her may have been shorter than the 4.5 cm reported to have been received by the pathology lab. It was suggested that it may have lengthened after it was taken, perhaps by binding with other hairs in the sample clump, so that the three 1 cm sections taken did not accurately reflect the three month period said to have been reported upon. I reject this thesis. There is no evidence in support of it.

[50] One is left with the conclusion that WD must have ingested codeine at times other than the admitted use of codeine linctus in the Hospital for three days.

[51] This, in my view, is indicative of the relapse in codeine use to which Dr Storor refers but which WD denies.

[52] I am also unpersuaded by WD's explanation for the positive cannabinoid test in July 2013. In the submissions made by her solicitors on her behalf in response to the notification of the proposed immediate action it was said that, rather than the explanation being disingenuous, as the Committee had considered it to be, it was so unusual as to 'ring true'. In my view, I am satisfied to the extent to which I need be in the hearing of an immediate action matter, that the more likely explanation is that the test result reflected an occasional use of cannabis by WD at that time. That finding is consistent with her attitude to her cannabis use which was evident in the hearing. As with the statements to Dr Storor, it was apparent in the hearing that WD saw nothing wrong with her cannabis use even though she had been abstinent. She did not consider it was inconsistent with, or inappropriate for, her practice of medicine. She did not consider it a source of potential impairment to her practice of medicine.

[53] These matters demonstrate a lack on insight on the part of WD. She does not see that there is even the potential for her to become impaired and thus a risk to her patients. She considers that her care for, and goodwill toward, her patients would ensure that this did not occur. This is so even through she did concede that there was a period in 2012, when using morphine, when she practiced in an impaired state.

[54] Her lack of insight is further demonstrated by her insistence that there can be no risk of relapse because the series of personal circumstances which confronted her in 2012 could never happen again. She said, for example, that her computer could not be hacked again; that her father-in-law could not die again; or that she would not go through a marriage again.

[55] Her focus on these particular, perhaps unrepeatable, events as being the cause of her previous relapse, rather than being indicative of a more general inability to cope with the insults and stressors of life, is concerning.

[56] It is also concerning that her partner, JP, the owner of the medical practice, shares this lack of insight. JP's sharing the belief that the particular circumstances could never again arise and that, therefore, WD is at no risk of relapse leaves one with a complete lack of confidence that her employer is alive to the potential of risk to the patients of the practice.

[57] One can only speculate as to whether JP would be so lacking in his appreciation of potential risk in any medical practitioner he may employ, other than his wife. When asked about this by the Tribunal, he seemed to struggle with the concept.

[58] WD's dedication to her patients, particularly in a remote area, is admirable. As I said at the outset of these reasons, I do not doubt it. It is quite evident from the large volume of statements in support of her which she has filed in these proceedings.

[59] However, WD's rhetorical question, posed during the hearing, of 'Isn't a doctor who poses a serious risk to patients better than no doctor at all?' further demonstrates her present lack of appreciation of the need to protect the public against potential unsafe practice.

[60] WD was highly critical of Dr SR's report. She is highly critical of the care she received from Dr SR. She questions why Dr SR's report should be given such weight when she considers her psychiatrist's report is given little weight.

[61] The criticism which WD now makes of Dr SR lacks rationality. Dr SR had been her general practitioner for some time. WD had previously been prepared to nominate Dr SR as one of the persons upon whose opinion her return to practice would depend. She had been content for Dr SR to share her report with AHPRA. The report was prepared for and requested by WD's own lawyers.

[62] In light of those matters, there is no reason for the Tribunal to doubt that Dr SR's report was other than a frank and accurate statement of her opinion; including that she was concerned by WD seeking codeine in May 2013.

[63] I am also unpersuaded by WD's contention that she is now physically and psychologically unable to participate in drug screening, including urine screening. I accept that her rectal problems have caused a level of bowel incontinence at times when providing a urine sample. However, there is no evidence of an inability to provide a sample, or that the samples provided have been contaminated.

[64] The staff who take the samples are professionals working in a pathology service. WD is an experienced medical professional. She had previously referred to the embarrassment associated with providing a sample in front of strangers, in the context of seeking to be excused from providing a sample during the rally. She had also referred to it being hard enough to do even with those that she knew. However, she never previously suggested she was incapable. In fact, the opposite was the only inference open. She always stated that she would return to urine testing on 25 July. There was never a suggestion that she could not. Nor did any of her statutory declarations explaining missed tests or diluted samples refer to the inability to provide a sample which she now advances.

[65] In my view, WD is able to provide urine samples for analysis. I am also of the view that she is able to provide samples of her hair for analysis. I do not doubt that she would prefer not to do so and considers it humiliating. I also accept that she may experience some discomfort in providing the hair sample. However, I remain of the view that she is able to comply with the requirement.

[66] In his updated report Dr Storor expressed the following opinion:

In summary, my opinion remains that WD is impaired as a result of her condition of Opioid Dependence and that this condition is likely to detrimentally affect her capacity to practice her profession. In my view, WD poses a serious risk to patients unless she receives appropriate treatment. The evidence available indicates that WD is currently not fit to practise. I recommend that WD be required to undertake a further Health Assessment to determine when WD might be fit to resume medical practice.

