New South Wales Medical Tribunal CITATION : In Re Dr Paul Herbert CORBETT [2005] NSWMT 14 TRIBUNAL: Medical Tribunal Dr Paul Herbert Corbett (Applicant) Health Care Complaints Commission (Respondent) PARTIES : Health Care Complaints Commission (Applicant) Dr Paul Herbert CORBETT (Respondent) FILE NUMBER(S) : 40016; 40024 of 2004 CORAM: Walmsley, SC DCJ - Pasfield, Dr M - Child, Dr D - Berglund Dr C CATCHWORDS: Review of conditions LEGISLATION CITED: S 51(1) Medical Practice Act 1992 (NSW) Motor Accidents Compensation Act 1999 CASES CITED: HCCC v Litchfield (1997) 41 NSWLR 630 21 March 2005 DATES OF HEARING: 22 March 2005 23 March 2005 DATE OF JUDGMENT: 23 March 2005 LEGAL REPRESENTATIVES: Ms G. Furness (Applicant) Mr C. Evatt (Respondent) ORDERS: On Dr Corbett's Application 1. Application Dismissed 2. Dr Corbett to pay the Commission's costs ; On Commission's Application 1. Complaints 1 & 2 are established 2. By reason of complaint 1, Dr Corbett is reprimanded 3. Dr Corbett to pay the Comission's costs JUDGMENT: DEPUTY CHAIRPERSON: 1 These proceedings concern a medical practitioner, Dr Paul Corbett. There are two applications before the tribunal which concern him. The first, though not in time, is an amended complaint by the Health Care Complaints Commission, ("the Commission"), under section 51(1) of the Medical Practice Act , ("the Act"), that he has been convicted of offences and made the subject of criminal findings for offences in New South Wales; further, that he suffers from an impairment - namely, "a physical and/or mental conditions or disorders; VIZ, as defined in DSM-IV-TR TR alcohol abuse or dependence and cognitive disorder, not otherwise specified - which detrimentally affects, or is likely to detrimentally affect, his mental capacity to practice medicine." 2 Secondly, there is an application by Dr Corbett for the lifting of certain conditions or the variation of conditions currently imposed on his right to practice medicine. Dr Corbett's application was, it appears, the first in time. Both applications were heard together, the evidence in each being treated as evidence in the other. It is necessary to consider his application and the complaint in the light of relevant history. 3 Dr Corbett was born on 15 May 1955 and is almost 50. He is the eldest child of eight. His parents were shopkeepers in Picton. He was dux of his final year at St Gregory's College in 1972. He obtained a Reserve Bank scholarship and studied for a BEc at the University of Sydney, graduating with honours in 1976. In the same year, he was married. This marriage was dissolved some five years later and he has not since remarried. 4 He began to study medicine in 1977 and in 1982 graduated with the degrees of MB and BS from the University of Sydney. He then did an internship at St Vincent's Hospital; in 1983, he undertook a residency at Lewisham Hospital. For a time thereafter he worked as a Commonwealth Medical Officer. However, he found that work dull as it did not involve clinical work. So he went into general practice. In June 1984, he began working at the Baulkham Hills Medical Centre, which was controlled by the former doctor, Geoffrey Edelsten. On 22 August 1985 he left that practice and bought a practice at St Marys, which he built up substantially over the next five years. 5 Within weeks of beginning in that practice, he began to defraud the Health Insurance Commission. He would present Medicare forms for payment for services that had not been provided. There were many false statements. Ultimately 92 charges were laid against him. The sum defrauded was $569,971.05. While he was on bail for those offences, having been charged, he committed two further offences which involved getting his receptionist to sign Medicare vouchers for services not in fact provided but thereby representing that services had been provided. Additionally, he committed the offences of forging and uttering, involving a cheque for $4155.72. He was arrested for the cheque offences on 14 November 1985. He sought psychiatric care for the first time at about that time, on 6 March 1986 coming under the care of Dr Medcalf. He was diagnosed as having a depressive illness and he was prescribed medication for the illness. 6 On 11 May 1987 he pleaded guilty to the cheque offence and was given a good behaviour bond. At about that time injunctions were obtained to restrain him from disposing of property before the sum defrauded for Medicare was repaid. He agreed to and ultimately did repay $556,762.52 to Medicare. On 8 December 1989 he formally pleaded guilty to the Medicare charges and on 27 February 1990 he was sentenced to eight years imprisonment with a six-year non-parole period. 7 On 27 June 1990, this tribunal ordered the removal of his name from the register on the ground of professional misconduct by reason of the Medicare convictions. The Medicare Participation Review Committee on 8 May 1991 decided that he ought to be disqualified from the Medicare scheme for five years, the maximum disqualification period at that time. 8 He appealed against the severity of his sentence for the Medicare fraud offences and on 14 March 1991 the Court of Criminal Appeal reduced the sentence to a head sentence of seven years and six months and a non-parole period of four years, both periods to begin on 27 February 1990. 