Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Hampshire [2020] NSWCATOD 79 Hearing dates: 19, 20, 21, 22 November 2019 and 21 May 2020 (written submissions closed 1 July 2020) Date of orders: 16 July 2020 Decision date: 16 July 2020 Jurisdiction: Occupational Division Before: Balla ADCJ, Principal Member Dr J Saunders, Senior Member Dr E Bernardi, Senior Member S Lovorich, General Member Decision: (1) Dr Hampshire's registration (registration number MED0001639732) is cancelled with immediate effect pursuant to s 149C(1)(a) and (b) of the National Law. (2) Pursuant to pursuant to s 149C(7), Dr Hampshire may not make an application for review under Division 8 of Part 8 of the National Law for a period of three years from the date of these orders. (3) Dr Hampshire to pay the complainant's costs as agreed or, if not agreed, then the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014). Catchwords: PROFESSIONS AND TRADES – health care professionals – medical practitioners – psychiatrist – whether practitioner is guilty of professional misconduct – proper professional boundaries with a patient – breach of the conditions which had previously been placed on registration – impairment by an alcohol use disorder or alcohol dependence – competency – appropriate disciplinary orders Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 3A, 139(a), 139B(1)(c), 149A, 149B, 149C, 150 Legal Profession Uniform Law Application Act 2014, s 3A Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 Clyne v NSW Bar Association (1960) 104 CLR 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99 Health Care Complaints Commission v Epstein [2015] NSWCATOD 21 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Robert Hampshire (Respondent) Representation: Counsel: P Lowson (Applicant) S Barnes (Respondent) Solicitors: Health Care Complaints Commission (Applicant) McConnell Jaffray Lawyers (Respondent) File Number(s): 2019/00214150 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013, the disclosure and/or publication of the name of Patient A is prohibited. table of contents The practitioner History with the NSW Medical Board and the Medical Council of NSW Conditions on Dr Hampshire's registration The Complaint Complaint One – Patient A Evidence in relation to Complaint One Complaint Two – Breach of Conditions Evidence in relation to Complaint Two Private Health Condition 8 Private Health Condition 9 Public Practice Condition 6 Complaint Three – Professional Misconduct Complaint Four - Impairment Evidence in relation to Complaint Four Cognitive impairment Depression Alcohol dependency Complaint Five - Competence Evidence in relation to Complaint Five Legal principles Orders sought Reliability of the evidence of Dr Hampshire 14 and 15 April 2017 Alcohol Other matters Finding - Reliability of the evidence of Dr Hampshire Findings Complaint One – Patient A Complaint Two – Breach of Conditions Complaint Three – Professional Misconduct Complaint Four – Impairment Complaint Five – Competence Protective Orders Decision – Protective Orders Costs Orders REASONS FOR DECISION 1. This matter was before the Tribunal for the hearing of an application by the Health Care Complaints Commission (HCCC). It asked for disciplinary findings to be made in relation to a psychiatrist, Dr Hampshire. 2. The application raises three issues. The first is whether Dr Hampshire failed to observe proper professional boundaries with a patient (patient A). The second is whether he breached three of the conditions which had previously been placed on his registration as a medical practitioner. The third is whether he is impaired by an alcohol use disorder or alcohol dependence so that he is not competent to practise as a psychiatrist. 3. The HCCC asks for an order cancelling Dr Hampshire's registration and preventing him from applying for a review of that order for three years. 4. Dr Hampshire does not contest every matter raised by the HCCC. He wishes to resume practice with conditions on his registration. The practitioner 1. Dr Hampshire is 71 years old. He graduated as a doctor in 1975. In 1983 he obtained his Fellowship of the Royal Australian and New Zealand College of Psychiatrists. He commenced private practice as a consultant psychiatrist in 1988. 2. Dr Hampshire has not practised as a doctor since his registration was suspended on 4 August 2017. History with the NSW Medical Board and the Medical Council of NSW 1. In 1990 the Medical Board was notified of concerns about Dr Hampshire's misuse of pethidine. He relinquished his authority to prescribe drugs of addiction. 2. In 1992 a Professional Standards Committee decided Dr Hampshire suffered from an impairment because he was addicted to pethidine. Conditions were placed on his registration including requirements to undergo urine drug testing, work in a group practice and undergo psychiatric treatment. A breach of these conditions brought him before a Medical Tribunal in December 1994. 3. That Tribunal found Dr Hampshire guilty of professional misconduct. He was deregistered. 4. In 1999 Dr Hampshire's application to be re-registered was granted, subject to 13 conditions being placed on his registration. Following a period of sustained compliance with those conditions, they were gradually relaxed and then lifted in December 2003. His authority to prescribe drugs of addiction was not reinstated. 5. Dr Hampshire's name was removed from the Register in August 2009 because he did not have professional indemnity insurance and had not paid the registration fee. He applied for re-registration. 6. On 18 March 2010 a Schedule 1 Inquiry considered Dr Hampshire's application. Since September 2009 Dr Hampshire had experienced multiple episodes of confusion. In October 2009 he had been admitted to hospital for two days in an ataxic and incoherent state which was attributed to his drinking vodka and taking Xanax. Then in December 2009 Dr Hampshire had been admitted to a psychiatric unit with a few months' history of slurred speech, unsteady gait, and subtle changes in both intellect and emotions. 7. Psychometric testing revealed a mild cognitive impairment. Some episodes appeared to have been precipitated by using alcohol, Stilnox and Ritalin, in the context of an underlying brain vulnerability caused by severe hypertension. 8. The Schedule 1 Inquiry took into consideration other matters. The first was the finding of professional misconduct in 1994. The delegates emphasised, "this history reinforces the need for close, and possibly extended, monitoring of his compliance with the conditions on his registration". 9. The second was that some of the confusional episodes appeared to have been precipitated by the use of alcohol, sedatives and Ritalin. Accordingly, the delegates said, they should be avoided. 10. The third was that Dr Hampshire tended to self-diagnose and self-refer to specialists. He had a history of non-compliance with medical advice and making his own medical decisions. 11. The Schedule 1 Inquiry determined that Dr Hampshire should be re-registered, subject to conditions. These included restrictions on his ability to prescribe, limits on the number of hours he could work and the number of patients he could see and that he had to be assessed as medically fit to practise each day. He also had to attend various doctors, limit his alcohol intake and abstain from the use of sedative medications. 12. In October 2010 the Board refused a request from Dr Hampshire to have his Schedule 8 prescribing rights restored. 13. In June 2011 delegates of the Medical Council concluded that Dr Hampshire had not complied with the condition on his registration requiring him to be assessed by a doctor before starting work each day. They could not take any action because his registration had expired in May 2011. On 27 July 2011 Dr Hampshire was reregistered subject to conditions. 14. Dr Hampshire's blood pressure was stabilised and a further neuropsychological assessment in October 2011 concluded that the previous mild cognitive impairment had largely resolved. He continued to practise, subject to conditions. 15. In September 2013 a Tribunal found Dr Hampshire guilty of unsatisfactory professional conduct because he had practised without medical indemnity cover from 1 January 2008 to 3 August 2009. He had also contravened two conditions on his registration because he had seen more than 25 patients in some weeks and had not always attended the daily pre-work review by a medical practitioner. He was reprimanded and fined. The conditions that were in place on his registration were reimposed. 16. From time to time the conditions on Dr Hampshire's registration were varied. 17. The Board records also contain information about complaints received over the years including: 1993 – inappropriate behaviour; 1994 – misrepresentation; 1995 – inappropriate behaviour; 2004 – misrepresentation; 2004 – he arrived to examine candidates for FRANZCP appearing intoxicated; 2005 – boundary crossing; 2008 – reported in the newspapers as being intoxicated on a flight to Wagga Wagga; 2009 – during a consultation Dr Hampshire had been intoxicated, was not coherent, rambled a lot and was unsteady on his feet; 2009 – impairment; 2009 – misrepresentation; 2010 – charged with drink driving, the offence was proven but no conviction was recorded. 