New South Wales Medical Tribunal CITATION : Re the Medical Practice Act 1992 and Dr Michael Ivan Davis. [2002] NSWMT 6 TRIBUNAL : Medical Tribunal PARTIES : DR. MICHAEL IVAN DAVIS FILE NUMBER(S) : 40013 of 2002 CORAM: Solomon DCJ - Ilbery, Dr K - Pasfield, Dr M - Gray, Ms A CATCHWORDS: LEGISLATION CITED: CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 6 September 2002 JUDGMENT: SUPPRESSION ORDER PURSUANT TO CLAUSE 6 OF SCHEDULE 2 OF THE MEDICAL PRACTICE ACT, 1992. FILE NO: 40013 OF 2000 RESPONDENT: DR. MICHAEL IVAN DAVIS DECISION DATE: 6 SEPTEMBER 2002 THE TRIBUNAL ORDERS THERE BE NO PUBLICATION OF THE NAMES OF PATIENTS A AND B OR ANY MATERIAL CAPABLE OF IDENTIYING THEM. IN THE MEDICAL TRIBUNAL OF NEW SOUTH WALES. THE MEDICAL PRACTICE ACT, 1992. DEPUTY CHAIRPERSON: HIS HONOUR JUDGE R.H. SOLOMON MEMBERS: DR. KATHERINE ILBERY DR. MICHAEL PASFIELD MS. ANNETTE FRANCES GRAY NO. 40013 OF 2000 DR. MICHAEL IVAN DAVIS REASONS FOR DETERMINATION DATED 6 SEPTEMBER 2002 This is an enquiry into two Complaints by the Commissioner of the Health Care Complaints Commission ("the Complainant") against Dr. Michael Ivan Davis ("the Respondent"). The first Complaint is that the Respondent suffers from an impairment within the meaning of clause 3 of the dictionary of the Medical Practice Act ("the Act") in that: 1. The practitioner suffers from a physical or mental disorder, namely addiction to a deleterious drug, which detrimentally affects or is likely to detrimentally affect his physical or mental capacity to practise medicine. The second Complaint is that the Respondent has been guilty of professional misconduct and/or unsatisfactory professional conduct within the meaning of section 36 and 37 of the Act, in that the Respondent: 1. Has demonstrated a lack of adequate knowledge, skill, judgment and/or care in the practice of medicine; and/or 2. Has been guilty of improper and unethical conduct related to the practice of medicine. Particulars of Complaint Two 1. The practitioner falsely reported to the Police that he had been assaulted in an attempt to conceal his self administration of a drug of addiction; 2. On 27 August 1997, the practitioner provided false and misleading information to an officer of the Pharmaceutical Services Branch of New South Wales Department of Health in that he: a) Falsely claimed that he had been assaulted and an attempt had been made to strangle him whilst in his surgery, and b) Denied that the NSW Medical Board had placed any restriction on his registration with respect to the possession, supply or prescription of schedule 8 drugs of addiction. 3. On 13 December 1996 the practitioner provided false and misleading information to a Board Review Panel of the New South Wales Medical Board in that he: a) Stated to the Board of Review Panel that he no longer carried opiates with him or stocked opiates at his surgery in circumstances where he had taken possession of a doctor's bag order for morphine on 25 November 1996 and 30 December 1996. 4. The practitioner prescribed and or supplied drugs of addiction to Patients A and B on the dates and in the quantities summarised in Schedule A to this Complaint in contravention of Section 28 of the Poisons Act 1996 in that he failed to obtain the authority of the Director-General to prescribe drugs of addiction to these patients for continuous therapeutic use for periods exceeding two months. 5. The practitioner breached conditions imposed on his registration in that he: a) Possessed and handled drugs of addiction, on the dates and in the quantities summarised in Schedule B to this Complaint, in contravention of the condition that he did not possess, handle or administer Schedule 8 drugs. 6. The practitioner provided false and misleading information to subsequent Board Review Panels and the Board nominated psychiatrist on the following occasions: a) To Dr. John Woodforde, the Board nominated psychiatrist, at his review of 18 September 1997; b) To the NSW Medical Board at the reviews of 19 December, 1997, 18 December 1998 and 9 December 1999; by stating that he no longer used narcotics when in fact had had self-administered narcotics on numerous occasions between the period May 1996 and August 1997. UNSATISFACTORY PROFESSIONAL CONDUCT Section 36 of the Act sets out the matters which constitute unsatisfactory professional conduct, it relevantly includes: "(a) Any conduct that demonstrates a lack of adequate, knowledge, skill, judgment or care by the practitioner in the practice of medicine;" and "(b) Any other improper or unethical conduct relating to the practice or purported practice of medicine". PROFESSIONAL MISCONDUCT Section 37 of the Act set out the meaning of "professional misconduct" as being: "Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register." ONUS AND STANDARD OF PROOF The Complainant bears the onus of proving the truth of the allegations contained in the Complaint to the Tribunal's comfortable satisfaction on the balance of probabilities. (See Briginshaw v. Briginshaw (1938) 60 