New South Wales Medical Tribunal CITATION : In Re Jason Martin [2010] NSWMT 13 TRIBUNAL: Medical Tribunal PARTIES : Mr Jason Martin NSW Medical Board FILE NUMBER(S) : 40006 of 2010 CORAM: Backman J - Child, Dr D - O'Brien, Dr E - Ettinger, Ms G CATCHWORDS: Reinstatement with conditions LEGISLATION CITED: Medical Practice Act 1992 Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 448; CASES CITED: Peter Cecil Harcourt Dawson v The Law Society of New South Wales [1989] NSWCA 58; Re Mansoor Zaidi [2006] NSWMT 6 DATES OF HEARING: 01/06/2010 DATE OF JUDGMENT: 15 October 2010 Mr M Ainsworth of counsel Unsworth Legal (Mr T Unsworth) LEGAL REPRESENTATIVES: Ms G Furness of counsel NSW Medical Board (Ms B Andersons) ORDERS: Reinstatement with conditions JUDGMENT: - 24 - MEDICAL TRIBUNAL OF NEW SOUTH WALES DEPUTY CHAIRPERSON: BACKMAN J Members: DR D CHILD, AM DR E O'BRIEN MS G ETTINGER Friday, 15 October 2010 Matter No MT 40006 of 2010 In Re Jason Martin Application under s 92 of the Medical Practice Act 1992 DECISION [2010] NSWMT 13 · Before the Tribunal is an application by Jason Martin (the applicant) under s 92 of the Medical Practice Act 1992 (the Act) for review of an order made by the Tribunal, differently constituted, on 27 August 2009 that he be removed forthwith from the Register of Medical Practitioners and he not apply for re-registration for a period of 4 months from the date of the Order. The ground relied upon in the application is that the applicant is a fit and proper person to practice as a medical practitioner in New South Wales. If successful on the present application, the applicant seeks an order for reinstatement, subject to conditions, under s 94 of the Act. Draft conditions were handed up to the Tribunal for its consideration by the respondent (NSW Medical Board) (the Board) during the proceedings. · Section 94 of the Act provides: (1) The appropriate review body is to conduct an inquiry into an application for review and may then do any of the following: (a) dismiss the application, (b) by its order terminate or shorten the period of the suspension concerned, (c) make a reinstatement order, (d) make an order altering the conditions to which the person's registration is subject (including by imposing new conditions), (e) by its order terminate or shorten the period of a prohibition order or alter the conditions to which the person is subject under a prohibition order (including by imposing new conditions). (2) A reinstatement order is an order that the person be registered subject to the same conditions and limitations (if any) to which the person's registration was subject immediately before the person ceased to be registered. The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (3) The Board is to cause such recordings to be made in the Register as may be necessary to give effect to a reinstatement order. (4) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. · The Tribunal has been nominated as the "appropriate review body" under s 93 of the Act. · Section 94A of the Act is also relevant to the present application. It provides: (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision, unless significant fresh evidence is produced that was not previously available for consideration, and the appropriate review body is of the opinion that, in the circumstances of the case, the decision to make the order, or any finding on which the decision was based, should be reconsidered. (3) In addition to any other matter that the review may take into account, the review must take into account any complaint made or notified to the Board about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Division 3 of Part 4 or any other action was taken on the complaint. Background to removal from the Register · The applicant was first registered as an intern in New South Wales on 6 January 1997. After completing his internship his registration status became "General" with effect from 18 February 1998. In 2003 he became addicted to codeine. Following a hearing before the Impaired Registrants Panel the applicant agreed to conditions being placed on his registration effective from 4 August 2004. The applicant breached some of those conditions. The Health Care Complaints Commission (HCCC) initiated proceedings, by way of two complaints, before the Tribunal (March 2009 Tribunal). The first complaint alleged breaches of three of the conditions imposed upon the applicant as a result of the hearing before the Impaired Registrants Panel. The second complaint alleged that the applicant suffered from an impairment which detrimentally affects his capacity to practise medicine. · The substance of the first complaint was that the applicant had self-administered a narcotic derivative non-prescription compound analgesic and/or cold medication on 17 occasions between 20 December 2004 and 28 September 2007. According to the March 2009 Tribunal Decision, the drugs detected were morphine trace and on two occasions, pseudoephedrine. It was also alleged, in further breach of conditions, that the applicant, who was required to attend for urine testing thrice-weekly, had provided dilute or very dilute samples on 72 occasions between December 2004 and September 2007 which rendered the tests invalid, and, had failed to forward test results for Carbohydrate Deficient Transferrin (CDT) levels between March 2007 and November 2007 to the Board's nominated psychiatrist. · Before the March 2009 Tribunal, the applicant admitted he had breached the conditions. He attributed his conduct to anxiety and