New South Wales Medical Tribunal CITATION : In Re Dr Ian McHue [2007] NSWMT 11 revised - 20/12/2007 TRIBUNAL: Medical Tribunal PARTIES : Health Care Complaints Commission (HCCC) Dr Ian McHue FILE NUMBER(S) : 40007 of 2007 CORAM: Rein, SC DCJ - Warden, Dr J - Diamond, Dr M - Collier Ms A CATCHWORDS: Medical practitioner (GP Anaesthetist) with alcohol dependence - History of failure to comply with conditions on practice imposed by the Medical Board as a part of Impaired Registrants' Program - Attended at hospital while under the influence of alcohol - Misleading statements made to the Board appointed psychiatrist and Tribunal about use of alcohol - Unsatisfactory professional conduct - Professional misconduct - Practitioner removed from the register of medical practitioners LEGISLATION CITED: Medical Practice Act 1992 (NSW) Re Dr Than Le NSW Medical Tribunal 20 September 2001; Prakash v HCCC [2006] NSWCA 153; Law Society of NSW v McNamara (1980) 47 NSWLR 72; Smith v NSW Bar Association (1992) 176 CLR 256; Wanigaratme v Health Care Complaints Commission [2000] NSWCA 204; HCCC v Litchfield [1977] 41 NSWLR 630 ; Gayed v Walton unreported NSWCA 31/7/1997 BC97080; Bannister v Walton (unreported NSWCA 30/04/1992 BC9201911) ; CASES CITED: In re Zaidi [2006] NSWMT 6 ; HCCC v Karalasingham NSWCA 267; A Solicitor v Council of the NSW Law Society 216 CLR 253 ; Prothonotary v P [2007] NSWCA 320; Ex parte Lenehan (1948) 77 CLR 403; Prothonotary v Ritchard (BC8701242, NSWCA 31 July 1987); NSW Bar Association v Maddocks (NSWCA 23 August 1998); Gad v HCCC (2002) NSWCA 111 ; NSW Bar Association v Meakes [2006] NSWCA 340 DATES OF HEARING: 7, 8, 9 November 2007 DATE OF JUDGMENT: 14 December 2007 LEGAL REPRESENTATIVES: Mr G Farmer (HCCC) Mr D Ronzani (Dr McHue) ORDERS: 1. Dr McHue's name be removed forthwith from the Register of Medical Practitioners; 2. Dr McHue not be permitted to apply for review of Order 1 for a period of two years from date of decision; 3. Dr McHue to pay the HCCC's costs of the proceedings JUDGMENT: ORDERS The Tribunal orders: 1 Dr McHue's name be removed forthwith from the Register of Medical Practitioners; 2 Dr McHue not be permitted to apply for review of Order 1 for a period of 2 years from today; 3 Dr McHue pay the HCCC's costs of the proceedings. REASONS 1 These proceedings concern a complaint brought by the Health Care Complaints Commission ("the HCCC") against a registered medical practitioner, Dr. Ian McHue ("Dr McHue"). The complaint is that Dr McHue has been guilty of unsatisfactory professional conduct within the meaning of s.36 of the Medical Practice Act 1992 ("the Act") and/or professional misconduct within the meaning of s.37 of the Act. Mr G Farmer of Counsel appears for the HCCC and Mr D Ronzani of Counsel appears for Dr McHue. 2 S.36 is relevantly in the following terms: "Meaning of 'unsatisfactory professional conduct'" (1) For the purposes of this Act, "unsatisfactory professional conduct" of a registered medical practitioner includes each of the following: (a) Conduct significantly below reasonable standard Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (c) Contravention of conditions of registration Any contravention by the practitioner (whether by act or omission) of a condition to which his or her registration is subject. (m) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of medicine. S.37 is in the following term: "Meaning of 'professional misconduct'" For the purposes of this Act, "professional misconduct" of a registered medical practitioner means 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. 3 On 2 February 2001, after having reported to the Board his alcohol dependence (which he did on 14 April 2000), Dr McHue appeared before the Impaired Registrants Panel ("IRP") of the NSW Medical Board ("the Board"). On this occasion, the IRP placed 7 conditions on the registration of Dr McHue as a medical practitioner. These conditions have been revised on three separate occasions since that time (in March 2002, March 2003, and October 2003). Following the most recent revision, Dr McHue's registration is now subject to 13 conditions, including: Health Condition 1: To abstain completely from the consumption of alcohol. Health Condition 5: To attend for treatment by a psychiatrist of the practitioner's choice, currently Dr Jurd, at a frequency to be determined by the treating psychiatrist. 