18. On 30 June 2017 the Medical Council referred patient A's complaint to the Health Committee. On 18 July 2017 the Health Committee resolved to convene proceedings under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law). Section 150 proceedings are conducted to determine whether it is appropriate to take action including suspend registration for the protection of the health or safety of any person or it is otherwise in the public interest. This is done as an interim measure until the matter is resolved by other proceedings. 19. The Section 150 proceedings considered patient A's complaint, whether Dr Hampshire had an impairment caused by cognitive deficits and whether Dr Hampshire had breached conditions on his registration. On 4 August 2017 the Medical Council, through its delegates, suspended Dr Hampshire's registration. 20. Dr Hampshire's application to stay the suspension of his registration was heard on 21 August and 14 September 2017. The application was dismissed on 29 September 2017. 21. The application bringing the proceedings before this Tribunal was filed on 10 July 2019. Conditions on Dr Hampshire's registration 1. From September 2013 until 4 August 2017 the conditions on Dr Hampshire's registration which are relevant to these proceedings were: Public Practice conditions: 6. To seek Council approval prior to changing the nature or place of practice. Private Health conditions: 8. To limit his alcohol intake to social consumption, defined by the Council as being not more than 2-3 standard drinks in any 24 hour period, with a minimum of two alcohol-free days per week. A standard drink contains not more than 10 grams alcohol. 9. To abstain from any use of sedative medications, including benzodiazepines and Stilnox (Zolpidem). The Complaint 1. There are five Complaints made by the HCCC. Complaint One – Patient A 1. Patient A had been sent by her solicitor to Dr Hampshire for a medico-legal assessment. An Order has previously been made prohibiting the disclosure of the name of patient A to any person or entity. 2. Patient A says that, as she was leaving, Dr Hampshire gave her his business card, and said if she ever needed to talk, she could call or text him. It is those words which are the subject of Particular 1. 3. Dr Hampshire says he gave her his business card so she could send him photos, but denies that he said those words. 4. Particular 2 relates to telephone conversations, text messages and voicemails between patient A and Dr Hampshire on the evening of 14 April 2017, which was Good Friday, and the morning of 15 April 2017. 5. Patient A said she accidentally called Dr Hampshire's number when she was scrolling through her messages at 7.04 pm and immediately disconnected the call before he answered. The first call listed in the Complaint is when Dr Hampshire called her back. 6. The HCCC says that Dr Hampshire failed to observe proper professional boundaries when: 1. One week after the appointment, on 14 April 2017 at around 7:04 pm he telephoned patient A and said: 1. It was a "beautiful interview"; 2. She was a "beautiful girl"; 3. He was "all alone" and "single"; Dr Hampshire does not admit that this occurred because he has no recollection of the conversation. 1. On 14 April 2017 Dr Hampshire sent patient A a text message at approximately 9:52 pm which said "Sooooo...u ok there? Want me to call you?"; This is admitted by Dr Hampshire. 1. On 14 April 2017 at approximately 10:00 pm patient A telephoned Dr Hampshire in response to the text message set out at (b) and he said "get into bed and talk to me"; Dr Hampshire does not admit that this occurred because he has no recollection of the discussion. 1. On 14 April 2017 between 10:02 pm and 10:32 pm Dr Hampshire: 1. Telephoned patient A on her mobile phone three times; 2. Left two voicemails on patient A's mobile phone saying "hellooooo" and "girl call me back"; 3. Sent patient A two text messages which said "[Patient A]. Call me back" and "Did I dream that? Call me now"; Dr Hampshire denies (i), does not admit (ii) occurred because he has no recollection of the discussion and admits (iii). 1. On 14 April 2017 at approximately 10:32 pm patient A telephoned Dr Hampshire in response to the text messages set out in (c) and (d) and Dr Hampshire inappropriately said to patient A: 1. "Are you feeling sexy?" 2. "I'm feeling very sexy [patient A]. Are you naked?" 3. "What are you wearing? A dressing gown?" 4. "Well take it off for me [patient A]" 5. "[Patient A] take it off, take it off, take it off, take it off, take it off, take it off, take it off, take it off, take it off". Dr Hampshire does not admit that this occurred because he has no recollection of the conversation. 1. On 14 April 2017 at approximately 10:33 pm after patient A terminated the telephone call with Dr Hampshire, he inappropriately: 1. Telephoned patient A seven times between 10:33 pm and 10:40 pm; Dr Hampshire admits this occurred. 1. left patient A four voicemails between 10:34 pm and 10:40 pm - "[Patient A] call me back go on don't be embarrassed" and "[Patient A] call me back..." and "Hi [patient A] call me back please lovely..." and "Hi [patient A], I'm sorry you didn't . you hung up...call me back...my fault...I'm here...you want to give me a call, please do...love to hear from you"; Dr Hampshire does not admit that this occurred because he has no recollection of the conversations. 1. Sent patient A two text messages at approximately 10:36 pm and 10:46 pm that said "[Patient A], call me back" and "Do. I know u feel now lying there. Me too. Call me x". Dr Hampshire admits this occurred. 1. On 15 April 2017 Dr Hampshire sent the following text messages to patient A: 1. At 2:42 am stating "Well young [patient A] - I'm about to commence my meditations for sleep. I hope sleep comes quick. Night now. Rob x"; 2. At 10:40 am stating "Well good morning there. Sleep well?". Dr Hampshire admits this occurred. Evidence in relation to Complaint One 1. Patient A sent a handwritten complaint to the HCCC on 24 April 2017. She later made a typed statement dated 8 November 2017 which was received by the HCCC on 10 April 2018. 2. In relation to Particular 2, a recording of the voicemails with a transcription, screenshots of the text messages and a log of the incoming and outgoing telephone calls together with information as to how long each call had lasted, all from patient A's phone, are in evidence. 3. Patient A, Dr Hampshire and his former wife, Ms Hampshire, gave evidence in these proceedings and were cross examined. 4. In December 2015, patient A, a woman in her twenties, had sustained significant injuries to her left leg after being attacked by a large dog. Her solicitor sent her to Dr Hampshire for an assessment of her psychological state as a consequence of that injury. The appointment commenced at 10 am on 7 April 2017. 5. Patient A says that during the examination, Dr Hampshire gave her his mobile number and, while she was with him, she sent him two photographs of her leg which had been taken shortly after the dog bite had occurred. The accompanying text message is in evidence and says "[patient A] dog bite". 6. Patient A says that, as she was leaving the appointment, Dr Hampshire gave her his business card and asked her to send him any other photographs she had of her injury. In her later typed statement she adds that when Dr Hampshire gave her his business card he said to her that if she ever needed to talk she could call or text him. 7. Dr Hampshire says that when he saw patient A, her leg wound had healed and he could not easily see the scar. She emphasised how traumatised she had been by the dog bite and said she had some photographs which showed the wound. He gave her his business card so that she could send him the photographs, which she later did. He denies that he said to her that if she ever needed to talk, she could call or text him. 8. In relation to their interaction on their mobiles on 14 and 15 April 2017 (which is the subject of Particular 2), Dr Hampshire attributes his behaviour to being intoxicated and affected by one Temazepam tablet. He says he has never had any recollection of what he did that day and of the interchange with patient A. Dr Hampshire initially thought he had been out drinking on a friend's boat in Sydney Harbour because that is what he did on Good Friday every year. However he now believes he spent the day at the home of his former wife, Ms Hampshire. 