depression. He also said he had a poor attitude caused by negative thought processes and he resented having to conform to the conditions of his registration. A number of adverse findings were made against the applicant, including the finding that he had lied to persons in authority on several occasions over many years. Nevertheless, a number of findings were made in the applicant's favour. Some of those findings appear in the following extract from the March 2009 Tribunal Decision: However the Tribunal has received evidence from Dr Wodak who was retained by the Health Care Complaints Commission. He is an expert in the treatment of alcohol and drug dependence. Dr Wodak is of the view that Mr Martin's prognosis is very positive based on the test results over the last 11 months and the descriptions given by Dr Martin's treating doctors. Dr Pethebridge is the psychiatrist who has regularly reviewed Dr Martin for the Board since July 2004. He is a specialist in the rehabilitation of impaired doctors. He was of the view that the threat of suspension from practice precipitated the changes in Dr Martin's behaviour. Dr Pethebridge believes that Dr Martin's compliance over the past year is a good indication that he has a good prognosis. The regular consultations with his psychiatrist and psychologist have resulted in significant progress, in particular the cognitive behaviour therapy has assisted him to deal with his anxiety. The Tribunal accordingly accepts that over the past 12 months Dr Martin has displayed a significant change in his behaviour and attitude. Over that year he has complied with the conditions on his registration and there is no evidence of his using any substance for which his urine has been tested. · The HCCC had sought orders that the applicant's name be removed from the Register on the basis that his conduct was sufficiently serious to justify that course being taken. Instead, the Tribunal determined that it was appropriate that the applicant be reprimanded and his registration be the subject of conditions to ensure he obtained treatment and in order to monitor his compliance. The three conditions imposed by the Impaired Registrants Panel which the applicant breached were directed to be critical compliance conditions under s 61(3) of the Act. The effect of a direction of this type is that in the event of a finding by a Tribunal that an applicant has contravened a critical compliance condition, the Tribunal must order that the applicant be de-registered under s 64(1A) of the Act. · On 13 May 2009, the Board conducted an interview with the applicant to review the conditions imposed by the March 2009 Tribunal. The report noted that the applicant is drinking no more than two standard drinks of alcohol every two to three weeks and that his CDT testing has remained within the normal range. It also noted that the applicant had been compliant with his conditions, achieving negative urinalysis results, and normal CDT results. It was recommended that no changes be made to the conditions. · On 29 July 2009, the applicant's wife gave birth to their third child. Complications resulting from the birth required medical intervention. The applicant remained at the hospital throughout the day in order to be with his wife. On that day, the applicant was also scheduled to attend for urinary drug testing (UDT) and for an appointment with the Board-nominated psychiatrist, Dr Pethebridge, in accordance with his conditions. It was not until 7 August 2009 that the applicant notified the Board that he had failed to attend for the UDT on 29 July 2009. On 20 August 2009, the Board convened a s 66 Inquiry in order to determine whether the applicant had breached a critical compliance condition (relating to the failure to attend for the UDT). The Inquiry determined that the applicant had breached the condition by reason of his failure to attend for UDT on the required day, and, his failure to notify the Board immediately as required by the Protocol. · These failures reflected a breach of Condition 10, one of the health condition imposed on the applicant by the March 2009 Tribunal. Condition 10 required the applicant: 10. a. To attend for thrice weekly Urine Drug Testing in strict accordance with the NSW Medical Board's protocol (a copy of which is included in the Participant's Handbook). Results of Urine Drug Testing to be forwarded to the Board-nominated and treating practitioners and to the NSW Medical Board. Such Urine Drug Testing to be at Dr Martin's expense. b. If Dr Martin misses a test due to illness and seeks to provide an explanation pursuant to paragraph 3.5 of the NSW Medical Board's protocol, any accompanying medical certificate must be issued by his nominated treating general practitioner or one alternative general practitioner previously approved by the NSW Medical Board. · The Board's Protocol for UDT contained the following relevant information: 2. Collection and Testing Collection and testing must be in accordance with the Australian Standard and meet its chain of custody requirements. The New South Wales Medical Board has some requirements additional to those of the Australian Standard. The New South Wales Medical Board's provider of urine drug testing services is PaLMS (Pacific Laboratory Medicine Services) Toxicology Unit. Contact details for PaLMS Toxicology Unit can be found in the section titled Contact Details . 