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. Health Condition 7: To have blood taken for the measurement of Carbohydrate Deficient Transferrin levels at monthly intervals. The results of the test to be forwarded to the treating and Board nominated practitioners and to the Board. Health Condition 8: To attend for review by Dr Robert Fisher, the Board-nominated psychiatrist, initially on a six monthly basis, at the Board's expense. Health Condition 9: to attend a Review Interview at the Board on a six monthly basis or as otherwise directed by the Board. 4 The HCCC's Notice of Complaint originally contained the following particulars: "On 2 February 2001, the practitioner appeared before the Impaired Registrants Panel (IRP) of the NSW Medical Board ("the Board"). On that date, the practitioner agreed to 7 conditions being placed on his registration, outlined below: Condition 1: To limit alcohol intake to 'social drinking,' that is, no more than 25 standard drinks per month. To not consume any alcohol when 'on-call.' Condition 2: That blood is taken for the measurement of liver function tests and MCV tests every three months. That following notification by the Board of the resumption of CDT testing, blood is taken for the measurement of carbohydrate deficient transferrin levels at monthly intervals. The results of all tests are to be forwarded to the Board, treating and Board nominated doctors. Condition 3: To attend for treatment by a psychiatrist experienced in the treatment of Drug and Alcohol abuse, currently Dr Stephen Jurd, at a frequency to be determined by the treating doctor. To authorise the treating psychiatrist to inform the Board of failure to attend for treatment or if there if there is a significant change in health status. Condition 4: To attend for treatment by a general practitioner of choice, at a frequency to be determined by the treating doctor. To authorise the treating practitioner to inform the Board of failure to attend for treatment, termination of treatment or if there is a significant change in health status. Condition 5: To attend for review by Dr Fisher, the Board nominated psychiatrist, initially on a six monthly basis, at the Board's expense. The first review to take place prior to 16 March 2001 and thereafter prior to each Board Review Interview. Condition 6: Attend a Review Interview at the Board in six months. Condition 7: That copies of the Impaired Registrants Panel report and subsequent Board Review Interview Reports are forwarded to the Board nominated psychiatrist, treating psychiatrist and treating general practitioner. 5 Following the imposition of the above conditions, the practitioner: (1) Attended a roadside accident, whilst on-call, on or around 22 December 2001 after having consumed 50-60 grams of alcohol, contrary to condition 1. (2) Attended Griffith Base Hospital, whilst on call, on or around 23 December 2001 to administer an anaesthetic drug whilst intoxicated, contrary to condition 1. (3) Failed to attend for liver function tests (LFT) and/or MCV tests on a three monthly basis between February 2001 and March 2002 (inclusive) and/or failed to forward the test results to the Board, treating and/or Board-nominated psychiatrists, contrary to condition 2. (4) Failed to attend for first review with Dr Fisher prior to 16 March 2001, contrary to condition 5. (5) Following attendance with Dr Fisher on 30 March 2001, failed to attend for further review with Dr Fisher in the following six months, contrary to condition 5. (6) Following attendance with Dr Jurd in June 2001, failed to attend for further treatment with Dr Jurd until January 2002, contrary to condition 3. The IRP of the Board regularly reviewed the conditions attached to the practitioner's registration. On 19 March 2002, the IRP of the Board revised the conditions attached to the practitioner's registration. As a result, the practitioner's registration became subject to 12 conditions, including the following: Health Condition 1: To abstain completely from the consumption of alcohol. Health Condition 5: To attend for treatment by a psychiatrist of the practitioner's choice, currently Dr Jurd, at a frequency to be determined by the treating psychiatrist. 