9. Ms Hampshire gave evidence. She said that in 2018 she was told that Dr Hampshire had been out on the boat on Good Friday in 2017. From the entry in her diary she is sure he spent the day at her house and he did not have anything to drink. She could not remember when he arrived, how long he stayed or whether he had dinner with her. 10. We will discuss the inconsistencies in the evidence as to where Dr Hampshire spent the day on Good Friday and whether he had been drinking during the day in more detail later in these Reasons. Complaint Two – Breach of Conditions 1. As set out above, Private Health Condition 8 on Dr Hampshire's registration required him to limit his alcohol intake to social consumption, defined as being not more than 2-3 standard drinks in any 24 hour period, with a minimum of two alcohol-free days per week. A standard drink contains not more than 10 grams alcohol. 2. Private Health Condition 9 on Dr Hampshire's registration required him to abstain from any use of sedative medications, including benzodiazepines and Stilnox (Zolpidem). 3. Public Practice Condition 6 on Dr Hampshire's registration provided that he was required to seek Council approval prior to his changing the nature or place of his practice. 4. The HCCC says he contravened each of these conditions. 5. In Particular 1, the HCCC says that Dr Hampshire contravened Condition 8 in that: 1. On 14 April 2017 he consumed six or more standard alcoholic drinks; 2. Between approximately early August 2015 and early August 2017 he consumed approximately four standard drinks at least twice and up to four times per week. 1. Both of these claims are admitted by Dr Hampshire. 2. In Particular 2, the HCCC says that Dr Hampshire contravened Condition 9 in that between approximately early August 2015 and early August 2017, he used a type of benzodiazepine, Temazepam, approximately two nights per week. 3. This is admitted by Dr Hampshire. 4. In Particular 3, the HCCC says that Dr Hampshire contravened Condition 6 by failing to seek Medical Council approval when he, between November 2014 and 4 August 2017, conducted regular medico-legal assessments on 1 to 2 days a month in various rural locations including Coffs Harbour, Wagga Wagga and Port Macquarie. 5. Dr Hampshire admits he conducted those assessments, does not admit he breached the condition but concedes that such a finding is open. Evidence in relation to Complaint Two Private Health Condition 8 1. In relation to Particular (1)(a) of Complaint Two, on 4 August 2017, the Medical Council conducted proceedings pursuant to s 150 of the National Law (as already mentioned). 2. Dr Hampshire told the delegates that, on Good Friday 2017, he had been on a boat drinking through lunch and through the afternoon and would have had more than four standard drinks. He apparently agreed with the proposition that he had six or more drinks. 3. In relation to Particular 1(b) of Complaint Two, in his statement dated 15 October 2019 Dr Hampshire said from August 2015 until August 2017 he often consumed a bottle of wine over dinner with a friend. In his evidence in the s 150 proceedings on 4 August 2017 he said he had four standard drinks one or two nights during the week and certainly on Saturday and/or Sunday at lunch and dinner. It did not occur to him that in so doing he was in breach of Condition 8. 4. As we have said, Dr Hampshire admits Particulars 1(a) and (b) of Complaint Two. Private Health Condition 9 1. In relation to Particular 2 of Complaint Two, in his statement dated 15 October 2019 Dr Hampshire said that, after his son's death in 2014, he experienced extreme difficulty sleeping. In early 2015 he started taking benzodiazepines. One or two nights a week he took one 10 milligram tablet of Temazepam (Normison). He obtained the medication from his then girlfriend, for whom it had been prescribed. 2. As we have said, Dr Hampshire admits Particular 2 of Complaint Two. Public Practice Condition 6 1. In relation to Particular 3 of Complaint Two, Dr Hampshire said in his statement dated 15 October 2019 that since 2013 he had been seeing medico-legal patients sent to him by ASSESS, which is a company which arranges such assessments on behalf of legal practitioners and insurance companies. 2. Dr Hampshire performed these medico-legal assessments in rural locations throughout New South Wales on one Friday a month. On that day he would see five or more patients. His principal place of practice remained at 7/139 Macquarie Street, Sydney. 3. Dr Hampshire says he did not believe that Condition 6 required him to inform the Medical Council when he commenced doing that work, but, on reflection, he accepted that he should have sought the Medical Council's approval. He apologised for not having done so and assured the Tribunal that his failure was not a deliberate flouting of the Condition. 4. In relation to Particular 3 of Complaint Two, Dr Hampshire did not concede that he breached Condition 6 but concedes such a finding is open to the Tribunal. Complaint Three – Professional Misconduct 1. The HCCC says the conduct asserted in Complaints One and Two is not only unsatisfactory professional conduct but, individually and cumulatively, is professional misconduct. The definition in the legislation of professional misconduct is: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. More than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration (s 139E). 1. Dr Hampshire denies Complaint Three. Complaint Four - Impairment 1. The issue to be determined in relation to Complaint Four is whether Dr Hampshire has an impairment. 2. The relevant conditions relied upon by the Health Care Complaints Commission as establishing an impairment are: 1. Various cognitive deficits shown on psychometric testing; 2. Depression; 3. Alcohol use disorder and alcohol dependence. Evidence in relation to Complaint Four Cognitive impairment 1. Dr Hughes is a neuropsychologist. She tested Dr Hampshire on 29 October 2019. She concluded: 1. His general cognitive functioning is lower than the level that would be expected for a person with his background. That reduction has been stable since at least 2017. 2. He displayed impairments in complex attention and areas of executive functioning which appeared to be longstanding, since at least July 2017. 1. Dr Hampshire admits he is impaired by the deficits identified by Dr Hughes. Depression 1. Dr Armstrong, who has been Dr Hampshire's treating psychiatrist since February 1989, has diagnosed a recurrent major depressive disorder. 2. Dr Apel is a psychiatrist who reviewed Dr Hampshire on a medico-legal basis for these proceedings. He agreed that Dr Hampshire met the criteria for a major depressive disorder. 3. Dr Hampshire admits he is impaired by depression. Alcohol dependency 1. The impairments relied on in the Complaint are alcohol use disorder as defined in DSM-5 and alcohol dependence as defined in DSM-IV (which was in use until 2013) and the International Classification of Diseases ICD-10. 2. Dr Armstrong agreed that Dr Hampshire's symptoms met the criteria for both diagnoses. 3. Dr Apel has experience in alcohol issues. He agreed that Dr Hampshire met the criteria for both diagnoses. He said such a disorder is likely to cause impaired function, as clearly indicated by his interaction with patient A. 4. Dr Hampshire admits he is impaired by an alcohol use disorder and alcohol dependence. Complaint Five - Competence 1. Although, in Complaint Four the HCCC asserts that Dr Hampshire is impaired on three separate grounds, it relies solely on the impairment arising out of the alcohol use disorder/alcohol dependence as rendering Dr Hampshire not competent to practise. 2. Dr Hampshire denies Complaint Five. Evidence in relation to Complaint Five 1. Dr Hampshire has been attending his treating psychiatrist Dr Armstrong for many years. Dr Armstrong was called to give evidence on 21 November 2019. He said that while treating Dr Hampshire he had not turned his mind as to whether Dr Hampshire's symptoms met the criteria for an alcohol disorder because it did not seem relevant to the therapy he was doing. He saw major depression and PTSD as the primary conditions. He is not qualified in addiction psychiatry. 2. Dr Armstrong agreed, while giving evidence, that Dr Hampshire's symptoms also fulfilled the criteria for the diagnosis of an alcohol use disorder and alcohol dependence. 3. There is no evidence that such a diagnosis has been made by any other doctor at an earlier time. 4. Dr Hampshire then accepted when giving evidence that he has an alcohol use disorder/alcohol dependence. 5. During the hearing in November 2019 the Complaint was amended to add an alcohol abuse disorder to Complaints Four and Five. After Dr Hampshire finished giving evidence on 22 November 2019, the proceedings were adjourned to enable Dr Hampshire to call evidence in relation to this issue. 6. Dr Hampshire had been admitted twice in 2019 to the Damascus Unit of the Brisbane Private Hospital under the care of Dr Storer. It is a specialised unit for the care and treatment of patients with issues with alcohol and/or prescribed and over-the-counter drugs. Dr Storer took a history of past excessive alcohol intake, a past history of opioid dependence and benzodiazepine dependence, both in remission. He advised, in a report, that Dr Hampshire had benefited from a group programme and felt considerably better from not drinking. At the time of discharge Dr Hampshire said he intended to maintain abstinence from alcohol and all substances. His second admission was a follow-up relapse prevention treatment stay. 7. Dr Apel saw Dr Hampshire three times during those admissions to the Damascus Unit in 2019. Dr Apel had observed that Dr Hampshire had not been able to fully open up about matters. 