9 He was released on parole on 26 February 1994, having commenced a daily work release program in 1992. That involved increasing numbers of weekends away from custody. Prior to his release on parole, he applied for review of the tribunal's decision to remove his name from the register. That application was refused. On 7 February 1995, following another application, the Tribunal again refused to restore his name to the register. Finally on 4 September 2000 the Tribunal, following an extensive hearing for a review, ordered that his name be reinstated on the register. It was of course a necessary precondition that the Tribunal be, as it was, satisfied on the balance of probabilities that he was a fit and proper person to be reregistered. 10 His restriction was subject to a number of conditions, including condition 1, which has significance for this hearing. That condition is as follows: "That the applicant work under supervision in a public hospital approved by the Medical Board for a period determined by the Medical Board but for not less than two years. Such supervision is to be at a level applicable to an intern." 11 After Dr Corbett commenced on his work release programme from prison in 1992, he developed a significant alcohol addiction. In 1994, when he was drunk, he fell off a building and fractured his pelvis, later suffering a pulmonary embolus. He was convicted of mid-range prescribed concentration of alcohol offences in April 1994 and June 1995, high-range offences on 27 April 97 and 20 August 98. 12 Those offences were taken account of by the Tribunal when his right to reregister was given. He told the Tribunal as then constituted that he had been an alcoholic when those offences occurred and that he had given up drinking after the 1998 offence; that he had come on 1 September 98 under the care of Dr Latt at the Herbert Street Drug and Alcohol Clinic, and was in turn referred to Dr Jurd, a consultant psychiatrist, attending thereafter a number of meetings at the Doctors Recovery Group. 13 Before his release from prison he began working as a clerk at a hospital. Later, on release, he undertook a great deal of voluntary work for St Vincent de Paul and for the Salvation Army. Under Dr Jurd, he received Naltrexone as part of the alcohol withdrawal program. In 2000 and again in 2002 he continued to drink alcohol notwithstanding his evidence to the Tribunal in that year, that he had ceased to drink. 14 In fact, as appears from his evidence to this tribunal, he may well have ceased drinking for a time but he did continue to drink for at least another two years after the hearing in 2000. In addition to receiving alcoholism treatment from Dr Jurd, Dr Corbett received treatment from another psychiatrist, Dr Wright. Indeed he continues to see Dr Wright. 15 It will be recalled that Dr Corbett's right to practise was subject to the condition, among others, that he work in an approved public hospital for not less than two years and under supervision at a level applicable to an intern. In 2001, Dr Corbett worked between January and July as an employee of the Western Sydney Area Health Service. He worked in the Emergency Department for 10 weeks at Westmead Hospital and for 10 weeks at Mount Druitt Hospital. He was then dismissed for unsatisfactory performance. 16 One of those who was in a position to judge at the time, Dr Don, whose evidence was before this tribunal, and who was not cross-examined, said, among other things, this: "My direct contact with him occurred on ward rounds which were held twice each week in respect of my patients. The purpose of ward rounds was patient management as well as a teaching tool for interns and registrars. From the discussions I held with Dr Corbett during those ward rounds, I formed the view that he was very deficient in his knowledge base. He struggled with basic clinical concepts including the role of investigations, the history taking process using the results of investigations and in his treatment of his patients. . . . The expectation of the performance of interns is not high but it is expected that they possess a knowledge base which would make them safe to practise. I was very disturbed about Dr Corbett's knowledge base. I spoke with him about it frequently. I cannot precisely recollect whether there was an improvement in his knowledge base over the ten-week period. However, I have my doubts that it improved. . . . I formed the view that his record keeping was very poor and not very accurate. I did not have confidence in his assessment of patients in the investigations he ordered and the treatment he provided patients. A number of his discharge summaries were very poor, very brief, inaccurate and/or recorded incorrect treatment." 17 He observed also that Dr Corbett had presented as someone with a psychological, psychiatric or medical problem, having a flat effect, speaking few words, speaking in a monotone, avoiding eye contact and occasionally being unkempt in his clothing and personal hygiene. He also had concerns about his communication skills, found him not fluent, not confident, and uncertain in clinical matters or facts under discussion. 