CLR 336 at 361 and 362, Reifek v. McRElroy (1965) 112 CLR 517 at 521 and Bannister v. Walton (1994) 30 NSWLR 699 at 711 and 712). The Complainant on the whole of the evidence is required to comfortably satisfy the Tribunal that one or more of the allegations contained in the Complaints have been established. Each allegation must be considered separately by the Tribunal to determine whether a breach of s.36 or s.37 of the Act has been established to the requisite standard of proof. RESPONSE OF THE RESPONDENT TO THE COMPLAINTS COMPLAINT ONE The Respondent in his Statement dated 26 April 2002 (Exhibit R1) and his evidence admitted that between May 1993 and November 1993 and between a date in 1996 and March 2001 he abused and subsequently became addicted to various drugs including cocaine and morphine. The Respondent has submitted that he is on the road to recovery and that he remains and will continue to be vulnerable to drug abuse. COMPLAINT TWO The Respondent in his Statement (Exhibit R1) and through his Counsel admitted the allegations contained in the Particulars and the Schedule annexed hereto marked "A". GENERAL BACKGROUND OF THE RESPONDENT The Respondent was born on 15 September, 1953. The Respondent obtained a Bachelor of Science degree in 1977, a Bachelor of Engineering degree in 1978 and a Master of Applied Science degree in 1981. Following graduation the Respondent worked as a consulting engineer and in 1983 decided to undertake medical studies. The Respondent resat his Higher School Certificate in 1983 and gained entry to the MB.BS course at the University of New South Wales. The Respondent graduated from MB.BS course in 1990. The Respondent during 1990 completed his internship at the Prince of Wales Hospital, the Bankstown Hospital and the Liverpool Hospital. Upon completing his internships the Respondent joined his father Dr. Ivan Davis in general practice in Double Bay. Dr. Ivan Davis died in February 1996. The Respondent worked in the family general practice at Double Bay until 6 April 2001 when he was suspended from the practice of medicine by an Order of the New South Wales Medical Board ("the Board") made pursuant to s.66 of the Act. THE HISTORY OF THE RESPONDENT'S SUBSTANCE ABUSE In about May 1993 the Respondent began to use the drug cocaine which he obtained by way of a prescription. Initially the Respondent inhaled the cocaine and at a later stage the Respondent injected the substance. In November 1993 the Respondent's wife became aware of the fact that the Respondent injected cocaine. The Respondent was subsequently admitted to the Rose Bay Private Hospital on the referral of Dr. Robert Hampshire. The Respondent was a patient at the Rose Bay Private Hospital for a period of two weeks. In April 1994 the Respondent self-administered morphine. In June 1995 the Respondent self-administered heroin. In late 1996 the Respondent administered morphine and pethidine injections to Patient A and at the same time the Respondent self-administered morphine and pethidine. Between 1996 and March 2000 the Respondent obtained drugs from a variety of sources. The Respondent on occasions diverted drugs which were intended for his patients to his own use and on other occasions when assisting in operations stole drugs from the operating theatres. The Respondent's use of narcotic drugs between 1996 and September 1999 was intermittent. However, between September 1999 and March 2001 the Respondent injected himself with narcotic drugs daily. On 13 March 2001 the Respondent presented as a voluntary patient to St. John of God Hospital. THE MEDICAL BOARD SUPERVISION OF THE RESPONDENT In November 1993 the New South Wales Medical Board arranged for the Respondent to be assessed by Dr. Michael Diamond, psychiatrist. In December 1993 the Respondent was interviewed by members of an Impaired Registrants Panel. In 1994 Dr. John Woodforde, psychiatrist, was appointed by the New South Wales Medical Board to replace Dr. Diamond as the Respondent's assessor. During 1994, 1995 and 1996 the Respondent was regularly assessed by Dr. Woodforde and reviewed by various Impaired Registrants Panels. STEPS TAKEN BY THE RESPONDENT REGARDING REHABILITATION From the time the Respondent was hospitalised at the St. John of God Hospital on 13 March 2001 to the present the Respondent has undertaken rehabilitation. The Respondent at the St. John of God Hospital participated in an intensive detoxification and rehabilitation programme and was placed under the care of Sarah Mabbutt, a Drug and Alcohol Counsellor, who was appointed as the Respondent's Case Manager. Ms. Mabbutt in her report of 24 April 2002 (Exhibit R 2(B) opined that during his time at the Hospital the Respondent gained an understanding and developed insight into his behavioural problems which assisted him in understanding his addiction. Further, Ms. Mabbutt in her report set out the steps taken by the Respondent after his discharge from the St. John of God Hospital to rehabilitate himself. Those steps included the Respondent