8. After the matter was adjourned, Dr Apel was retained on a medico-legal basis and provided a report dated 19 February 2020. He gave evidence on 21 May 2020. He had seen Dr Hampshire in his rooms on 29 January and 13 February 2020. He diagnosed Dr Hampshire as having a major depressive disorder which is in remission and an alcohol use disorder. 9. Dr Apel is of the view that the impairment caused by Dr Hampshire's alcohol dependence can be adequately mitigated with appropriate monitoring and supervision. Controlled drinking is not a viable premise and he recommended full abstinence. He also recommended the supervision of a psychiatrist experienced in alcohol use, the cessation of Ritalin and a return to medical practice for a restricted number of hours per week. Legal principles 1. These proceedings are brought under Part 8 of the National Law. 2. Section 3A provides: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. The HCCC bears the onus of proof. The Tribunal has made findings on the basis that the particulars of the Complaint must be established to the civil standard (on the balance of probabilities) to the level of satisfaction described in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Orders sought 1. Counsel for the HCCC invited the Tribunal to make the following Orders: 1. An order cancelling the registration of Dr Hampshire with immediate effect. 2. An order preventing Dr Hampshire from making an application for review of Order 1 for three years. 3. Dr Hampshire to pay the HCCC's costs as agreed or, if not agreed, as assessed. 1. Counsel for Dr Hampshire invited the Tribunal to reprimand Dr Hampshire and impose the following conditions on his registration: Public Practice conditions: 1. Not to hold authority to possess, prescribed, supply, dispense or administer any drug of addiction (Schedule 8 drugs). 2. Not to possess, prescribed, supply, dispense or administer any drug of addiction (Schedule 8 drugs). 3. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 practitioners (excluding the respondent) and where there is always one other medical practitioner on site. 4. Not to work more than 35 hours per week. 5. Not to see any more than 30 patients per week (including medico-legal assessments). 6. To seek Council approval prior to changing the nature or place of practice. Private Health conditions: 1. Not to self-administer: a. Any Schedule 4D or Schedule 8 drug. b. Any narcotic derivatives, non-prescription compound analgesic cold medication. Such medications must only be prescribed and taken at the direction of his treating practitioner. 2. To attend for treatment by a general practitioner of his choice and to be reviewed by his general practitioner at least three monthly. To authorise his treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 3. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise the treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 4. To attend for treatment by a specialist drug and alcohol psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise that treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 5. To attend for treatment by a cardiologist of his choice, at a frequency to be determined by the treating cardiologist. To authorise the treating cardiologist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 6. To adhere with medications, treatments and investigations recommended by his treating practitioners. 7. The extent of his professional medical duties is to be guided by his health status and the advice of his treating and Council-appointed practitioners. 8. To abstain from the consumption of alcohol. 9. To comply with the Medical Council's Alcohol Screening Policy and Participant Procedure: CDT screening. 10. To abstain from any use of sedative medications, including benzodiazepines and Stilnox (zolpidem). 11. To comply with the Medical Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and undergo thrice weekly urine drug screening. 12. To practise under category C supervision in accordance with the Medical Council's Compliance Policy — Supervision (as varied from time to time) and is subsequently determined by the appropriate review body. a. Supervision meetings are to occur on a monthly basis, with reports to be forwarded to the Council on a six-monthly basis; b. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: i. Medical record reviews; ii. Random case reviews; iii. Administrative processes such as appointment systems; diary maintenance and the timely preparation of reports. 13. To attend for review by the Council-appointed psychiatrist on a 6 monthly basis or as otherwise directed by the Council, at the Council's expense. 14. To attend a Review Interview at the Council in 6 months or as otherwise directed by the Council. 15. To attend for neuropsychometric testing by the Council-nominated psychologist, as directed by the Council, at the Council's expense. 16. To authorise the Council to forward copies of the Tribunal's decision and other information relevant to his impairment to the Council-appointed practitioners and his treating practitioners. 17. The appropriate review body for these conditions is the Medical Council of NSW. Reliability of the evidence of Dr Hampshire 1. The Tribunal does not consider Dr Hampshire to be a reliable historian. 14 and 15 April 2017 1. There are various versions of Dr Hampshire's recollection of what occurred on 14 and 15 April 2017 which are the days on which he had the telephone interactions with patient A. The accounts differ as to: 1. Whether he had been out on a boat with friends or been at the house of Ms Hampshire during the day on Good Friday; 2. Whether he had been drinking alcohol and taken a benzodiazepine in the hours before the first telephone call; 3. Whether he had any recollection of the text and phone interactions with patient A or whether he was reconstructing what must have occurred. 1. Dr Hampshire told this Tribunal that he does not recall where he had been during the day on Good Friday 2017. He agreed he had told people in 2017 that he had been out on a boat all day with friends where he had been drinking alcohol. He found out he had not been on the boat later on when he spoke to the owner of the boat. Dr Hampshire said that was when he started making enquiries and found out from Ms Hampshire that he spent the day with her preparing for a party to be held on 16 April 2017. 2. Dr Hampshire also said that he does not recall having the telephone conversations or sending or receiving the text messages on that night. His descriptions of what had occurred when he spoke about that evening to others were his attempt to reconstruct and make sense of what had happened. 3. Dr Hampshire said he cannot even recall whether he had anything to drink that day but he has concluded from his uncharacteristic behaviour that night and the slurring which can be heard in the voicemails, that he had been drinking alcohol and had possibly taken a benzodiazepine. 4. Dr Hampshire was extensively cross examined in relation to this evidence. 5. On 24 May 2017, just over a month after Good Friday, Dr Hampshire saw his treating psychiatrist, Dr Armstrong. It is common ground that by that time Dr Hampshire had received patient A's handwritten complaint. Dr Armstrong recorded in his notes: This girl at Coffs, was bitten badly by a dog. Was well repaired surgically, quite well. I asked if she had any photos, she had one before repair, sent it … A week later she rang me, she says by accident. I was asleep. I hear the call, think "who is this girl?" ring back. She says the content of the message I sent is not nice. I had drunk a lot. 1. Dr Armstrong gave evidence. In addition to the information in his notes, he recalled that Dr Hampshire had told him at that consultation that he thought he had been out on a boat on the harbour during the day and had been drinking. Later on in his evidence he added "I'm pretty sure he did tell me about being out on the boat". Dr Hampshire told him that when he got home he had gone to sleep and been woken by a phone call. He did not realise who the person on the line was and he had texted her something back inappropriately. 2. This history raises the following issues: 1. Dr Hampshire remembered he had been out on the boat. 2. Dr Hampshire remembered he had had a lot to drink. 