2.1 Collection Doctors have three options in arranging supervised collection of urine samples: (a) Supervised collection at a PaLMS collection facility. A list of locations is contained in the section titled PaLMS Collection Sites on page 28. (b) Collection supervised by a supervisor approved by the Board, using postage paid collection kits provided by PaLMS to the approved supervisor. (Supervised collection guidelines can be found on page 27 in the section titled Supervised Collection Guidelines ). Kits can be obtained by contacting PaLMS on telephone (02) 9887 5666. You will be invoiced for the collection kits by PaLMS. (c) Collection supervised by another pathology provider approved by the Board. Collection centres of PaLMS' competitors are often prepared to supervise collection, and forward the samples to PaLMS Toxicology Unit for testing. Most pathology providers will have collection kits that satisfy the Australian Standard. 2.2 Testing In accordance with Australian AS/NZS 4308, drugs routinely tested for include cannabis, opiates (morphine and codeine), cocaine, amphetamine and benzodiazepines. In addition, specimens are tested for pethidine, barbiturates and tramadol. In certain cases, a doctor's conditions may require their urine samples be tested for additional drugs. 3. Testing Protocol Doctors undertaking urine drug testing are expected to strictly comply with these requirements. ... 3.2 Thrice-Weekly Testing · Testing is conducted on Monday, Wednesday, Friday of each week. It is not acceptable to present on other days in lieu of routine collection days without prior approval. · The decision to vary testing from thrice-weekly to random can only be made with endorsement from the Board. This decision will be made by considering the recommendations from the Board-nominated practitioner and the Board Review Interview Panel. The decision will also be affected by aspects of the Health Program Decision Parameters , which can be found in Section 6 of this Handbook. ... 3.4 Absence from testing · Doctors are required to advise the Board, in writing, at least five business days before any anticipated absence. [Fax (...) or email (...) notifications are acceptable]. Only under extraordinary circumstances will permission be given for a doctor to abstain from testing on certain days on a routine basis. In those situations the doctor may be required to undertake urine drug testing on the required days when they are available and also undergo an additional monthly hair drug test. · Doctors are required to provide evidence of their absence (eg, copies of boarding passes, hotel receipts). · The doctor is not required to provide a urine sample on a public holiday. 3.5 Misses tests · If a doctor is aware that he or she has missed a test, he/she must immediately notify the Board, in writing and provide an explanation. The doctor may also be contacted by the Board and asked to provide a written explanation. Explanations may be considered by the Health Committee, which may view the matter as a breach of conditions and recommend disciplinary action. · Health Condition 10 constituted a critical compliance condition in accordance with the March 2009 Tribunal Decision. A consequence of this was the applicant's mandatory suspension from the practice of medicine until a complaint concerning the matter is dealt with by the Tribunal: s 66(2) of the Act. Accordingly, the Board suspended the applicant from practising medicine and referred the matter to the Tribunal. · A complaint came before the Tribunal on 27 August 2009 (the August 2009 Tribunal) alleging that the applicant had breached a critical compliance condition, namely, Health Condition 10. The Tribunal found that in failing to attend for the test on 29 July 2009 and failing to notify the Board "immediately" (Protocol 3.5) after becoming aware of the missed test that the applicant had breached a critical compliance condition. An order was made that the applicant's name be removed forthwith from the Register of Medical Practitioners and he not apply for re-registration for a period of four months from the date of the order. · In determining the period of four months during which the applicant could not apply for re-registration, the August 2009 Tribunal took into account a number of factors in the applicant's favour. These included the following matters: The Tribunal observes that the breach of the condition did not indicate relapse but a failure to adhere strictly to the obligations imposed on the respondent that permitted him to continue to practise his profession. It speaks of disorganisation, failure to anticipate and inappropriate response but not relapse. The most recent medical reports on the respondent's progress indicate continuing improvement in his condition, an engagement in the therapeutic process and compliance with treatment. Those with whom he works say that he seems fitter and healthier this year than before. The Tribunal is satisfied that the respondent has been doing well on his current treatment and therapeutic regimes and is continuing to improve. In determining what period of de-registration should be imposed, the Tribunal while acknowledging the seriousness of the breach of the condition, takes into account the continued improvements in the respondent's health and fitness. · Evidence tendered during the present Tribunal proceedings shows that after de-registration between the period 2 September 2009 and 9 December 2009 (when the records end), the applicant underwent monthly UDT through the PaLMS toxicology unit and all the test results for drug detection were negative. Also tendered during the present Tribunal proceedings were the results of hair testing for drug detection from