attending the St. John of God "Day Programme" on seventy occasions and the Respondent regularly attending Narcotics Anonymous meetings. Ms. Mabbutt referred the Respondent to David Brennan, psychologist, for ongoing therapy. The Respondent has consulted with Mr. Brennan on thirteen occasions, the first consultation being held on 30 May 2001 and the last consultation being held on 20 March 2002. Mr. Brennan in his undated report (Exhibit R 2(C) opined: "I have worked with hundred of drug addicted persons over the years, and have a keen awareness of their ability to deceive persons around them concerning their drug usage. However, I believe the changes Dr. Davis displays in his life to be genuine, as I witnessed him progress from a man who initially was being compliant after been caught in his narcotics use, to becoming a man who had a strong desire to understand himself and change his behaviour in order to rebuild his life. Example of this were his open and honest attitude during counselling sessions with me, his involvement in St John of God outpatient groups for nine months several times a week as well as their Thursday evening groups, and his attendance at Narcotics Anonymous groups. He also participated in a weekend workshop I conducted on personal development and was an active participant." The Respondent in January 1994 came under the care of Dr. Jonathon Phillips. On Dr. Phillips' recommendation the Respondent sought the assistance of the Board in relation to his drug problem though the Board's Impaired Registrants programme. Dr. Phillips has remained the Respondent's treating psychiatrist to the present. In March, 2002 the Respondent attended upon Dr. Jonathon Phillips and provided to Dr. Phillips a comprehensive history which, interalia, set out the extent of the Respondent's use of drugs of addiction. Dr. Phillips in his report of 5 April 2002 opined: "Dr. Davis had not until recently, provided me with a comprehensive history of his drug abuse. He has now given a chronology of his drug use, as detailed above. He has also provided me with information that he had, at time, substituted urine samples in the hope of avoiding detection. Assuming Dr. Davis' chronology is correct, he reached a watershed at the time of his admission to St John of God Hospital in 2001. On his description he has not self-administered drugs of addiction since then. He is continuing in an appropriate treatment programme. He is doing his best to re-establish a sound family lifestyle. He is studying at university, perhaps with thoughts of a change in career. If it were not for Dr. Davis' preparedness to provide a chronology of drug usage in March, 2002 and the apparent success of his treatment programme through St. John of God Hospital, I would do little other than continue to provide episodic psychotherapeutic support. Particularly, I would not wish to provide the Tribunal with supportive information. However, on the balance of probabilities, Dr. Davis is now managing to avoid use of addictive drugs and is keen to maintain his abstinence. I view this change in his attitude and his direction in life, as the first significant step towards recovery." Dr. Phillips gave evidence to the Tribunal on 1 May 2002 and 29 July 2002. Dr. Phillips on each occasion was supportive of the Respondent being permitted to practise medicine provided the Respondent's right to practise was subject to stringent conditions. The Complainant provided to the Tribunal a list of suggested conditions of practice which could be imposed by the Tribunal in the event of the Tribunal permitting the Respondent to practise medicine. Dr. Phillips had the opportunity of perusing the suggested conditions of practice and gave evidence that the Conditions were appropriate subject to minor amendments. On 2 May 2002 the Respondent agreed to undertake a rigorous programme of urinalysis. The Tribunal is in receipt of the urinalysis results prepared by the Toxicology Unit of the Pacific Laboratory Medicine Services up to 19 July 2002. No illicit drugs were detected by the Toxicology Unit except for a trace amount of morphine which was found in the urine sample obtained on 31 May 2002. The Tribunal heard evidence from Dr. Judith Perl, a forensic pharmacologist. Dr. Perl's evidence was to the effect that the trace amount of morphine detected in the Respondent's urine was consistent with food ingestion. The Complainant did not call evidence to refute Dr. Perl's evidence. The Tribunal finds that the Respondent from the time of his hospitalisation at the St. John of God on 13 March 2001 has made satisfactory progress in his drug rehabilitation. THE FINDINGS OF THE TRIBUNAL AS TO COMPLAINT ONE The Complainant alleges that the Respondent presently suffers from an impairment within the meaning of Clause 3 of the Dictionary contained in the Act, that is, that the Respondent presently suffers from a physical or mental disorder, namely addiction to a deleterious drug. The Tribunal finds that in light of the evidence presented to it regarding the favourable results of the testing of the Respondent's urine samples to 19 July 2002 that the Complainant has not proven on the balance of probabilities to the comfortable satisfaction of the Tribunal that the Respondent presently suffers from an impairment. THE FINDINGS OF THE TRIBUNAL AS TO COMPLAINT TWO The Complainant and the Respondent have presented to the Tribunal a Statement of Agreed Facts in relation to Particulars 1 and 2 of Complaint Two. The Agreed Facts are as follows: 1. On an occasion prior to November 1993, the Respondent made a report to Rose Bay Police that he had been assaulted. The report was false. 