18 Another doctor gave a contemporaneous report. This was Dr Nankivel. He did not think he was competent to practise without at least the supervision appropriate to an intern. On 5 June 2001, Dr Nankivel wrote: "It is widely believed that Dr Corbett should not practise medicine unsupervised, should not be placed on an overtime roster and is not suitable to work as an intern in a peripheral hospital which is very busy, where all members of the team need to be functioning at or near one hundred per cent of clinical effectiveness. It is believed that significant further remedial work needs to be undertaken before Dr Corbett is able to function in an independent and unsupervised mode as a JMO. I should conclude that this report represents a synthesis of information that I have received from a wide variety of sources." 19 Dr Dowsett, in his statement before the Tribunal, said this at paragraph 17: "The opinion I formed of Dr Corbett in May 2001 was that he was not able to practise safely within the high level of supervision provided. My training study, study and experience with supervising interns and other medical practitioners in the emergency department has given me specialised knowledge as to the skills and attributes required in interns and junior medical officers to safely and competently practise medicine" 20 In respect of those criticisms, Dr Corbett puts down his poor performance, at least in substantial part, to his having resumed drinking during the period of supervised employment at those two hospitals. 21 Since the middle of 2001, Dr Corbett has not succeeded, despite considerable diligence on his part, in obtaining other work in the public hospital system. Following his lack of ability to find work in the public hospital system, he enrolled in a technical course to become a licensed conveyancer. His results so far have been excellent, but a career in that field is not his first choice. He wants to remain in the medical field. 22 Since his successful application for reinstatement of his name to the register, he has had further involvement with the criminal law. On 1 June 2001, he was convicted of middle-range prescribed concentration of alcohol driving offence, this having occurred on 3 November 2000; and of a high range prescribed concentration of alcohol driving offence on 18 November 2000. He received six months' imprisonment, to be served by way of periodic detention. He was disqualified from driving for 5 years. On 5 October 2001, he was convicted of driving whilst disqualified, using an unregistered vehicle on a road area and using an uninsured vehicle. For those offences he received a suspended sentence of seven months. 23 On 18 December 2003, a judge of the District Court at Lismore found the facts proved on a rehearing of a prosecution which had been dealt with summarily, of the offences of indecent assault and common assault. The Court imposed a section 10 bond on conditions, including that he accept the supervision of the Probation and Parole service and undertake all reasonable directions, including alcoholism rehabilitation. That bond was dated 18 December 2003. Late in 2001 he had been dealt with for a breach of a bond imposed on him by the Local Court. That resulted in a nine month suspended sentence. 24 The Commission, in its application before the tribunal, bases its application for a finding based on particular one, on these new offences, convictions and fact findings. It also, as noted, alleges that he suffers from an impairment. The factual basis for the allegation of an impairment is to be found in evidence from Dr Samuels, a consultant psychiatrist who has seen Dr Corbett on a number of occasions at the request of the Medical Board. 25 Dr Corbett does not contest the fact that the criminal convictions and findings which form the basis for the first part of the Commission's application are made out. However, he does contest the application for a finding of impairment. Additionally, by reason of his difficulty in obtaining work in the hospital system and that he has had recently an offer of work in a general practice in Dubbo, Dr Corbett seeks to be relieved from further compliance with condition 1, which, as noted, requires him to work for two years in the public hospital system. 26 This application proceeded before the tribunal on 21, 22 and 23 March 2005. The Commission was represented by Ms Gail Furness of counsel, and Dr Corbett by Mr Clive Evatt of counsel. The Commission tendered two bundles containing much of the background material, including copies of relevant tribunal decisions. Dr Corbett tendered a number of documents as well, including medical reports. 27 The Commission's position as to his application is that it is opposed. Apart from the additional criminal convictions and findings and further periods of detention, it points to his unsatisfactory work performance in the first half of 2001. Further Ms Furness, for the Commission submits that, among other things, Dr Corbett has continued to drink alcohol inappropriately, and that he has been dishonest with a board-appointed psychiatrist about his drinking and his continuing criminal history, and with the Commission itself in correspondence. 28 By reason of the psychometric and psychiatric evidence before the tribunal, she also submits that he is impaired and suffers the condition in the amended complaint. Further, she submits the proposal put forward by Dr Corbett for a return to work through the general practice field as an alternative to serving two years in the public hospital system lacks of a level of supervision which would enable the tribunal to conclude that the interests of the public would be served adequately. 