samples collected by Dr James Aitken. The results were set out in Certificates of Analysis for every month commencing from 10 July 2009 until 29 April 2010. All the certificates recorded the non-detection of all drugs the subject of the tests. · During the August 2009 Tribunal's proceedings, the applicant said he had not made any alternative arrangements to undertake the UDT in the event his child was born on a day on which he was required to attend for urinalysis. He told the Tribunal that he had a number of portable urine collection kits at his home in case he ever forgot to attend for testing. He said that he had used the last of these some weeks beforehand and had not replaced them. · This matter was the subject of examination during the present Tribunal proceedings. The applicant explained that he obtained the kits and attended a number of medical centres where he was directly supervised by a medical practitioner at all times when providing the samples. These activities were contrary to the terms of the Protocol which the applicant was bound to follow as part of the conditions imposed upon him by the March 2009 Tribunal. According to the Protocol, collection kits must be provided only to an approved collection supervisor. In his evidence at oral hearing, the applicant said that he had misinterpreted the Protocol by failing to understand that it did not allow for his attendance for the purpose of undertaking UDT at an unapproved medical centre. Dr Aitken had been approved in 2008 by the Board for the purposes of supervision and collection of the urine analysis. Under the Protocol (clause 2.1(b)) the collection kits were to be provided directly to the approved supervisor by PaLMS. · The applicant sought to explain why he had attended at various medical centres and undergone the UDT process in the presence of unapproved medical practitioners. He said he had separated from his wife and was living with his parents at Umina. He was also working at Dural. His wife and children lived at Kellyville at that time. He went to Kellyville several times a week to look after the children. He was supposed to attend the (PaLMS) collection centre at Hornsby but his work commitments and the hours he was required to travel made it difficult to attend the Hornsby Collection Centre which was only open between 9am and 4.30pm. · Under cross-examination, the applicant conceded that he did not have any records of his attendances upon other (non-approved) medical practitioners at other medical centres. He insisted however, that he had attended at those centres and at all times had provided samples under the supervision of a medical practitioner. He said that after receiving a letter from the Board some time in October or November 2009 he realised that he had misunderstood the requirements of the Protocol. He immediately stopped ordering the kits from PaLMS. Relevant principles · The principles relevant to reinstatement may be derived from a number of authorities including Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 448; and, Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58. A useful summary of those principles appears in Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: 1. The purpose of the jurisdiction which is exercised by the Tribunal is not for punishment or further punishment of the former practitioner. Instead the Tribunal's jurisdiction is for the protection of the public which deals with medical practitioners on the basis that they are members of an honourable profession who can be expected without reservation to conduct the affairs of their patients with honour and in whom the patients can place unbounded confidence. What is in question in an application for reinstatement to the Medical Register is whether an applicant is fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence. 2. An applicant who seeks to establish fitness to have his name restored to the Register having been earlier removed from it bears the onus of proving the case. It is a heavy onus and the question whether the applicant is a fit and proper person, is one to be trusted to exercise the high responsibilities of the profession is one to be determined on solid and substantial grounds and as an applicant for reinstatement to the Medical Register he is in a more disadvantageous position than an original applicant. He must in effect displace the decision for deregistration which has been made. That decision involves the judgment that the applicant is probably permanently unfit to have his name on the Register. As a consequence, presumptions of fitness which might arise otherwise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness. 3. The ultimate issue is whether the Tribunal can conclude on the basis of all the evidence that an applicant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the medical profession, what is at stake is not so much the reputation of the applicant but the Tribunal's assessment of his character, uprightness, honour and trustworthiness. In the case of some offences committed over an extended period with deliberate intent and resulting in serious distress to patients it will be very difficult to contemplate any circumstances in which the name of the offender will be restored to the Register. 