[67] The Tribunal accepts that opinion.

[68] In my view, because of WD's opioid dependence she poses a serious risk to persons. If WD was to misuse opioids the potential for her to practise medicine in an impaired state is real. The risk may manifest itself in harm to patients.

[69] The further question is whether immediate action by way of suspension is necessary to protect public health and safety. In my view it is.

[70] Drug dependence in a medical practitioner does not necessarily require the suspension of the doctor's right to practice. In the case of WD, reasonable and appropriate conditions were placed upon her registration which, if complied with, together with her abstinence, managed the risk which her impairment poses. The conditions were reasonable and appropriate because whilst it is the abstinence itself which renders the doctor safe to practice, the conditions requiring drug screen testing provide the evidence of such abstinence which facilitates the confidence that the risk is unlikely to manifest in harm to a patient.

[71] The conditions requiring testing also provide a deterrent to drug use. The likely detection of drug use through the testing promotes abstinence which ensures safety.

[72] The conditions requiring testing are also appropriate because if there is a relapse into drug use, its detection facilitates the taking of further protective action. That is what has occurred here.

[73] These very matters were expressly or impliedly recognised in each of the submissions made by her lawyers on her behalf.

[74] In my view, the risk posed by WD will not be sufficiently or appropriately managed without conditions requiring drug screening. I have come to that conclusion having considered all of the evidence, but particularly in light of the lack of insight displayed by WD to which I have referred. WD has steadfastly indicated that she is not prepared to return to compliance with the drug testing conditions. Whilst she is entitled, at a personal level, to refuse to be tested, at a professional level she is not entitled to practise medicine if not complying with the conditions imposed reasonably and appropriately upon her registration.

[75] WD's attempts to shift responsibility for the removal of her medical services from her patients from herself to the Board is entirely misplaced. It again emphasises that she lacks insight into her conduct. It is she who is responsible for her services being removed from her patients. It is she who can take the steps which might see her patients again benefit from her services.

[76] I am concerned that simply affirming the Board's decision would result in WD being suspended for an indefinite period. If she is abstinent, and demonstrably so through testing, and receives appropriate treatment, then the risk she poses would again be sufficiently and appropriately managed. In those circumstances, the continued suspension of her right to practice may no longer be necessary to protect public health or safety. The continuation of the suspension would then be unsupported by s 156 of the National Law.

[77] Therefore, it is appropriate that there be an opportunity for WD to have this decision reviewed in the Tribunal. It is a Tribunal review decision as defined by s 398D(1)(e) of the Health Practitioners (Disciplinary Proceedings) Act 1999. Section 398D(3) requires the Tribunal to state a period of not more than 3 years from the day of the decision within which WD may not apply for a review of the decision in the Tribunal.

[78] In my view, it is appropriate to set a non review period in this case of 3 months.

[79] The effect of that order is not that the suspension lasts for only 3 months. Rather, it means that after 3 months WD would be able to bring an application for the review of the decision. It would be for WD to establish in those proceedings that the decision was no longer appropriate.

[80] This, in my view, facilitates the protection required by s 156 whilst not imposing an onerous condition which would extend beyond its utility as anticipated by s 156.

[81] I dismiss the application and affirm the immediate action decision of the Board. I impose a non review period of three months.

[1] Health Practitioners (Disciplinary Proceedings) Act 1999 (Disciplinary Proceedings Act) s 398ZC(a); Chaudhry v Medical Board of Australia [2013] QCAT 305.

[4] Health Practitioner Regulation National Law Act 2009 s 9.

[5] Pearse v Medical Board of Australia [2013] QCAT 392 at [24] - [37].

[6] QCAT Act 2009 s 20(1); Attudawage v Medical Board of Australia (No.2) [2011] QCAT 452 at [10]; Pearse v Medical Board of Australia [2013] QCAT 392 at [25].

[9] [2011] SAHPT 18.

[11] [2012] WASAT 120.

[12] Bundle of documents filed by the Board on 25 October 2013, at pg 204.

[13] See National Law s 158(2)(c) and s 169.

[14] Bundle of documents, at pgs 207 - 211.

[16] Of course, if performed with her consent, then such tests could not be an assault.

[17] Bundle of documents, at pgs 218 - 220.

[19] Bundle of documents, at pgs 248 - 249, Decision of the Immediate Action Committee.

[22] Bundle of documents, at pgs 289 - 295.

[23] WD had been relieved of the need to comply with urine drug screening during the period of time that she had been ill.

[24] Bundle of documents, at pgs 303 - 308.

[32] Bundle of documents at pgs 355 - 356.

[34] Ibid at pg 359. The statutory declaration was made in a small rural town whilst WD was on the rally.

[35] Bundle of documents at pgs 389-402.

[36] Statutory Declaration of WD dated 25 October 2013.