3. Dr Hampshire said he had been asleep when the phone rang. This is not consistent with his having no recollection of any event that day. 4. Dr Hampshire remembered that he thought "who is this girl". This also is not consistent with having no recollection of any event that day. 1. Dr Hampshire concedes that Dr Armstrong accurately recorded at least some of what he told him about his recollection of the incident. However he does not accept that on 24 May 2017 he had some recall of what had occurred on 14 and 15 April 2017. He thinks he had been trying to reconstruct what had happened and was trying to make sense of it. However Dr Hampshire did concede that on 24 May 2017 he had recollected that he had been asleep and woken up by the telephone call. 2. The Tribunal is satisfied that this history taken on 24 May 2017 does not suggest that Dr Hampshire could not remember what he had done during the day or whether he had been drinking. He positively asserted that he had been woken up by the call and that he did not recognise who was on the phone. 3. Pursuant to conditions on his registration, Dr Hampshire had been regularly reviewed by Dr O'Connor, as a Council appointed psychiatrist from 2000 to 2003 and then again from 2010. He reviewed Dr Hampshire on 11 July 2017. In his report to the Medical Council Dr O'Connor said: I asked Dr Hampshire to provide an account of what had occurred on Friday 14 April. He said that he had gone to a birthday lunch on a friend's boat. He could not recall whose birthday it was. He could recall that the owner of the boat was a friend of his (L.O.). He could not recall who else was at the party. He said there were 10-12 people in the party. He thought that [Ms Hampshire] may have been there but he was not sure. He admitted to "drinking most of the day". He does not think that there were any incidents on the boat but he said that he could not recall what happened after leaving the boat. He said he thought he might have gone to a rugby match but he had googled the games on that day and concluded this was unlikely. He said that he was home alone when the phone calls and texting with (patient A) occurred. He said that he had absolutely no recollection of any of these telephone interactions with (patient A) because he was "drunk" after being out to lunch all day and had taken a sleeping tablet (temazepam) before going to bed. 1. The Tribunal is satisfied that this history does not suggest that Dr Hampshire could not remember what he had done during the day nor whether he had been drinking. He did remember that he had taken a Temazepam before going to bed. 2. Dr Hampshire gave evidence before the Medical Council on 4 August 2017. He said he had been out on a boat all day and had six or more drinks. Later he had taken one benzodiazepine. He did not remember texting patient A because he had been drinking and taking benzodiazepines. 3. Dr Hampshire gave evidence before a Tribunal on 21 August 2017. He said he could not recall another occasion when he'd been as drunk as he had been on that Good Friday. He did not recall the telephone calls until the next morning when he woke up. He thought his lack of recollection was due to the extent of his intoxication and the benzodiazepine. 4. In his letter to the Medical Council dated 12 July 2018 Dr Hampshire said: I returned the call and made an inappropriate response, which forms the basis of the complaint. I responded thinking it was another person, a friend. I deeply regret my offensive response, which was made in error, but was inappropriate and caused unintended hurt to the claimant. 1. The Tribunal considers that this explanation, in which Dr Hampshire says he thought he was speaking to someone else, a friend, is inconsistent with his having no recollection of what occurred. 2. In his statement dated 23 February 2018 Dr Hampshire said as a result of his excessive ingestion of alcohol on that day and taking one 10 mg Temazepam tablet "I confusedly responded most inappropriately". Again, this explanation does not suggest Dr Hampshire had no recollection of what occurred. 3. In his statement dated 15 October 2019 he says "I have very little recollection of the events which occurred on that day". 4. Ms Hampshire said that, after having checked her diary, she recalls that Dr Hampshire was at her place helping to prepare food, move furniture and set up tables for a large part of Good Friday for a party she was having on Easter Sunday. It is common ground that the relevant entry in the diary does not name Dr Hampshire but sets out the menu and shopping list. She said that she regards Good Friday as a sombre day and does not drink alcohol on that day nor does she permit others at her home to do so. She was firmly of the view that Dr Hampshire did not drink alcohol at her home that day. On cross examination she said she did not recall when he arrived or when he left and she did not recall whether he stayed for dinner or arrived after lunch. 5. Dr Hampshire said, in a statement dated 15 October 2019: When I told [Ms Hampshire] I believed I had been on the boat, she was adamant I had spent a large part of the day with her at her home as she was preparing an Easter Sunday lunch. She recalled I consumed only a small amount of alcohol at her place. This is inconsistent with the evidence of Ms Hampshire who said she does not allow any alcohol at all in her home on Good Friday. In his evidence in these proceedings Dr Hampshire said that if Ms Hampshire said he had not had anything to drink at her place, then that would be correct. 1. In addition to these inconsistencies, the Tribunal takes into account the expert evidence of Dr Wright, psychiatrist who said that an assertion of having no recollection of the contact with patient A, is irreconcilable with Dr Hampshire saying that he thought someone else was making the phone call. A blackout is a complete absence of recall of a series of events. Alcohol 1. Dr Hampshire conceded before this Tribunal that historically he has said different things about his alcohol use. 2. In relation to his recent history, in his statement dated 15 October 2019 Dr Hampshire said that he had been discharged from the Damascus Unit on 29 June 2019 and that the admissions to that Unit had reinforced the need for abstaining from alcohol and benzodiazepines and then said "I have not had an alcoholic drink for some months." 3. The Tribunal is satisfied that, in making the statement dated 15 October 2019, Dr Hampshire had been intending to give the impression that he had attended for treatment at the Damascus Unit, had responded to the treatment which ended in June 2019 by realising the need for abstinence, and had stopped drinking. 4. This is contradicted by the records of Dr Armstrong. 5. On 25 September 2019 Dr Armstrong recorded "I've been totally abstinent from alcohol for five or six weeks. I've noticed my memory is so much better and my mood much more even. I sleep beautifully otherwise. I wouldn't go back to drinking." This means that Dr Hampshire would have been drinking alcohol in August 2019. Dr Hampshire agreed that he had given this history to Dr Armstrong. Other matters 1. Lastly, the Tribunal has formed the view that Dr Hampshire is reluctant to make admissions which might harm his interests. For example he has conceded that he had withheld information from Dr O'Connor and at Medical Council review interviews. He said at the hearing of his stay application on 21 August 2017 in relation to Dr O'Connor "Obviously I didn't tell him about the sleeping tablets because the downside was very dire for me. It would have been a transgression of a condition so I kept that from him". 2. In these proceedings he said (in relation to evidence he had given at the s 150 proceedings on 4 August 2017): Q. So when you told Dr Demirkol that you didn't drink alone, that wasn't true? A. No. Q. Do you accept that you were minimising your alcohol use in the way you answered that question? A. Yes. Q. And that you were attempting to disguise from the section 150 interviewers aspects of your alcohol consumption? A. Yes. Finding - Reliability of the evidence of Dr Hampshire 1. As a consequence of the above findings, the Tribunal does not accept the evidence of Dr Hampshire where is it inconsistent with other evidence unless it is corroborated by other reliable evidence. The Tribunal does not consider the evidence of Ms Hampshire to be such reliable evidence because of the inconsistencies already recounted and the absence of any reference to an attendance of Dr Hampshire at her home on Good Friday 2017 in her diary. Findings Complaint One – Patient A 1. The only inconsistency between patient A and Dr Hampshire in relation to what occurred when she saw him in his rooms is whether, when Dr Hampshire gave her his business card at the end of the appointment, he said to her that if she ever needed to talk she could call or text him. 2. It is true that this part of the conversation was omitted from the original handwritten document prepared by patient A. However it is included in her typed statement which was made shortly afterwards. Patient A did not know why she had not included it in the earlier document. 3. The Tribunal accepts the evidence of patient A. We are not persuaded that the omission in the earlier document affects her credibility. We prefer her oral evidence to that of Dr Hampshire whom we have found not to be a reliable historian. 4. The Tribunal finds that all of the conversations, text messages and voicemails particularised in Complaint One (1) and (2) (a) – (g) occurred. 