4. It is not a question of what an applicant has suffered in the past. It is a question of his worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession. It is difficult to decide what a man will do in the future and the decision in a particular case is to a greater or lesser extent dependant upon the Tribunal's assessment of the applicant. In making that assessment, it may draw inferences from what he has done in the past, and in particular, what led to his being removed from the Register. An understanding of that may assist the Tribunal to determine what are his standards and his understanding of a practitioner's responsibility, and from this, what he is apt to do in the future. Where what has been done in the past has been sufficient to indicate his probably permanent unfitness the Tribunal will require solid and substantial grounds for the conclusion that his standards have changed, his character has been reformed and that he will act honourably." Deliberation · The purpose of the jurisdiction which the Tribunal exercises on the present application is to ensure the protection of the public. The question to be addressed is whether the applicant now is a fit and proper person to take his place once again within the medical profession, that is, as a person worthy of the confidence of his peers, his patients and the community at large: see Dawson at p 13 per Mahoney JA (in the majority). · A number of submissions were made on the applicant's behalf in support of his application for reinstatement. It was sought to be emphasised that his de-registration by the August 2009 Tribunal was because of a breach of a critical compliance condition, which arose from his failure to provide a urine analysis on one occasion, and waiting nine days before notifying the Board. In making the order, however, the August 2009 Tribunal noted that the breach of the condition did not indicate a relapse but a failure to adhere strictly to the obligations imposed upon the applicant. · The present Tribunal infers from the submission that the August 2009 Tribunal viewed the conduct, the subject of the breach, as being of a lesser order of magnitude than earlier conduct. Such an inference is available from the distinction drawn by the August 2009 Tribunal between conduct amounting to a relapse and conduct that may be characterised as, "disorganisation, failure to anticipate and inappropriate response". The evidence during the present proceedings also indicates that the conduct in question constituted a single isolated instance which occurred in unusual circumstances, namely, during the birth of the applicant's third child and subsequent complications which arose from the delivery requiring medical intervention. Other than that one instance in July 2009, it appears that the August 2009 Tribunal accepted that the applicant had been complying with the requirement to undergo thrice-weekly urinalysis from March 2009. · In addition, the March 2009 Tribunal acknowledged and accepted medical reports that the applicant's prognosis was good and that he had made significant progress, and had displayed within a 12-month period prior to the hearing, "a significant change in his behaviour and attitude". It was accepted by the March 2009 Tribunal that the applicant has, "complied with the conditions of his registration and there is no evidence of his using any substance for which his urine has been tested". · Similar sentiments were expressed by the August 2009 Tribunal. It was observed for example that the applicant was, "doing well on his current treatment and therapeutic regimes and is continuing to improve". Significantly, the decision of the August 2009 Tribunal to determine a period of de-registration of four months expressly took into account the applicant's continued improvements in his health and fitness. · The applicant also produced documents which disclose that he has been undertaking a regime of testing for drug detection on a monthly basis since August 2009 and the results have all been negative, that is, no drugs for which he has been tested have been detected. · According to the applicant, these matters reveal that his earlier problems of drug dependency have long been successfully addressed and that he has made a remarkable "turn-around", and continues to improve. · The Board, in submissions, while not expressly opposing an order for reinstatement, directed the Tribunal to a number of matters which it emphasised should be taken into account as matters of some weight. · A key factor, according to the Board, in the consideration of whether the public will be adequately protected if the applicant is reinstated is whether the Tribunal can be reasonably satisfied that the applicant will comply with any conditions imposed on his registration. In this regard, it was submitted that the applicant's history of compliance was "troubling". · One aspect of that history, it was said, concerned the applicant's conduct after the March 2009 Tribunal Decision during which he continued to seek and obtain collection kits, contrary to the Protocol. Another troubling feature was said to concern his failure to produce any records of any medical practitioners from the medical centres that the applicant maintained he had attended at those times when he had difficulty attending the Board-approved collection centre. · Notwithstanding the applicant's evidence that he misinterpreted the Protocol, the terms of the Protocol are clear, according to the Board, and the purpose of the Board's regime, set out in that Protocol, is obvious. That purpose is not carried into effect by a breach in the chain of custody. Arranging to have collection kits sent to his home, not attending a PaLMS collection facility, and using an unapproved medical practitioner, for which there are no records, fundamentally misunderstands, it