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. Monitoring Condition 7: To have blood taken for measurement of Carbohydrate Deficient Transferrin levels at monthly intervals (on notification by the Board that testing has resumed or is available) and for Liver Function Tests and a full blood count every month in the interim. The results of all tests to be forwarded to the treating and Board-nominated practitioners and to the Board. The testing is at the practitioner's expense. Monitoring Condition 8: To attend for review by Dr Robert Fisher, the Board-nominated psychiatrist, initially on a three monthly basis, at the Board's expense. Monitoring Condition 9: To attend a Review Interview at the Board on a six monthly basis, or as otherwise directed by the Board. On 20 March 2003, the Board revised the conditions attached to the practitioner's registration. As a result, the practitioner's registration became subject to 13 conditions. However, the conditions outlined above, namely, Health Conditions 1 and 5 and Monitoring Conditions 7-9 remained unchanged. (There was no Particular (7)). Following the imposition of the above conditions, the practitioner: (8) 8 (a) Resumed drinking alcohol around May 2002 and continued to drink alcohol until approximately 28 July 2002, contrary to condition 1. (b) Consumed at least one glass of wine on or around 20 July 2002, whilst on-call to Griffith Base Hospital, contrary to condition 1. 9 Failed to attend for Liver Function Tests at monthly intervals as outlined below and/or failed to forward the results of such testing to the treating and Board-nominated practitioners and/or to the Board, contrary to condition 7: i. May 2002 – July 2002 (inclusive) ii. December 2002 – February 2003 (inclusive) iii. April 2003 – May 2003 (inclusive) 10 Failed to attend for Full Blood Count Tests at monthly intervals as outlined below or failed to forward the results of such testing to the treating and Board-nominated practitioners and/or to the Board, contrary to condition 7: i. April 2002 – July 2002 (inclusive) ii. December 2002 – February 2003 (inclusive) iii. April 2003 – May 2003 (inclusive) iv. August 2003 – September 2003 (inclusive) 11 Upon being notified by the Board by letter dated 18 June 2003, that reliable test kits for Carbohydrate Deficient Transferrin (CDT) were available, failed to attend for the his first CDT test by 7 July 2003 as instructed by the Board. 12 Failed to attend for reviews with Dr Fisher on a three monthly basis, contrary to condition 8. 13 Following attendance with Dr Fisher on 20 November 2002, failed to attend for further reviews on a three monthly basis, contrary to condition 8. On 22 October 2003, the Board again revised the conditions attached to the practitioner's registration. As a result, the practitioner's registration became subject to 12 conditions, including the following: Health Condition 1: To abstain completely from the consumption of alcohol. Health Condition 5: To attend for treatment by a psychiatrist of the practitioner's choice, currently Dr Jurd, at a frequency to be determined by the treating psychiatrist. 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. Health Condition 7: To have blood taken for the measurement of Carbohydrate Deficient Transferrin levels at monthly intervals. The result of the tests to be forwarded to the treating and Board nominated practitioners and to the Board. The testing is at the practitioner's expense. Health Condition 8: To attend for review by Dr Robert Fisher, the Board-nominated psychiatrist, initially on a six monthly basis, at the Board's expense. Health Condition 9: To attend a Review Interview at the Board on a six monthly basis or as otherwise directed by the Board. Following the imposition of the above conditions, the practitioner: 14 Consumed at least 2 glasses of wine on 25 December 2003, contrary to health condition 1. 15 Failed to provide blood samples for Carbohydrate Deficient Transferrin (CDT) tests at monthly intervals as outlined below, and/or failed to forward the results of such testing to the treating and Board-nominated practitioners and/or to the Board, contrary to condition 7: v. Between October 2003 – January 2004 (inclusive) vi. Between March 2004 – April 2004 (inclusive) vii. June 2004 viii. Between August 2004 – February 2005 (inclusive) ix. April 2005 x. September 2005 xi. Between March 2006 – May 2006 (inclusive). 