29 Dr Corbett in support of his application swore an affidavit and was cross-examined. He conceded that he had consumed alcohol inappropriately and had been dishonest with Dr Samuels the board-appointed psychiatrist, about his drinking and his driving record since the tribunal's decision in 2000. He conceded that he had been dishonest with the Commission in correspondence - namely a letter to the Commission of 19 November 2001 - when he wrote, among other things: "I have abstained from alcohol since January 2001, when I commenced working." 30 Explaining to the Commission in the same letter why he had lied to Dr Samuels, he said he was afraid of the consequences. Before this tribunal, however, that was not the reason given for the acts of dishonesty. 31 He told this tribunal that he had not had alcohol for two years and three months. 32 Ms Furness submitted that, in light of his past acts of dishonesty, this tribunal would have little faith in his honesty with the tribunal, and in what he told doctors whose reports he relies on here. 33 As to the proposal put forward as an alternative to condition 1, the substance of the evidence is this. In some country areas of New South Wales there is a dire need for general practitioners. A significant country centre is Dubbo. At Dubbo there is a large medical centre with 12 to 13 general practitioners and associated health workers, including physiotherapists, nurses, and arrangements with visiting specialists and the like. 34 It is open seven days per week, and long hours. Dr Corbett has been offered work there. The centre is owned or controlled by a Leichhardt general practitioner, Dr Bateman, who gave evidence before us by telephone and who was cross-examined. The medical director who works full-time in the practice, who is Dr Gibson, also gave evidence by telephone and was cross-examined. Dr Gibson is impressively experienced in general practice. He had been told nothing, however, of Dr Corbett's background, save that he had not practised for many years, when he agreed to have Dr Corbett in the practice. 35 If Dr Corbett were to work at the practice, he said, he would be in a room either alongside him or at least close to him. Dr Corbett could have contact with him by telephone or ask him to see him with a patient. He said this, among other things, of what might occur: "He will able to contact me by phone at any time to seek advice or an opinion, or come and see a patient with him. He will have freedom to just do that at any time. We have weekly meetings with GPs at the centre, which are small group meetings, where the doctors participate in presenting cases, and we do that in a rostered fashion and the group discusses the case and the group's best opinion of the case. He will be close to the other 13 doctors who can oversee him. We have a communal treatment room where there are two or three sisters on every day and he can be observed while doing anything in the treatment room." 36 As to the question of clinical notes, which are recorded electronically, Dr Gibson said clinical notes can be observed at any time by another doctor. He said he could monitor them randomly, but not on a case by case basis. He said: "It's just too much work involved case by case, but randomly." 37 He was asked this: "Q. The doctor, for all intents and purposes hasn't practised for many years? A. Yes. Q. Would it be possible in the first week or so either to have another doctor in the room with him seeing patients, or an experienced nurse? A. That would have to be approved by Dr Bateman, who is the owner of the centre, because that obviously would cost money to have someone in with him for that sort of time. Q. What about a nurse? A. Again, that would cost money to do that. Q. I am only looking for a week or so. A. Again, I would have to seek Dr Bateman's approval. Q. We would have to speak to Dr Bateman about that? A. Yes. " 38 Of course, a significant matter of concern to the tribunal is how any re-entry to practise through the general practitioner route could safely be managed. In chief, Dr Gibson conceded that he has the supervision of a number of doctors in the practice, though it is clear that most of those doctors do not need the degree of supervision that condition 1 suggests Dr Corbett needs. 39 Dr Bateman, to whom I earlier referred, and who is a general practitioner of 39 years standing, did know of Dr Corbett's significant Medicare fraud background and that he had been to gaol. He knew that he had a long-term alcohol problem, but he understood that he had not been drinking since November 2002, which was in substance what Dr Corbett told us. He had heard too of what he summed up as "Dr Corbett's disaster" at Westmead Hospital. He considered that the work at Westmead Hospital would have been especially difficult for someone of Dr Corbett's age and background, compared with some one fresh from medical studies. 40 Clearly Dr Bateman would entertain a gradual commencement in general practice. He said that Dr Corbett could see as few patients as were consistent with his capacity. He conceded that he had difficulty filling positions in Dubbo. He was asked: "Q. In terms of supervision available to Dr Corbett, would you be prepared to find an appropriately senior doctor to sit in on consultations with Dr Corbett for days or weeks? A. Well, it is not a matter of funding. I just simply have not got the manpower to do it. Also, I do not see it as my role to fund that. I mean, if he wanted to fund that himself, that would be okay, but I simply do not have the manpower even if he was willing to fund it. Q. So what supervision would you expect Dr Gibson to provide?" 