Smithson v Medical Council of NSW [2021] NSWCATOD 17

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Smithson v Medical Council of NSW [2021] NSWCATOD 17 Hearing dates: 22 and 23 December 2020; 25 January 2021 Date of orders: 08 February 2021 Decision date: 08 February 2021 Jurisdiction: Occupational Division Before: Cowdroy AO QC ADCJ, Principal Member A Gill, Senior Member K Wilhelm AM, Senior Member P Macneill, General member Decision: (1) The decision of the Medical Council of New South Wales under appeal is set aside subject to the imposition of conditions as follows: 1. The practitioner shall: (a) practise only in a public health service approved by the Medical Council of NSW ('the Council'); (b) obtain the approval of the Council prior to changing the nature and/or place of his practice. 2. The practitioner shall authorise the Head of Department (or equivalent supervisor) to notify the Council immediately if there are any concerns in relation to the practitioner's compliance with any conditions, his health, or clinical performance. 3. The practitioner shall: (a) practise under Category B supervision in accordance with the Council's Compliance Policy - Supervision as varied from time to time and as subsequently determined by the Council (as the appropriate review body); (b) authorise the Council to provide the practitioner's proposed and approved supervisors with a copy of the decision which imposed this condition; (c) meet with the approved supervisor on a weekly basis for not less than one hour; (d) discuss and review with the supervisor: i. the management of boundaries, ii. the management of work related stress, iii. the management of clinical material. (e) Authorise the approved supervisor to forward reports to the Council on a monthly basis; (f) not practise until a supervisor has been approved by the Council. 4. The practitioner shall not possess, supply, administer or prescribe any "drug of addiction' (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW). 5. The practitioner shall: (a) nominate to the Council for approval a registered experienced psychiatrist to act as his professional mentor in accordance with the Council's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body; (b) the practitioner shall authorise the Council to provide proposed and approved mentors with a copy of the decision which imposed this condition; (c) at each meeting request the mentor to include discussion of his personal and/or medical practice issues as they arise from time to time; (d) authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. 6. The practitioner shall: (a) within 14 days of recommencing practice, forward evidence to the Council that he has provided a copy of the decision which imposed this condition to the Head of Department (or equivalent supervisor) in any place that he works; (b) within 14 days of a change in the nature or place of his practice, forward evidence to the Council that he has provided a copy of the decision which imposed this condition, and a copy of his current conditions to the Head of Department (or equivalent supervisor) in any place he works; (c) authorise and consent to any exchange of information between the Council and Medicare and Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions. 7. The practitioner shall not: (a) prescribe for self-medication (b) subject to (9) self-administer: i. any Schedule 8 drug; ii. any narcotic derivative, non-prescription compound analgesic or cold medication. 8. The practitioner is to only take the medications referred to in 7(b) i. and ii. if they are prescribed and taken at the direction of his treating practitioner. 9. In the event the practitioner is prescribed or directed to take a: (a) Schedule 8 drug; (b) a narcotic derivative; or (c) a non-prescription compound analgesic or cold medication; he must within 7 days of such prescribing notify in writing his Council appointed psychiatrist and the Council of the prescription and provide written confirmation of the treatment from the treating practitioner to the Council. 10. To comply with the Medical Council's Drug Screening Policy and Participant Procedure: drug screening (as varied from time to time) and attend for: (a) urine drug screening 3 times a week; and (b) quarterly hair drug screening. 11. To attend for a review by a Council Appointed Psychiatrist on a six monthly basis or as otherwise directed by the Medical Council of NSW. 12. To attend a Medical Council of NSW's Review Interview on a six monthly basis, or as otherwise directed by the Council. 13. The practitioner shall: (a) attend for treatment by a general practitioner of his choice at a frequency determined by the treating general practitioner. (b) authorise the general practitioner to inform the Council of any failure to attend for treatment, termination of treatment or if there is a significant change in the practitioner's health status (including a significant temporary change). (c) must provide the Council with the professional details of the treating practitioner. 14. The practitioner shall: (a) attend for treatment by a psychiatrist of his choice at a frequency to be determined by the treating psychiatrist. (b) To authorise the treating psychiatrist to inform the Council of any failure to attend for treatment, termination of treatment or if there is a significant change in the practitioner's health status (including a significant temporary change). (c) Must provide the Council with the professional details of the treating practitioner. 15. To attend for treatment by an Addiction Specialist (either an Addiction Medicine Specialist [FAChAM] or an Addiction Psychiatrist [Cert. Addiction Psych.]) of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: i. Failure to attend for treatment; ii. Termination of treatment; or iii. A significant change in health status (including a significant temporary change). b) Must provide the Council with the professional details of the treating practitioner. c) To authorise the Medical Council of NSW to provide the treating practitioner with a copy of the decision which imposed this condition. 16. The practitioner shall continue to take any medication prescribed by his treating practitioners. 17. The practitioner shall in determining the extent of his professional medical duties be guided by his health status and the advice of his treating and Council appointed practitioners. 18. The practitioner shall authorise the Council to forward copies of the decision and any subsequent Council Review Interview or other reports and any other information relative to his health to any Council appointed practitioners and to his treating practitioners. (2) Costs are reserved. The parties are to file and serve written submissions on the issue of costs within 21 days of the date of publication of these orders. The Tribunal will then consider the issue of costs on the papers, provided each party consents, and the submissions are to state whether either party requires a hearing on costs. Catchwords: Professions and trades - health professionals – medical practitioners – appeal by suspended practitioner against suspension from registration by respondent – opioid use; whether opioid use has ceased-whether opioid test results were reliable indications of continued use of illicit drugs Legislation Cited: Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 (NSW) repealed Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 Collector of Customs v Pozzolanic [1992] FCA 897 Crickitt v Medical Council of NSW ( No 2) [2015] NSWCATOD 115 Cunliffe v Commonwealth (1994) 182 CLR 272 Director of Public Prosecutions v Smith (1991) 1 VR 63 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 FTZK v Minister for Immigration and Anor [2014] HCA 26 Ghosh v Medical Council of New South Wales [2020] NSWCA 122 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Hogan v Hinch [2011] HCA 4 House v The King (1936) 55 CLR 499 Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 Lindsay v NSW Medical Board [2008] NSWSC 40 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 43 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259 O'Sullivan v Farrer (1989) 168 CLR 2010 Pharmacy Council of New South Wales v Ibrahim (2020) NSWSC 708 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Segal v Medical Council of New South Wales [2020) NSWCATOD 86 Smithson v Medical Council of New South Wales [2016] NSWCATOD 82 Steel v Medical Council of New South Wales [2020] NSWCATOD 77 Texts Cited: Standards Australia, 'AS/NZ S 4308:2008, Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine' (2008) Category: Principal judgment Parties: Jonathan Smithson (Appellant) Medical Council of NSW (Respondent) Representation: Counsel: P Dwyer (Appellant) A Petrie (Respondent)