2. On 17 November 1993, the Respondent was assessed by Dr Michael Diamond, psychiatrist. 3. In a report dated 22 November 1993, addressed to the New South Wales Medical Board, Dr. Diamond stated as follows: "In a frank discussion about his escalating drug use he told me of a scenario where he was attempting to inject himself intravenously late at night in his consulting rooms. The vaso-constricting effect of the cocaine made it more and more difficult for him to inject directly into a vein despite the fact that he was attempting to use the external jugular vein. The result of this was that he had multiple puncture marks and bruises around his neck and when he had realised the damage that he had done he concocted a story to explain his neck injury by informing Police that he had been assaulted." 4. On 27 August 1997, the Respondent met with Ken Thompson and Bruce Battye, officers of the Pharmaceutical Services Branch of the Department of Health for the purpose of answering questions put by the officers in relation to certain prescribing. 5. During the interview, the Respondent said the following to the officers: "There was an incident 5 or 6 years ago when I was assaulted. My wife did not want me to go to the surgery after hours. So I rarely go to the surgery after hours. I was nearly strangled." 6. The Respondent's assertion that he had been assaulted and that he had been nearly strangled was false. 7. In a letter to Health Care Complaints Commission dated 20 August 1999, the Respondent admitted through his solicitors that he had falsely stated to the officers of the Pharmaceutical Services Branch that he had been assaulted and strangled. He admitted that this false claim repeated the claim made to Rose Bay Police referred to in paragraph 1. 8. On 21 December 1993, during an interview with an Impaired Registrants Panel of the New South Wales Medical Board, the Respondent agreed that certain conditions be place on his registration, including the condition that he not possess, handle or administer Schedule 8 drugs. The condition was continuously imposed on the Respondent's registration from 21 December 1993 and was effective at the time he was interviewed by officers of the Pharmaceutical Services Branch on 27 August 1997. 9. During the interview, at a time following an offer by the Respondent to relinquish his authority to possess and prescribe drugs of addiction, the following questions and answers were made: Thompson: "Has the Medical Board place any restriction on your possession and prescription of S8 drugs?" Davis: "I voluntarily, in the light of the incident several years ago, gave up my right to administer S8 drugs. This was after being almost strangled." Thompson: "There is no restriction on prescribing or possession?" Davis: "It was voluntary. I gave an undertaking not to administer. The vast majority of times I would not administer." Thompson: "I am sorry, but you aren't answering my question. Has the Medical Board placed any restriction on your possession, supply or prescription of drugs of addiction? Yes or no." Davis: "No." The Respondent has admitted the allegations contained in Particulars 3,4,5 and 6 of the Amended Complaint. The Tribunal finds, in light of the admissions made by the Respondent regarding Particulars 1,2,3,4,5 and 6 of the Amended Complaint that the Respondent's conduct as alleged by the Complainant amounts to unsatisfactory professional conduct under S.36 of the Act and that such conduct amounts to professional misconduct under S.37 of the Act. THE FINDINGS OF THE TRIBUNAL REGARDING THE RESPONDENT'S PROFESSIONAL MISCONDUCT The Tribunal accepts the opinion of Dr. Jonathon Phillips that the Respondent's conduct as particularised in Complaint Two was the product of the Respondent's drug addiction. The Tribunal in the exercise of its protective jurisdiction has considered: 1. The protection of the public; 2. The risk of the Respondent misusing deleterious drugs; 3. The maintenance of the standards of the Medical Profession; 4. The maintenance of public confidence in the Medical Profession. ORDERS OF THE TRIBUNAL 1. That the following conditions be imposed on the Respondent's registration as a medical practitioner: 1. That the Respondent is not to prescribe for self-medication. 