was said, the nature of the system and reflects an attitude which would give rise to concerns about future compliance. The Board also reminded the Tribunal that the advice by the applicant at the s 66 Inquiry (that he had collection kits sent to his home) does not shift the onus onto the regulators to prevent him from breaching the Protocol. · The Tribunal agrees with the Board that its concerns have some foundation. Given the clear terms of the Protocol, the applicant's explanation that he misinterpreted the terms of the Protocol when arranging to have the collection kits sent to his home address is somewhat difficult to accept. Nevertheless, the Tribunal did not understand the Board to be suggesting that the applicant had sought to deliberately mislead the present Tribunal when he said that he had misinterpreted the Protocol. Certainly, no submission was made to that effect. The highest it was put by the Board was that the applicant's explanation indicated, "a troubling approach". In any event, there was no attempt on the applicant's behalf to mislead the August 2009 Tribunal when he candidly admitted that he used home collection kits. The applicant informed the present Tribunal that he now fully understands and appreciates the requirements of the Protocol. The Tribunal, having heard the applicant, accepts this to be the case. · In assessing whether the applicant is a fit and proper person eligible for reinstatement two important questions need to be addressed. The first is, what was the conduct which led to his de-registration. The second is, does the applicant fully accept and appreciate what is required of him to appropriately discharge the duties of his profession and to act in a manner that preserves the good reputation of that profession. This is not to say that these are the only two questions which need to be addressed on the issue. A number of other relevant matters have already been considered. Much of the subject matter relevant to the two questions identified above has also been addressed. · The conduct which led to the applicant's de-registration involved an isolated act consisting of two components, one that he did not attend on the required occasion for urinalysis and the other that he did not "immediately" notify the Board of his failure to attend. The August 2009 Tribunal considered this conduct and ordered the applicant's de-registration because it constituted a breach of a critical compliance condition. In so doing, the August 2009 Tribunal was satisfied that the conduct did not constitute a relapse but rather was explicable in terms of disorganisation, a failure to anticipate and an inappropriate response. This characterisation of the conduct by the August 2009 Tribunal renders the conduct less serious than conduct which is deliberate or which occurs over a prolonged and consistent period. · As to the second question, the Tribunal is satisfied that the applicant now fully accepts and understands what is required of him to appropriately discharge the duties of his profession and to act in a manner that preserves the good reputation of his profession. Both the March 2009 and August 2009 Tribunals acknowledged the applicant's continuing improvements in his behaviour and attitude. The applicant, in evidence before the Tribunal, expressed his willingness to conform to, and accept, the set of proposed conditions handed up to the Tribunal by the Board during the proceedings. His conduct in voluntarily subjecting himself to a lengthy and unbroken regime of drug testing following his de-registration, and the results of that testing, tend to confirm that evidence. The applicant, in evidence, also said that he now fully understands the requirements of the Protocol having looked at it in detail with other persons. He concedes that he should have taken this step after the Decision of the March 2009 Tribunal. He acknowledges that he did not comply with the Protocol prior to August 2009. · Taking all these matters into consideration, the Tribunal is satisfied on the balance of probabilities that the applicant is a fit and proper person to have his name restored to the Registrar. His re-registration, however, will be subject to conditions in accordance with the Orders to be made by the Tribunal. · It was submitted by the Board that two of the proposed private conditions should be made critical compliance conditions. These proposed conditions are Conditions 11 and 12. Condition 11 seeks to impose a requirement for monthly hair drug testing. Condition 12 requires monthly blood samples to ascertain CDT levels. Some opposition to this proposed course was expressed on behalf of the applicant. It was submitted that elevating the two conditions to critical compliance conditions would be "overkill". The submission was not developed in relation to Condition 11. With regard to Condition 12, it was contended that there is no suggestion that the applicant has any outstanding issues with alcohol (the presence of which a CDT test would detect). · According to the Board, Condition 11 was initially imposed by it because of concerns that there were a number of dilute urine samples provided by the applicant which may or may not have been affected by the consumption of poppy seeds. Monthly hair drug testing would provide more certainty. A breach of the condition, if it were made a critical compliance condition, would serve to "bolster the regime". · One aspect of the evidence before the March 2009 Tribunal concerned the applicant's provision of dilute urine samples in 2006 and 2007. The