5. The HCCC says that this behaviour is unsatisfactory professional conduct. This is defined in the legislation as having: 1. Engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. Engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 1. The HCCC says each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. 2. Dr Wright, a psychiatrist, was retained by the HCCC to provide an independent expert report. All of his opinions measured the behaviour of Dr Hampshire against the standard reasonably expected of the majority of practitioners of an equivalent level of training or experience (his peers). 3. In relation to Dr Hampshire providing patient A with his mobile number and saying if she ever "needed to talk" she could call or text him (Particular 1), Dr Wright said the comment introduced an ambiguity into why he was providing his contact details which created the potential for significant boundary transgressions. They did not have an ongoing clinical relationship so there was no reason for further contact. Dr Hampshire's behaviour was significantly below the standard expected of his peers and invited Dr Wright's strong criticism. 4. In relation to the telephone conversation where Dr Hampshire said that it was a "beautiful interview", she was a "beautiful girl" and he was "all alone" and "single" (Particular 2 (a)), Dr Wright was of the view that Dr Hampshire should either have not returned phone call, or if he did and then ascertained it was accidental, he should have terminated the call politely and quickly. 5. Dr Wright said that not only was there no clinical justification for the text message, "Sooooo...u ok there? Want me to call you?" (Particular 2 (b)), it could be interpreted as flirtatious with sexualised undertones. The contact should not have occurred and the message would be considered completely inappropriate by peers. The timing, the use of text message and the content all indicated a significant boundary violation by Dr Hampshire who appeared to be seeking to pursue a personal and non-clinical relationship. It fell significantly below the standard expected of Dr Hampshire's peers, attracting his strong criticism. 6. In relation to the telephone conversation where Dr Hampshire said "get into bed and talk to me" (Particular 2 (c)), Dr Wright considered it was completely outside any professional boundary for a psychiatrist and that the conversation should not have occurred. The words spoken by Dr Hampshire fell significantly below the standard expected of his peers and attracted his strong criticism. 7. Dr Wright described the telephone conversation, voicemails and text messages particularised at 2 (d), as having personal and sexualised content. Dr Hampshire persevered in a harassing tone in spite of patient A's clearly communicated desire that he stop. Again, in Dr Wright's opinion, the conduct fell significantly below the standard expected of his peers and invited his strong criticism. 8. Particular 2(e) is directed at the communications in which Dr Hampshire asked patient A whether she felt sexy, whether she was naked, asked what she was wearing and repeatedly told her to take her dressing gown off. Dr Wright described the exchange as having become sexualised in circumstances where patient A had neither invited nor encouraged such a boundary violation. In addition to being overtly sexualised there was a harassing quality given patient A's quite clear discouragement. The communications should not have occurred. Dr Hampshire's conduct would be considered completely unacceptable by the majority of his peers and fell significantly below the standard reasonably expect of his peers. 9. In relation to Dr Hampshire telephoning patient A another three times and sending text messages asking patient A to call him back and ending one with an x (which the Tribunal accepts, contrary to the evidence of Dr Hampshire, was intended as a kiss) (Particulars 2 (f) and (g)), Dr Wright considered that the purpose of the calls was for Dr Hampshire to continue to pursue a personal and sexualised interaction with patient A. Her response was overtly discouraging, however he persisted. No such communications should have been sent. His conduct fell significantly below the standard reasonably expected of his peers and attracted his strong criticism. 10. In relation to the whole of the conduct, Dr Wright said that the fact that Dr Hampshire made multiple unnecessary contacts, that the content of those communications became inappropriately flirtatious and sexualised and that he continued despite clear communication from patient A that he desist, fell significantly below the standard reasonably expected of his peers and attracted his strong criticism. 11. The Tribunal accepts the opinion of Dr Wright. 12. In addition Dr Hampshire accepted that, based on the matters he had conceded, he was guilty of unsatisfactory professional conduct. 13. The Tribunal finds that by engaging in the conduct particularised in Complaint One, Dr Hampshire is guilty of unsatisfactory professional conduct under section 139B(1)(c) of the National Law in that he engaged in conduct that demonstrates his judgment was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 14. Although it not the subject of a Complaint, the Tribunal takes into account that its findings are consistent with Dr Hampshire exhibiting a sexual interest in patient A when he met her in his rooms because of the language he used in the medico-legal report he prepared dated 10 April 2017. He said under the heading "Mental State Examination" – "She could not camouflage her pretty face, even with her self-acknowledged, vibrant hair colours and styles". The Tribunal does not accept the explanation provided by Dr Hampshire – that he prides himself on trying to bring to life the person he is looking at, so the description of the person's appearance is always a lengthy part of his mental state examination. The Tribunal agrees with Dr Armstrong that the words suggest Dr Hampshire obviously found patient A physically attractive, it was inappropriate to put those words in the report, it did not add any substance to the opinion and was not remotely relevant. Complaint Two – Breach of Conditions 1. Section 139B (1) of the National Law defines "unsatisfactory professional conduct" of a registered health practitioner as including: - (c) A contravention by the practitioner (whether by act or omission) of-- (i) a condition to which the practitioner's registration is subject; … 1. The Tribunal finds that: 1. On 14 April 2017 Dr Hampshire consumed six or more standard alcoholic drinks. This was a breach of Private Health Condition 8 on Dr Hampshire's registration (Particular 1(a)). 1. Between approximately early August 2015 and early August 2017 Dr Hampshire consumed approximately four standard drinks at least twice and up to four times per week. Not only was this admitted by Dr Hampshire but the Tribunal is satisfied that Dr Hampshire's evidence in relation to his drinking was evasive and inconsistent because he was seeking to minimise the amount he had been drinking in the relevant period. This was a breach of Private Health Condition 9 on Dr Hampshire's registration (Particular 1(b)). 1. Between approximately early August 2015 and early August 2017, Dr Hampshire used a benzodiazepine, Temazepam, approximately two nights per week. This was a breach of Private Health Condition 9 on Dr Hampshire's registration (Particular 2). 1. Dr Hampshire failed to seek Medical Council approval when he, between approximately November 2014 and 4 August 2017, conducted regular medico-legal assessments on 1 - 2 days per month in various rural locations including Coffs Harbour, Wagga Wagga and Port Macquarie (Particular 3). In his Reply filed in these proceedings Dr Hampshire says that he does not admit the breach of the condition but concedes that such a finding is open to the Tribunal. However, in the written submissions made by counsel for Dr Hampshire it is conceded that in cross examination Dr Hampshire agreed that prior to undertaking the rural work for ASSESS he should have advised the Medical Council and that the Tribunal would accordingly find Particular 3 proven. Dr Hampshire was required to seek Council approval prior to changing the nature or place of his practice. He did not tell the Council that he was regularly consulting patients at locations outside Sydney. The Tribunal is satisfied that Dr Hampshire breached Public Practice Condition 6 on his registration. 1. Dr Hampshire conceded that the breaches of Private Health Conditions 8 and 9 were unsatisfactory professional conduct. 2. The Tribunal finds that by engaging in the conduct particularised in Complaint Two i.e. contravening conditions on his registration, Dr Hampshire is guilty of unsatisfactory professional conduct under section 139B(1)(c) of the of the National Law. Complaint Three – Professional Misconduct 1. The HCCC relies on the Tribunal's findings in relation to Complaints One and Two individually and cumulatively to lead to a finding that Dr Hampshire is guilty of professional misconduct. 