16 Failed to provide a copy of the results for the CDT tests to Dr Fisher, contrary to health condition 7, for the following periods i. February 2004 ii. May 2004 17 Failed to attend for further treatment with Dr Jurd between December 2003 and January 2004 (inclusive). 18 Following attendance with Dr Fisher on 23 July 2004, failed to attend for further reviews with Dr Fisher on a six monthly basis, contrary to health condition 8. 19 Following attendance with Dr Jurd in November 2004, failed to attend for further treatment with Dr Jurd until approximately April 2005. 20 Failed to attend for a scheduled Board review Interview on 12 January 2005, contrary to health condition 9. 6 On the first day of the hearing, the complaint was amended to include two further matters: 21 Failed to provide blood samples for Carbohydrate Deficient Transferrin (CDT) tests at monthly intervals as outlined below, and/or failed to forward the results of such testing to the treating and Board-nominated practitioners and/or to the Board, contrary to condition 7: xii. July 2006 xiii. October – November 2006 (inclusive) xiv. April – May 2007 (inclusive). 22 Consumed about two standard drinks of wine or beer on about 12 occasions being about once every two weeks between about March 2007 and 26 September 2007, contrary to health condition 1. 7 On the second day of the hearing the HCCC foreshadowed a further amendment to include a particular that Dr McHue had deliberately sought to mislead Dr Fisher, the Medical Board and the Tribunal in relation to his consumption of alcohol. On the third day of the hearing the HCCC amended the complaint to include the further particulars which amendment was not opposed. Those particulars were also admitted. 8 It was agreed that particular (1) should be read as a complaint that Dr McHue had attended on a road accident victim at the Griffith Hospital. 9 Dr McHue was born in 1958, and completed a Bachelor of Medicine at the University of Newcastle in 1983. Between his graduation and 1994, he undertook a range of positions as a Resident and then a Registrar in Newcastle, Orange and Gosford. In 1996 Dr McHue moved to Griffith with his wife, Dr Reeves, and took up a position as a Visiting Medical Officer GP-Anaesthetics/Director of Emergency Department at Griffith Base Hospital. Since that time he has remained on the staff at Griffith Base Hospital, as the Coordinator of the Intensive Care Unit (during 1996) and then from 1997 to present as a Senior Clinician, Anaesthesia in the Emergency Department. 10 Dr McHue admits each of the particulars relied on. Before dealing with them, we should note that on 18 April 2000, Dr Paul Curtis, Director of Clinical Services Greater Murray Health Service wrote to the Board advising that it had been reported that Dr McHue had attended at the Griffith Base Hospital to perform anaesthetics for an endoscopy list, in an inebriated state. There was discussion with him on 6 April 2000, in which Dr McHue admitted to the hospital's general manager that he had a problem with alcohol. It was following this discussion that Dr McHue advised the Board of his problem. 11 The incident on 28 March 2000 was not the first occasion that Dr McHue had attended at the hospital in an intoxicated state – he had been spoken to in 1999: see Exhibit A, Tab 5, p.4, report of Dr Fisher of 6 November 2000. 12 Dr McHue admits that there were an additional six occasions at least when he had been drinking before attending work as an anaesthetist but he was unable to provide no details of these occasions or to say whether or not they exceeded ten occasions. These incidents are not the subject of complaint. 