41 He later said: "A. I do not employ him, but aside from that he would, I think, observe what he does day to day with patients and look at the records, look at the outcomes, listen to any difficulties that arise within the centre, as a result of what he is doing or not doing. Q. You do not consider it your responsibility to direct Dr Gibson as to what form the supervision should take? A. No, I do not see it as my job, no. Q. Were you proposing to offer Dr Corbett a position for a specified period of time? A. No, not really. I was just hoping that he would go there, he would fit in and there would be no issues. I mean, long term, I would like him to stay there if he is competent and able to do the job." 42 Dr Corbett's ability to practise safely as a general practitioner, with supervision or without it, is, as we see it, connected with his mental state. The Board appointed psychiatrist, Dr Samuels, has seen Dr Corbett on a number of occasions in the last five years. As well, a neuropsychologist, Dr Reid, has conducted psychometric testing and has reported to the board about him, on two occasions. Dr Reid was not required for cross-examination, though his reports were tendered. Dr Samuels was not required either for cross-examination, although he did attend and he was cross-examined. Having conducted testing in 2001, Dr Reid concluded: "The results of the neuropsychological assessment indicate that Dr Corbett has evidence of frontal lobe dysfunction affecting his conceptual skills, high level problem solving, planning abilities and sequential thinking. He shows greater impairment in his non-verbal neurocognitive functions, compared to his verbal abilities. In the context of his history of alcohol abuse, it is felt that the most likely cause of his cognitive impairment is alcohol." 43 He recommended that he abstain from alcohol and be re-assessed to monitor changes, but he said of his ability to practise medicine as follows: "At this point in time, his ability to practise medicine without supervision, such as independent general practice, would be of concern. Furthermore, the difficulties which he shows in conceptual skills and high level problem solving may explain some of the difficulties he has experienced in adjusting to many changes that have occurred, since he last practised medicine." 44 Dr Reid reported again to the commission on 9 March 2005, having assessed Dr Corbett again on 7 March 2005. Among other things he said this: "Dr Corbett informed me that since the last assessment on 31/07/01, he has been unemployed as he has been unable to successfully find himself a position in a public hospital. In 2003 he applied to the Albury hospitals for a medical position but was unsuccessful. Following this unsuccessful attempt to return to practise medicine, he opted to take a career change and started a course in conveyancing at TAFE. He started this course at the Ultimo TAFE and in his first year exams obtained seven distinctions, three credits and a pass. He told me that he has also made application to change conditions of his registration. He went on to say that he had last drunk alcohol in December 2002, that he had regular therapy sessions with Dr Murray Wright and that he had had these since November 2002." 45 He found, on examination, that his affect was somewhat flat and he related in a somewhat defensive manner, although perhaps that's not surprising given the circumstances in which the examination occurred. He noted improvement on the second series of test. He said: "The course of his initial cognitive impairment and subsequent improvement in some aspects of his cognition is consistent with that expected from alcohol-related brain impairment. However, the persistent nature of his deficits in the absence of alcohol and depression is somewhat puzzling, particularly in view of his normal MRI scan." (There had been an MRI scan shortly before, which showed no abnormality.) "With regard to the possible effects Dr Corbett's cognitive problems will have on his ability to practise medicine independently…I remain of the opinion that the impairment in his conceptual skills, problem solving and visual memory have the potential to affect his current diagnostic skills. I therefore feel that the conditions of his registration remain and that he work in a supervised medical environment, possibly a general practice working alongside a GP, before taking on his own case load. Further ongoing neuropsychological assessment is also recommended in 12 months." 46 Dr Samuels on 13 December 2000 observed that Dr Corbett was motivated to begin his career or rebegin it, but his past suggested the need for close monitoring. On 24 June 2002 he found Dr Corbett quite stable from a psychiatric perspective but he could see no indication to change the conditions. 47 His most recent of a number of reports is dated 11 March 2005. He had recently seen Dr Corbett when he gave that report. He said this, among other things: "He told me he had now received a job offer from the Western Plains Medical Centre in Dubbo. He said he had spoken to Dr Bateman, who ran the practice, and told him about his conditions of registration and his previous problems with alcohol. He told me that it was not a solo practice, that it was computerised and that he would be working 40 hours per week. He said that in his practice he would always have support. I am in fact familiar with this practice as I visit the Dubbo region each week. The Western Plains Medical Centre is a very business general practice setting, with a high turnover of patients. My impression is that doctors in the practice are expected to work fairly independently, although there may be some support from the principal doctor within the practice." 