2. The relevant definition of professional misconduct is that the practitioner has: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 2. Engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 1. In Health Care Complaints Commission v Epstein [2015] NSWCATOD 21 the Tribunal at [714] adopted the reasoning of the former Medical Tribunal in Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99 at [18]: … The definition of professional misconduct is focused on the nature of the conduct, which must have the capacity to justify such an order, whether or not such an order should be made in a particular case: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267. In Epstein, the Tribunal went on to hold at [715]: We are satisfied that the practitioner's unsatisfactory conduct in respect of this cohort of patients was serious. While the practitioner asserts no patient has complained or been injured as a result of the treatment, that is not the test. What is relevant is the nature of her conduct, its potential to place the public at risk, and that it constituted a serious departure in many respects from the appropriate standard of care to be expected of a practitioner of this doctor's specialist training and long experience. The breaches by the practitioner of the relevant regulations and codes were numerous. Those matters coupled with her failure to report to referring doctors, placed her patients at risk of adverse outcomes. We are satisfied the serious nature of her conduct, based on our findings in respect of unsatisfactory professional conduct, constitutes professional misconduct within the meaning set out in the National Law. 1. Consideration of what constitutes unsatisfactory professional conduct and professional misconduct for the purposes of the National Law is explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20] as follows: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). 1. The Tribunal takes into account the following matters as indicators of the serious nature of the conduct underlying Complaint One: 1. The escalating sexual undertones in Dr Hampshire's interactions with patient A starting with his inappropriate ambiguous invitation for her to contact him when he spoke to her in his rooms and continuing through in his conversations and text messages on 14 and 15 April 2017 where he asked what she was wearing, asked her to take off her dressing gown and placed a kiss at the end of two text messages. As Dr Wright said, his persistence and conduct appeared to have a tone of harassment. Dr Hampshire accepted that the texts were very inappropriate. This is a significant boundary violation which went on for some hours. 2. Dr Hampshire knew that patient A was vulnerable. This is evident from the report he prepared which he sent to her solicitors. This was conceded by Dr Hampshire who agreed he had formed the view that she was suffering from several, significant psychiatric or psychological disturbances and was extremely vulnerable. 3. There was a power imbalance between Dr Hampshire and patient A, arising from the age difference, his superior social position and her dependence on him for her medico-legal report for her damages claim. Dr Hampshire conceded there had been a significant power imbalance in their relationship – she was dependent on him for a medico-legal assessment which would be critical in her claim for damages, he was a psychiatrist and a member of the medical profession so that she would have had a natural feeling of trust towards him, look up to him and perhaps feel intimidated by him. 1. The Tribunal takes into account the following matters as indicators of the serious nature of the conduct underlying Complaint Two being the breach of conditions: 1. The Tribunal is satisfied that Dr Hampshire has been aware for many years that his health and conduct were affected by his use of alcohol and prescription medication. It was the evidence of Dr O'Connor that in recent years Dr Hampshire had often said to him that he felt the conditions on his registration were unnecessary or unnecessarily restrictive. He had explained to Dr Hampshire that there were concerns that his capacity to tolerate alcohol and benzodiazepines had been compromised or reduced due to his hypertensive encephalopathy history and his aging brain. Dr Hampshire conceded that since 2010 he had been aware that one of the reasons for the placing of conditions on his registration was that hypertension, drinking and benzodiazepines could interact in a negative way for his health and work performance. 1. The Tribunal is satisfied that Dr Hampshire deliberately withheld information from the regulatory authorities to so they would not know he had contravened the conditions on his registration. As a consequence of the episodes of confusion in 2009 which were linked to alcohol and Stilnox use (as already noted), a Schedule 1 Inquiry in 2010 imposed conditions limiting Dr Hampshire's alcohol consumption and requiring him to abstain from sedative medications including benzodiazepines. After that, the regulatory authorities closely monitored Dr Hampshire's practice to ensure he was complying with the conditions on his registration. Dr O'Connor said that, over the years he did have concerns about Dr Hampshire using benzodiazepines and other non-benzodiazepine sedative, hypnotic drugs. Dr Hampshire denied such use at every assessment. Dr Hampshire conceded he deliberately misled Dr O'Connor, and Medical Council review interviews by omitting information about his benzodiazepine use. He also misled them by failing to inform them that, from 2015 to 2017, he had been drinking more than was permitted by the condition on his registration. 1. The Tribunal accepts the submission made by counsel for the HCCC that Dr Hampshire's failure to admit his drinking and benzodiazepine use to the regulatory authorities meant that considerable resources expended in mentoring had been wasted. 2. Dr Hampshire has admitted to breaching the conditions for two years. 1. The Tribunal is satisfied that the conduct of Dr Hampshire being the subject of Complaint One and Complaint Two is, both individually and cumulatively of a sufficiently serious nature to justify suspension or cancellation of Dr Hampshire's registration. 2. The Tribunal finds Dr Hampshire guilty of professional misconduct under section 139E of the National Law. Complaint Four – Impairment 1. Complaint Four raises the issue of impairment. 2. Section 5 of the National Law relevantly defines impairment as a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the person's capacity to practise as a doctor. 3. The Tribunal accepts the opinion of Dr Hughes and the admission made by Dr Hampshire and finds that Dr Hampshire suffers cognitive deficits and is impaired because he has: 1. difficulty maintaining concentration; 2. limited and inaccurate recall of new information; 3. difficulty in monitoring his own performance; 4. difficulty implementing strategies; 5. difficulty regulating his behaviour; 6. difficulty maintaining complex attention; 7. difficulty with aspects of executive functioning including but not limited to problem solving or organisation and planning. (Particular 1) 1. The Tribunal accepts the opinion of Dr Armstrong and the admission made by Dr Hampshire and finds that Dr Hampshire is impaired by depression. (Particular 2) 2. The Tribunal accepts the opinion of Dr Armstrong and Dr Apel and the admission made by Dr Hampshire and finds that Dr Hampshire is impaired by reason of an alcohol use disorder/alcohol dependence. (Particular 3) Complaint Five – Competence 1. A finding of impairment (which the Tribunal made under Complaint Four), does not necessarily lead to a finding that a practitioner lacks competence to practise. 2. Competence to practise is relevantly defined in s139(a) of the National Law as: A person is "competent" to practise a health profession only if the person - (a) has sufficient … mental capacity … to practise the profession.. 1. In these proceedings the HCCC asks the Tribunal to find that Dr Hampshire is not competent to practise because of his alcohol use disorder and alcohol dependence. 2. In Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168]-[170] Sackville AJA drew a distinction between impairment and competence: 168 …There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine within the meaning of s 64(1)(a) of the Act … 170 The absence of further reasons supporting the finding of lack of competence perhaps suggests that the Tribunal assumed that the existence of an impairment, at least of the kind attributed to the appellant, necessarily meant that he lacked the mental capacity or communication skills to practise medicine. Such an assumption would be incorrect. Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances. 