13 On 22 December 2001, whilst on call, Dr McHue, having consumed 50-60 grams of alcohol, attended on a road accident victim who had been admitted to the hospital. Dr McHue says that he had to make an assessment only. 14 On 23 December 2001, Dr McHue, who was on call as an anaesthetist, attended at the hospital to administer an anaesthetic. Nurse Manager Judy Emery reported that Dr McHue was speaking "with slurred speech and was walking with unsteady gait". On closer examination Dr McHue "smelt strongly of intoxicating liquor". She says she questioned Dr McHue directly as to whether he was capable of attending theatre and he replied "yes". The surgeon who was to undertake the operations cancelled theatre. Two doctors at the hospital spoke to Dr McHue who admitted that he was under the influence of alcohol and needed counselling and help. 15 Focussing on these two matters, both of which occurred after Dr McHue had been placed on the Impaired Register, we have no doubt that to attend as anaesthetist in an intoxicated state is properly described as "improper or unethical conduct" and is of a sufficiently serious nature to justify suspension or removal from the register and hence constitutes "professional misconduct". The conduct on both occasions involved the practitioner contravening a condition to which his registration was subject, which at the least is "unsatisfactory professional conduct" see s.36(1)(b) of the Act. The complaint is therefore made out and a breach of s.37 of the Act established even without consideration of the other matters. 16 Following the incidents referred to in [13] and [14] above, the Board imposed an absolute prohibition on Dr McHue drinking alcohol. 17 As the evidence and admissions of breach demonstrate, Dr McHue has repeatedly breached that condition. 18 Over the past six years there have been other breaches of conditions – a failure to attend for review on the psychiatrist nominated by the Board, Dr Robert Fisher and to attend on Dr Jurd, a psychiatrist nominated by Dr McHue. Dr McHue subsequently appointed an ACT-based psychiatrist, Dr Saboisky and did attend on him but infrequently. The circumstances in which Dr McHue came under the care of Dr Saboisky are that in June 2006 Dr McHue was severely depressed and Dr Reeves (Dr McHue's wife) arranged for Dr Saboisky, a psychiatrist, to see her husband. Dr Saboisky saw Dr McHue on 14 June, 20 June, 12 July, 8 August 2006 and 27 August 2007. That last consultation seems to have arisen solely as a result of Dr McHue's need for a report for this hearing. 19 Over the last 5 years there have been a number of occasions when Dr McHue has failed to have tests conducted, which tests can provide information as to the extent of alcohol intake. The most recent requirement has been to provide blood samples for Carbohydrate Deficient Transferrin ("CDT") tests which were required to be supplied at monthly intervals but which were not in fact supplied between October 2003-January 2004, March 2004-April 2004, June 2004, August 2004-February 2005, April 2005, September 2005, and between March-May 2006, July 2006, October-November 2006, April-May 2007. The breaches also must be categorised, at least, as unsatisfactory professional conduct: see s.36 of the Act. 20 All of the reviews conducted by Dr Fisher are before the Tribunal. Two reports of Dr Saboisky were tendered by Dr McHue, and Dr Saboisky gave evidence by way of phone link. 21 Dr McHue made a statement (which forms part of Exhibit 1) and attended at the hearing. His wife, Dr Reeves, who is a general practitioner, made a statement and gave evidence. 22 In June of 2006, Dr McHue became severely depressed – taking time off work and reaching a very low ebb indeed, for a time showing little interest in anything, even eating and drinking and he became suicidal. Dr Reeves was so concerned she arranged for Dr McHue to see Dr Saboisky (to whom she had in the past referred patients with good results) and Dr Saboisky worked to bring Dr McHue out of his severe depression and get him back to work, which he did. The severe depression lasted for approximately 4-5 weeks, Dr McHue did return to work and as his condition improved he began to drink almost a bottle of wine a night for a period of some weeks. Dr Reeves says she was not aware of this and ascribes problems of her own to her lack of recognition that Dr McHue was consuming harmful levels of alcohol. 23 The Tribunal heard evidence about a drug known as Antabuse. It contains a chemical disulfuram which when combined with alcohol in the body tends to produce unpleasant and even dangerous side effects. Dr Saboisky prescribed 50mg a day initially, and later 100mg a day and Dr McHue said that he found that the only ill effect he experienced was flushing in the face. Dr McHue's evidence is that he decided earlier this year to increase the prescribed dose from 100mg to 400mg – a very substantial increase and one for which he had no prescription other than his own. Dr McHue says that he has been taking that dosage on an almost daily basis and that he still experiences only flushing even when he has drunk alcohol which on his own evidence he has frequently done but not to excess. 