2. That the Respondent is not to self-administer any substance detailed in Schedule 4 or 8 of the NSW Poisons List or Schedule 1 of the Drugs Misuse and Trafficking Act unless prescribed by a treating practitioner. The Respondent is to notify the Board-nominated psychiatrist and the Board of any illness requiring the administration of any such medication and is to provide the Board with written confirmation from the treating practitioner of any such treatment within seven days of the prescription being written. 3. That the Respondent is not to self-administer any narcotic derivative, non-prescription compound analgesic or cold medication unless prescribed and taken at the direction of a treating practitioner. The Respondent is to notify the Board-nominated psychiatrist and the Board of any instance of illness requiring the administration of the medications described above and is to provide the Board with written confirmation from the treating practitioner of such treatment within seven days of the prescription being written. 4. The Respondent is to attend the Doctors in Recovery Group at Northside Clinic on a fortnightly basis, at a minimum. 5. That the Respondent is to attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist, and is to authorise the treating psychiatrist to inform the Board of failure to attend for treatment, termination of treatment or if there is a significant change in health status. 6. The Respondent is to attend for treatment by a general practitioner of his choice, at a frequency to be determined by the Respondent and the treating practitioner. Within fourteen days, the Respondent is to inform the Board of the name of the General practitioner and is to advise the general practitioner of each of the conditions placed on his practice, and is to authorise the general practitioner to inform the Board of failure to attend for treatment, termination of treatment or if there is a significant change in health status. 7. That the Respondent is to attend for thrice weekly Urine Drug Screening in strict accordance with the protocol published by the NSW Medical Board. He is to authorise that the result of Urine Drug Screening to be forwarded to the Board-nominated and treating practitioners and to the Board. Such Urine Drug Screening is to be undertaken at the practitioner's expense. 8. That the Respondent is to attend for review by a psychiatrist nominated by the Board, initially at a frequency of once every three months, and thereafter at a frequency determined by the Board, such review to be at the Board's expense. 9. The Respondent is to consent to the withdrawal of the authority to possess, prescribe, supply or administer Schedule 8 drugs by the Pharmaceutical Services Branch (should this not already have occurred) and that the practitioner not make application for return of the authority unless and until all other conditions of his entitlement to practice are removed. 10. The Respondent is to consent to the withdrawal of the authority to possess, prescribe, handle or administer Schedule 4 Appendix D drugs by the Pharmaceutical Services Branch (should this not already have occurred) and that the practitioner not make application for return of the authority unless and until all other conditions on his entitlement to practice are removed. 11. The Respondent is not to work in a hospital position. 12. The Respondent is to work only in a group practice (group may be defined as at least 3 practitioners), with one other practitioner always on site. 13. The Respondent is to notify the Board of his place of practice and the names of the practitioners who work in the practice, and any changes to the place of practice or other practitioners which may occur from time to time, within 14 days of the commencement of work or of the changes occurring, as the case may be. 14. That the Respondent is to inform the practitioners with whom he works (except a practitioner who works on a short term temporary or short term locum basis unless such practitioner is the only other practitioner working with the Respondent at that time) of each of the conditions place upon his practice. Evidence of the provision of this information (being a copy of the conditions imposed on his practice which has been signed by the practitioner or practitioners with whom he works) is to be submitted to the Board within 14 days of commencement of work by the Respondent or within 14 days of the commencement of work by a practitioner within the practice if it occurs after the Respondent has commenced work. 15. That the Respondent attend a Review Interview at the Board once every 3 months or as otherwise directed by the Board. 16. The Respondent will not practice medicine for a period in excess of 20 hours per week. 17. The Respondent's practice is confined to a position approved by the Board. 18. The Board is the appropriate review body for the purpose of review of these conditions and may ease the conditions at such times as the Board considers such variance is appropriate. 2. That the Respondent pay the Complainant's costs of these proceedings. 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