1. In deciding whether Dr Hampshire is competent to practise as a consequence of his dependence on alcohol, the Tribunal has taken the following matters into account: 1. In relation to the likely duration of the impairment, Dr Apel agreed that Dr Hampshire would have to demonstrate abstinence for three years before the condition could be considered to be in remission. Meanwhile the risk of relapse was "omnipresent". It was, Dr Apel said, too early to assess the likelihood of recovery as Dr Hampshire had been drinking a long time and habits take a while to modify. The Tribunal agrees with Dr Apel when he said that Dr Hampshire minimises his alcohol intake because he is still in significant denial as to how much alcohol is affecting his life. Dr Apel said that while Dr Hampshire intellectually understands he has multiple alcohol related issues he has not fully digested and accepted that he has a problem which needs to be addressed. The Tribunal is satisfied that this impacts adversely on the likelihood of Dr Hampshire achieving remission in three years. 1. The primary mitigating factors proposed by Dr Apel during the lengthy recovery period are monitoring and supervision. As discussed elsewhere in these Reasons, Dr Hampshire has not only failed to comply with conditions in the past but has actively hidden that failure from those appointed to monitor and supervise him. The Tribunal considers that it is likely that this would occur again. 2. The condition can grossly impair Dr Hampshire's judgement and clinical ability, as evidenced by his conduct the subject of Complaint One, Particular 2. 1. The Tribunal is satisfied that Dr Hampshire does not currently have sufficient mental capacity to practise the profession and is accordingly not competent to practise. Protective Orders 1. An Order has previously been made for the Tribunal to make findings in relation to the Complaint and then move on to determine the appropriate protective Orders after a single hearing. Decision – Protective Orders 1. Counsel for Dr Hampshire conceded that a finding that Dr Hampshire is not competent to practise, would necessarily result in an order that Dr Hampshire be deregistered. 2. The Tribunal has made this finding. 3. The Tribunal also considers that the Orders sought by the HCCC should in any event be made by reason of its finding of professional misconduct in relation to Complaint Three. 4. That finding of professional misconduct means that Dr Hampshire engaged in sufficiently serious conduct which could justify suspension or cancellation of his registration. It does not mean the registration must be suspended or cancelled. 5. The legislation provides that, on a finding of professional misconduct the Tribunal may suspend or cancel the practitioner's registration: s 149C; impose a fine: s 149B; and caution or reprimand the practitioner, impose conditions, order the practitioner to undergo treatment or counselling, order the practitioner to complete an educational course, order the practitioner to report on the practitioner's practice and order the practitioner to seek and take advice, in relation to the management of the practitioner's practice: s 149A. 6. The orders are not intended to punish the practitioner, but to protect the public: Clyne v NSW Bar Association (1960) 104 CLR 186; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. 7. The underlying principles are discussed by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. In applying these considerations the Tribunal takes into account the following: 1. Dr Hampshire's conduct risked the health and safety of the public. His conduct in relation to patient A was a serious boundary violation. It was a breach of the trust that patients have in members of the medical profession. Patient A said she considered his conduct disgusting and she felt violated. She described him as an opportunistic doctor who tried to take advantage of her. 2. The Tribunal is satisfied that Dr Hampshire's conduct, in particular breaching health conditions on his registration for two years while working, diminishes public confidence in the medical profession. 3. Dr Hampshire has serious longstanding issues with alcohol and sedatives which have not been adequately addressed despite the regulatory authorities providing support through the conditions placed on his registration. 4. Other practitioners are entitled to see the standards of their profession upheld. In addition a purpose of the protective Orders is to encourage other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. 5. As we have said, Dr Apel was of the view that the impairment secondary to his diagnosis of alcohol dependence could be adequately mitigated with appropriate monitoring and supervision. Dr Apel believed that it was likely that Dr Hampshire would now comply with a condition requiring total abstinence because in the past he had never been pushed to do so. Dr Hampshire had told Dr Apel that he wants to work and Dr Apel believes that this would motivate Dr Hampshire to maintain abstinence. Dr Apel believes that Dr Hampshire is evolving and hopefully, he said, Dr Hampshire will see the light. Dr Apel said it was too bleak to think change was not possible. However, Dr Apel conceded that the likelihood of relapse was high which was the reason he had recommended placing conditions on Dr Hampshire's registration. The Tribunal does not accept this opinion, even though the HCCC did not call expert evidence in reply. The Tribunal is satisfied that Dr Hampshire has, for many years, understood that a breach of a condition on his registration could put his ability to work as a medical practitioner at risk. He conceded in cross examination that, on Good Friday 2017, as a consequence of his long history with the regulatory authorities, he understood clearly that the conditions around alcohol and benzodiazepines use were a precondition to being able to continue to practise and notwithstanding that knowledge, he wilfully and persistently still engaged in that behaviour. There is no reason to conclude that the likelihood of his compliance with conditions at this time is higher than at any other time in the past. The Tribunal has no confidence that Dr Hampshire would adhere to the conditions proposed by him. 1. The Tribunal accepts the submission made by counsel for the HCCC that, even in the absence of a finding that Dr Hampshire is not currently competent to practise medicine, this would be a matter where practice with conditions would not be appropriate. 2. The Tribunal proposes to make the first two Orders sought by the Health Care Complaints Commission. Costs 1. Under Schedule 5D, clause 13 of the National Law, the Tribunal has the power to require a party to pay the costs of another. 2. The HCCC asks for an Order for Dr Hampshire to pay its costs as agreed or, if not agreed, then as assessed. 3. Counsel for Dr Hampshire concedes that as a general rule the costs of proceedings before the Tribunal should follow the event and that impecuniosity of an unsuccessful party alone is not a sufficient basis to deny the successful party a costs Order. 4. Counsel for Dr Hampshire submitted that Dr Hampshire should not be liable for all of the costs of the HCCC firstly, because Dr Hampshire conceded most of the substance of Complaints One and Two. 5. However Dr Hampshire initially only admitted matters which were in writing (the texts) or recorded (the voicemails) or which he had previously admitted in other proceedings. Patient A was still required to give evidence as to what occurred in his rooms and what he had said to her on the phone. 6. Secondly, counsel for Dr Hampshire relied on the delay in the HCCC formulating its claims of impairment and lack of competence in Complaints Four and Five. In the originating Complaint the only particulars were the cognitive deficits identified by Dr Hughes. Leave was granted on the first day of the hearing to add an anxiety disorder, depression and an alcohol use disorder to the particulars of both Complaints. Finally on the fourth day of the hearing leave was granted to further amend the Complaint to limit the particulars of lack of competence to an alcohol use disorder. 7. Counsel for Dr Hampshire submitted that as the second amendment to the Complaint led to the adjournment of the proceedings and made some of the earlier evidence less relevant, there should be a reduction in the costs payable by Dr Hampshire. 8. There was no suggestion that this change to the Complaint was the fault of the HCCC. The Tribunal is not satisfied it provides sufficient cause to depart from the general rule. Orders 1. The Tribunal makes the following orders: 1. Dr Hampshire's registration (registration number MED0001639732) is cancelled with immediate effect pursuant to s 149C(1)(a) and (b) of the National Law. 2. Pursuant to pursuant to s 149C(7), Dr Hampshire may not make an application for review under Division 8 of Part 8 of the National Law for a period of three years from the date of these orders. 3. Dr Hampshire to pay the complainant's costs as agreed or, if not agreed, then the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014). ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 01 September 2020 - Hearing date amended in cover sheet to November 2019 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: 01 September 2020