applicant had written to the Board and explained that his ingestion of a vitamin B supplement was responsible for making his urine dark yellow. He had no explanation for the dilute samples, but said he would no longer drink fluid on the day of the test before providing a sample. In evidence before the March 2009 Tribunal, the applicant admitted that he had deliberately misled the Board. He had no intention of cutting down his fluid intake and had continued to drink the same level of fluid. In imposing a condition that the applicant undergo Hair Drug Testing, the March 2009 Tribunal had in mind two matters. First it was an acceptable alternative test in the event the applicant missed a urine test. Secondly, because the urine test results could be significantly delayed, it was not desirable that it be the only test. · These considerations are reflected in the proposed draft conditions handed up to the present Tribunal, which include conditions requiring thrice-weekly UDT (a proposed critical compliance condition about which there is no dispute), and proposed Condition 11. · Following the March 2009 Tribunal decision, there has been no evidence or other material which might indicate that the applicant has provided dilute samples of urine. On the other hand, there was evidence that the applicant had, up to August 2009, contrary to the terms of the Protocol, arranged to have collection kits delivered to his home, attended upon unapproved medical practitioners in order to provide samples and failed to obtain records of those attendances. Although the applicant has assured the Tribunal that he now fully understands the terms of the Protocol, and the importance of strictly complying with it, the Tribunal is inclined to agree with the Board's contention that elevating proposed Condition 11 to a critical compliance condition with its attendant consequences would serve to "bolster the regime" in which the applicant will be required to participate, in accordance with his conditions. Accordingly, proposed Condition 11 will be made a critical compliance condition. · As for Condition 12, no evidence was advanced which might justify, or otherwise make explicable, its elevation to that of a critical compliance condition. There has been no suggestion on the evidence, and no submissions made to this Tribunal, regarding the applicant's compliance with CDT testing for the purposes of alcohol detection. There was some evidence that the applicant consumes small quantities of alcohol. There was no evidence of any recent history of non-compliance with any conditions associated with the provision of blood samples for the purpose of detection of levels of alcohol. Given these matters, the Tribunal declines to make proposed Condition 12 the subject of critical compliance. · Under s 94(4) of the Act an order for reinstatement made under s 94(1)(c) may also provide that the order not be reviewed until after a specified time. The Board sought a period of 12 months as the nominated specified time. The applicant sought a period of six months. The longer period sought by the Board was explained on the basis that a six-month period was "too short" bearing in mind that there have been three Tribunal hearings in relation to the applicant within the last 12 months, and because there is "sufficient concern" with regard to the matters of collection kits and supervision of the samples provided by the applicant following the March 2009 Tribunal hearing. · Given the time that has elapsed from the expiration of the four months period of de-registration ordered by the August 2009 Tribunal, it is the present Tribunal's view that a period of 9 months as the nominated specified period under s 94(4) is sufficient time in which to address the concerns raised by the Board. Since the August 2009 Tribunal hearing, the applicant has entered into a regime of drug testing on a consistent basis and the tests have, without exception, been consistent with an absence of drug taking. The applicant has also indicated his willingness to abide by the draft conditions handed up by the Board. These matters suggest a firm resolve on the applicant's part to re-enter his chosen profession and to discharge the duties and responsibilities of that profession, which include the maintenance of proper ethical and professional standards expected of all medical practitioners. · The Board also requested that the Tribunal exercise its powers under s 93 of the Act and make an order that it be the "appropriate review body". The Tribunal intends to make the order. This will allow the Board to exercise a range of procedures in relation to impaired registrants which will involve regular reviews, by way of reports from psychiatrists and others, and to consider the applicant's compliance with the conditions. Orders · The Tribunal makes the following orders: (1) That the applicant, Jason Martin, be reinstated forthwith to the Register in accordance with s 94(1)(c) of the Act. (2) That the applicant's registration be subject to the following conditions: Critical Compliance (Public) Condition - pursuant to section 61(3) Medical Practice Act 1992 (NSW): 1. a. Not to prescribe, possess, supply, administer, handle or dispense any drug of addiction (Schedule 8 drug). b. To make any application for change in his Schedule 8 authority in accordance with the Board's protocol. This must include consultation with the Board prior to the submission of any variation application to the Pharmaceutical Services Branch of the NSW Health Department. A contravention of this condition will result in him being deregistered. Critical Compliance (Private) Conditions - pursuant to section 61(3) Medical Practice Act 1992 (NSW): 1. To not prescribe for self-medication. A contravention of this condition will result in him being deregistered. 