24 We were somewhat sceptical about Dr McHue's claims that he has been taking Antabuse at the dosage he asserts or at all, but Dr Reeves did corroborate his testimony. It would appear, if Dr McHue's testimony is accepted, that he is particularly tolerant of Antabuse but it is consistent with his drinking relatively small quantities of alcohol. It is another part of the puzzle. Even on his own evidence Dr McHue has not continued to take Antabuse to help him cease alcohol consumption but to limit it. He can stop taking Antabuse at any time. 25 Dr McHue has received positive testimonials from a number of people including the general manager of the Greater Southern Area Health Service (the Service being Dr McHue's employer), Dr Yogendra Prakash Narayan, who has worked with Dr McHue since 2003, Dr Nigel Kennedy, a GP Anaesthetist, Dr Jayachandran, a surgeon who has known Dr McHue since 2003, Dr Marshall Plit, who has worked with Dr McHue since 1999 and who is an immunologist and Dr Peter Bortz, a cardiologist who has worked with Dr McHue for the last seven years; and Dr Abrar Mabool, a general surgeon who has worked with Dr McHue for three and a half years. They speak highly of his ability and the care with which he attends to his work and support his continued registration. 26 Dr McHue points to the fact that there has not since 2001 been any complaint or adverse report from the hospital concerning his conduct. There has never been any complaint as to his conduct as an anaesthetist other than the matters to which we have referred. 27 Dr Fisher, at an early stage, recommended to Dr McHue that he work towards complete abstinence, Dr McHue rejected that advice and told Dr Fisher he could impose self-control. So far as the Review Panel was concerned that experiment failed when Dr McHue on two days in December 2001, attended at work in an inebriated state. 28 It became clear at the hearing that Dr McHue was not truthful with Dr Fisher, the Board appointed psychiatrist, as to his drinking habits since 2001. He told Dr Fisher that he had abstained from alcohol for a period of 3 years but he admits that that was not true: T74.5-74.25. We regard Dr McHue's dishonest recounting to Dr Fisher of considerable significance first because Dr Fisher was providing a report to the Board to enable the Board to make important decisions about the management of Dr McHue in the Impaired Registrants' Program. Secondly, because Dr McHue had already been given a significant opportunity to avoid suspension or deregistration and breached the conditions of limited alcohol consumption. Third, we think that Dr McHue's lack of honesty with Dr Fisher emphasises the need for considerable caution in accepting anything that Dr McHue says. Dr Saboisky commented that medical students are taught, "never believe an alcoholic" and he said he never believes alcoholics: T41.17, T49.50. Assurances of abstinence, estimates of drinking both as to quantity and frequency and effect are unlikely to be reliable. That Dr McHue could attend on patients in an inebriated state demonstrates how unable he is to assess his own competence when affected by alcohol. 29 We note that in Re Dr Than Le NSW Medical Tribunal 20 September 2001 cited in Prakash v HCCC [2006] NSWCA 153, the Tribunal expressed the view that restrictions which are imposed (particularly in a disciplinary context) are not lightly imposed and must be scrupulously observed: "Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner containing as it does a grave criticism of the standard of the practitioner's conduct", and amounted to professional misconduct because the conduct was of a sufficiently serious nature to justify suspension or removal: see [96], a view with which the Court of Appeal in Prakesh appeared to agree: [74], [78], [79]. 