48 He was asked if Dr Corbett currently suffered from any psychiatric conditions. He said this: "In terms of DMS-IV-TR, he has a history suggestive of a dysthimic disorder. At times he may have fulfilled DMS-IV-TR criteria for major depression. Certainly at the present time his mood symptoms seem to be predominantly in remission. He does, however, a little affectively flat. He also has had problems with alcohol dependence and abuse. At the present time I would see him as meeting criteria for an early remission. He also seems at this point to fulfil DSM-IV-TR criteria for a cognitive disorder not otherwise specified, as he has evidence of impairment in cognitive functioning on neuropsychological testing. At this point the aetiology of these deficits is not entirely clear. He does, however, have a history of alcohol abuse and possible head trauma." 49 Referring to Dr Reid's report, he said: "The most significant finding in relation to Dr Reid's report is the fact that Dr Corbett's cognitive functioning has not improved to the expected degree. The fact that his cognitive function has not worsened is of course encouraging and suggests he is not suffering from neurodegenerative disorder, but the findings are also a little puzzling." 50 He concluded then: "I can see no indication to alter Dr Corbett's current conditions. I am aware that it is extremely difficult for him to find placement in a supervised public hospital setting but at this point I do not believe it would be safe for him to take on an essentially unsupervised position in a general practice setting. Significant concerns were raised about his medical incompetency in the course of his placement at Westmead and associated hospitals. Until there has been some substantive opportunity to review whether or not his clinical skills have improved, it would in my view be difficult to feel confident that Dr Corbett had the capacity to practise independently. In addition, the fact that he has quite significant problems with cognitive impairment heightens the need for oversight and supervision." 51 Dr Samuels was cross-examined, as we have noted. As the psychiatrist who had seen Dr Corbett on a number of occasions over the last five years, and who had a good knowledge of the Dubbo practice and not involved in any way with the treatment of Dr Corbett, the tribunal finds his evidence of quite significant weight. It also considers it logical, well­-argued, and persuasive. 52 Dr Corbett tendered reports from Dr Wright and Dr Clark, both consultant psychiatrists, and Dr Lawson, a consultant physician. Dr Lawson had seen him for medico-legal purposes on a number of occasions, as had Dr Clark. All three were cross-examined. 53 Dr Clark, who had seen him since 1997, had read Dr Reid's reports. Until he gave evidence before the tribunal he had not seen the statements from Westmead Hospital and Mount Druitt. He had only Dr Corbett's views on his performance at those hospitals. 54 On 7 March 2004, he thought that he suffered a chronic depression or dysthymia, though he had originally diagnosed a bipolar disorder. When he gave evidence to the tribunal his thinking was that his earlier diagnosis of bipolar disorder was the correct one. At the stage he gave that report, he said that there was no concern about his practising medicine. Having seen him again several times, he reported again on 28 February 2005. He noted that views had been expressed that Dr Corbett had a frontal lobe deficit. However, as he observed, a CT Scan had not confirmed that, nor had an MRI scan. He wondered whether the psychometric tests suggestive of damage had been caused by a patchy pattern in his abilities. Dr Clarke looked at Dr Corbett's work ability by reference among other things to the American Medical Association Impairment Scales which are used in connection with the Motor Accidents Compensation Act. 55 In oral evidence he drew attention to different pressures that prevail in a hospital setting compared with those in general practice. In cross-examination, he accepted the validity and legitimacy of the neuropsychological testing which had been done in the context of examining brain function. Having now read for the first time the statements from Dr Corbett's supervisors at Westmead and Mount Druitt he conceded that even in a general practice setting Dr Corbett would need supervision. Initially, he thought it should be quite regular; daily, looking at his prescribing habits, becoming weekly after a few months. The supervisor, he thought, ought review the notes daily. 56 Dr Corbett's current treating psychiatrist is Dr Wright. He has been treating him since about the year 2000 and sees him approximately monthly. He also thinks supervision would be necessary if Dr Corbett were to work in general practice, though he suggests supervision at a lesser level than Dr Clark considers necessary. 