2. Not to self-administer: a. any Schedule 4 or 8 drug. b. any narcotic derivative, non-prescription compound analgesic or cold medication. Such medications must only be prescribed and taken at the direction of his treating practitioners. A contravention of this condition will result in him being deregistered. 3. a. To attend for thrice weekly Urine Drug Testing in strict accordance with the Board's protocol. Results of Urine Drug Testing to be forwarded to the Board-nominated and treating practitioners and to the Board. Such Urine Drug Testing to be at his expense. b. To provide a medical certificate issued by his nominated treating general practitioner or one alternative general practitioner previously approved by the Medical Board if he misses a test due to illness and seeks to provide an explanation pursuant to paragraph 3.5 of the Board's protocol. A contravention of this condition will result in him being deregistered. 4. To attend for monthly Hair Drug Testing at a facility approved by the Board. The results of all tests to be forwarded to the treating and Board-nominated practitioners and to the Board. Such Hair Drug Testing to be at his expense. A contravention of this condition will result in him being deregistered. Public Conditions 2. Not to undertake solo general practice work. 3. To advise the Board prior to changing the nature or place of his practice. 4. To authorise the Board to notify any prospective employer(s) of his Public Conditions. 5. To notify the principal of the Practice or employer and any other practitioner who may be working on site with him of these Public Conditions and to forward to the Board within 7 days of commencing practice, a copy of these Public Conditions signed by the employer and each one of these practitioners. Private Conditions 5. To attend for treatment by a general practitioner of his choice, at a frequency to be determined by him and the treating practitioner. To authorise the treating practitioner to inform the Board of any failure to attend for treatment or termination of treatment, or if there is any significant change in health status (including a significant temporary change). 6. To notify the Board-nominated psychiatrist and the Board, should he be prescribed or directed to take: a. any Schedule 4 or 8 drug. b. any narcotic derivative, any non-prescription compound analgesic or cold medication. In addition, within seven days of such prescription or direction, he must provide the Board with written confirmation of such treatment from the treating practitioner. 7. To limit his alcohol intake to social consumption, defined by the Board 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. 8. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To notify the Board of the name of his treating psychiatrist within two weeks of any change of treating psychiatrist. To authorise the treating psychiatrist to inform the Board of any failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 9. To continue taking any medication prescribed by his treating psychiatrist. 10. To attend for treatment by a psychologist of his choice, at a frequency to be determined by the treating practitioner. To notify the Board of the name of his treating psychologist within two weeks of any change of treating psychologist. To authorise the treating practitioner to inform the Board of any failure to attend for treatment or termination of treatment, or if there is a significant change in health status (including a significant temporary change). 11. The extent of his professional medical duties is to be guided by his health status and the advice of his treating and Board-nominated practitioners. 12. To have blood taken for measurement of Carbohydrate Deficient Transferrin (CDT) levels at monthly intervals in strict accordance with the Board's protocol. The results of all tests to be forwarded to the treating and Board-nominated practitioners and to the Board. Such testing to be at his expense. 13. To authorise the facilities undertaking the testing set out in Private Conditions 3, 4 and 12 to provide the results of the tests to the Board-nominated practitioners and to the Board. To authorise the facilities, on receiving a request from the Health Care Complaints Commission, to provide the results of the tests to the Health Care Complaints Commission. 14. To attend for review by the Board-nominated psychiatrist, initially on a three monthly basis, and subsequently as directed by the Board, at the Board's expense. 15. To attend a Review Interview at the Board in three months or as otherwise directed by the Board. 16. To authorise the Board to forward copies of any Board Review Interview reports and other information relevant to his impairment to the Board-nominated practitioners and his treating practitioners. To notify the Board immediately of any change in treating practitioners so that copies of these documents may be provided to them. (3) These conditions may be reviewed at the expiration of 9 months from the date of the order for reinstatement. (4) That the appropriate review body be the NSW Medical Board (now known as the Medical Council of NSW (the Council). (5) That the applicant pay the respondent's costs of this application. ___________________ 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.