57 Specialist physician Dr Lawson conceded that mental health was not his area. However, he said that for Dr Corbett to return to practice through the general practice route, a degree of supervision would be needed. He suggested that more supervision might be available in general practice than in the public hospital system. Having read the reports from the Westmead and Mount Druitt Hospitals, he expressed the view that some of the judgements made in those reports could have been seen as "generational". He did concede that they raised major problems. 58 Dr Corbett's application is brought under Section 92(1) of the Act. We were told that this is an unusual application. Normally the Medical Board has the power to vary conditions, and does entertain applications to vary conditions. So occasion for the exercise of this jurisdiction, which the tribunal is being asked to exercise, does not often arise. Mr Evatt submitted that the tribunal ought vary condition 1 so that it reads as follows: "(1) That the applicant work under supervision in a private medical practice approved by the Medical Board for a period determined by the Medical Board for not less than two years; alternatively, that the applicant work under the supervision of Dr Bateman, Dr Gibson or other doctors approved by the Medical Board at the Western Plains Medical Centre for a period determined by the Medical Board but for not less than two years." 59 He also submitted that the tribunal give consideration to giving to the Medical Board the power to vary 1, as we took it, either if the tribunal did vary 1 as requested, or even if it left it as it was. 60 Mr Evatt submitted that if the application is not successful, then the practical effect is that Dr Corbett will not return to medical practice. He submitted that it is not in contest but that he has done all he can reasonably do to obtain work in the public system to comply with the prevailing conditions. 61 He relied on Dr Reid's opinion that Dr Corbett has some ability to work in a general practice. He referred us to an opinion also from Dr Baker to the Medical Board in a letter of 24 July 2001, where he wrote of the difficulties faced by a doctor absent from clinical practice for some time and who then went to work as an intern in a teaching hospital. He said: "Requiring a doctor to relearn those skills and acquire the knowledge placed a burden both on the doctor and the hospital, which to his mind was unrealistic." 62 Dr Baker said finally: "If the doctor fails to meet these expectations, it does not necessarily mean that they are incapable of reskilling themselves as a GP. It strikes me that such an outcome would still be possible if a more appropriate training program is designed, perhaps with the input or supervision of the College of General Practitioners." 63 As did Dr Lawson, he submitted that some of the criticisms of Dr Corbett's performance were generational, and he drew our attention to the fact that Dr Eshoo, for example, is 20 years younger than Dr Corbett. He submitted that when giving evidence before us, Dr Corbett had been much better than as portrayed in Dr Don's statement, particularly at paragraphs 12 to 16, and Dr Nankivel at page 39 of his statement. 64 The tribunal considers that there is substance in that submission. To the Tribunal's observation Dr Corbett did indeed appear in evidence to perform at a higher level than as portrayed in the statements of Dr Nankivel and Dr Don. 65 Mr Evatt submitted that Dr Corbett appeared to be improving when he left the public system. He conceded that of course there had been problems with alcohol, but submitted that they would not be ongoing. He submitted that he would, if permitted to join the Dubbo practice, receive a good degree of supervision where he could work at his own pace. 66 As to the Commission's application, he submitted that he had already been punished by the criminal law, and ought not be reprimanded, as the Commission submitted that the tribunal ought do. As to the second part of the complaint in the application by the Commission, Mr Evatt submitted that we ought not make the finding as requested. In any event, he noted that that was a less serious and fall-back position put forward by the Commission. 67 The tribunal members have considered the evidence and the submissions but are of the view that Dr Corbett's application ought be dismissed. While there have been some changes in his circumstances for the good and there have been some improvements in his health, the tribunal is not persuaded that the interests of the public would have adequate protection if it did as asked. In the Healthcare Complaints Commission v Litchfield (1997) 41 NSW LR 630 at 637, the court said this: "Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standard primarily for the protection of the public but also for the protection of the profession." 68 There were no doubt good reasons why, when Dr Corbett's name was restored to the register in 2000, the tribunal as then constituted imposed the conditions it did. Whilst the tribunal is satisfied that Dr Corbett has done a great deal to find work since he was dismissed in mid 2001 and that he may continue to have significant difficulty in obtaining work with the existing conditions in place, it does not see its function as requiring it to pay high regard for that issue. Its primary concern is with the public's protection. The tribunal, having said that, has sympathy for his position. He has suffered from alcoholism and those matters in respect of which he has psychiatric care. He has expended a great deal of energy in trying to find alternative work in the public hospital system and indeed pursuing alternative professional areas. 69 There is support in the evidence for his capacity to work in general practice on certain conditions. 70 As well there is available work in the Dubbo practice. However, against these matters, we think, must be considered, first, it has been 15 years since Dr Corbett last practised as a GP. Indeed in his whole career he was only in general practice for about five years. Secondly, since the orders made in 2000, he has continued to commit breaches of the criminal law, leading to sentences of imprisonment, to be served by periodic detention or which were suspended. Thirdly, after the year 2000 hearing, he continued to drink alcohol. He committed offences whilst under the influence of alcohol. Fourthly, he was dishonest with the board-appointed psychiatrist, Dr Samuels, and then with the Commission. The Tribunal sees there being a necessity for honest dealings by him with the Board in any ongoing relationship that he has with it. Although he says that he has not had alcohol for two years and three months, he told the tribunal before which he gave evidence in 2000 he was not then drinking. This tribunal has concerns about the possibility that he might continue to drink. 71 Further, bearing in mind the tribunal-imposed conditions in 2000, this tribunal considers that it should take note of the available evidence on what did happen after Dr Corbett sought employment and obtained work in line with the orders and conditions, in particular, Dr Nankivel's view that Dr Corbett was not competent to practise medicine without at least the level of supervision provided to an intern, that being his view in July 2001. Dr Nankivel's opinion in a letter of 1 May 2001 was that Dr Corbett's emergency department report from the previous term was close to the worst clinical assessment that he had received in the Western area. We note further the view of Dr Dowsett on 2 May 2001, in the following terms: "The incompetence of this intern is so outstanding." 72 Thus there is a large body of evidence to support the proposition that he need supervision if he practises. The tribunal is not persuaded the degree or detail of the supervision envisaged at the Dubbo practice would be such as to protect the public sufficiently. 73 This is not to say that a case could not be made out for supervised general practice as an alternative to condition 1. But among other considerations we take account of the fact that the Dubbo practice is a commercially orientated one. It is apparent from the evidence that there are "manpower" factors there. As well as that we note reference to the fact that there is no money available to pay for side-by-side supervision, assuming "manpower" were available. 74 The tribunal does not accept the submission which was put to us that the quality and degree of available supervision in the public hospital system is inferior to what would be available in general practice. Though it is clear from Dr Gibson's evidence that he would be able to check on notes and be available, he is a busy man in his own practice, with others under his supervision. 75 The tribunal is not satisfied that the proposal has the necessary structure and in-built checks to give it confidence that Dr Corbett would receive the degree of supervision that it considers he still needs in order to protect the public. It is not persuaded on the balance of probabilities that the circumstances have varied or changed to such a degree as to justify the variations sought. Accordingly, the application is dismissed. 76 The tribunal considers that the usual order for costs ought follow. Accordingly, it orders that Dr Corbett pay the Commission's costs. 77 As to the Commission's complaint, as we have noted, particular 1 is admitted. As to particular 2, the tribunal is comfortably satisfied on the balance of probabilities that the evidence establishes particular 2, and that it is made out. 78 The evidence of Dr Samuels, which the tribunal accepts and prefers, where it conflicts with that of other psychiatrists, amply, we think, supports the finding. As we have noted, he is not involved in the treatment. He is in effect independent of the parties. He was Board appointed. We found him persuasive, logical and otherwise impressive. Thus, as to the complaint, we find both parts of it are established; that is, complaints 1 and 2. 79 In those circumstances, it is put by the Commission that we ought reprimand Dr Corbett. We take account of the submission put to us that he has already been punished by the criminal justice system. However, the legislature appears to assume that the tribunal still has this option open to it, and ought impose a reprimand where appropriate, even in cases where a doctor has been found guilty of breaches of the criminal law. 80 In the circumstances, by reason of the nature of the offences as proved, and the convictions, the tribunal considers Dr Corbett ought be reprimanded. Dr Corbett is reprimanded. As to the Commission's application, he is ordered to pay the commission's costs. 81 The formal findings and orders are: Orders and findings on Dr Corbett's Application 1. Application dismissed. 2. Dr Corbett to pay the Commission's costs. On Commission's Application 1. Complaints 1 & 2 are established. 2. By reason of complaint 1, Dr Corbett is reprimanded. 3. Dr Corbett to pay the Commission's costs. ********** 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.