30 Not only did Dr McHue attempt to and successfully did mislead Dr Fisher about his level of alcohol consumption he compounded that by repeating the same untruth in the statement tendered to the Tribunal and which he adopted at the hearing: see T64.25, T80.30. The reliance on Dr Saboisky's report which to the knowledge of Dr McHue (and Dr Saboisky) gave a false picture to the Tribunal is also significant. We note that Dr Fisher, who had in his report of 3 September 2007 said that while he was doubtful about the prospect of Dr McHue being able to cope with a controlled drinking approach he believed it was legitimate that Dr McHue be considered by the IRP, said that what had come to light at the hearing did not cause him to alter his view: T144.3. Dr Fisher did say that he regarded it as a necessary requirement that Dr McHue not be permitted to drink and practise medicine: T145.18-35. 31 Dr McHue had agreed in cross examination that he has deliberately attempted to mislead Dr Fisher: see T74-75 and was reluctant to agree that he had done the same thing vis a vis this Tribunal: T81-82 although at T82.6-36 he seemed to accept he had and the admission as to particular 22 and 23 that were made on the morning of 9 November 2007 is consistent with that admission. 32 There were some other indications that Dr McHue was not a reliable witness. Dr Fisher had noted that Dr McHue had told him about the 1999 incident and it appeared from Dr Fisher's report that Dr McHue had said that he had not taken the matter seriously. He denied having told Dr Fisher that he had said that, and said that it was Dr Fisher's interpretation of what he said. Dr Fisher confirmed that what he had written in his notes was what Dr McHue had told him. He was not challenged in that. Dr McHue in the witness box said that he would have one or two drinks on occasions infrequently: T78.33.Dr Reeves said that he had been drinking one or two drinks twice a month for 4 or 5 years: see T123.57-T124.1 Another example is that Dr McHue gave various reasons why he had not continued to see Dr Jurd but did not say that Dr Jurd had refused to continue treating Dr McHue, which Dr McHue had told Dr Saboisky. 33 The giving of deliberately false evidence before a disciplinary tribunal justifies a legal practitioner being struck off see Law Society of NSW v McNamara (1980) 47 NSWLR 72; Smith v NSW Bar Association (1992) 176 CLR 256, referred to in Wanigaratme v Health Care Complaints Commission [2000] NSWCA 204. We are of the view that Dr McHue's conduct in repeated breaches of the orders made and his misleading of the Board (through Dr Fisher) and attempt to mislead the Tribunal through his statement and the reliance on Dr Saboisky's report which did not present an accurate picture of Dr McHue's alcohol consumption, when taken together also amount to professional misconduct. 34 The Tribunal regards Dr McHue's attempt to mislead the Tribunal and Dr Fisher as a most serious matter. The fact of breaches are significant not only for the purposes of this matter but also for the general protection of the public because the Impaired Practitioners' Program exists as a means of avoiding removal from the Register of doctors with health problems that are impacting upon their ability to practise, and it cannot protect the public if conditions are not met and if practitioners think that they can ignore restrictions with impunity. Similarly, this Tribunal has to make decisions in which the protection of the public is the paramount consideration and the maintenance of the high standards of the medical profession is another: see HCCC v Litchfield [1977] 41 NSWLR 630 and Gayed v Walton unreported NSWCA 31/7/1997 BC9708087; Bannister v Walton (unreported NSWCA 30/04/1992 BC9201911) and see In re Zaidi [2006] NSWMT 6 at [42]. 35 It was submitted on behalf of the HCCC that the Tribunal has power to deregister Dr McHue but it was not submitted that there was no alternative but to take that course. The fact that the conduct constituting professional misconduct has been established does not mean that the practitioner must be suspended or removed: HCCC v Karalasingham NSWCA 267, [67]. The question of fitness to practise is to be determined at the date of the hearing not as at the date of the conduct: see A Solicitor v Council of the NSW Law Society 216 CLR 253 [21]; Prothonotary v P [2007] NSWCA 320, although, of course the nature and extent of the conduct in question whenever it occurred is a critical aspect of the fitness to practise. 36 An order that a medical practitioner be removed from the register carries with it the implication that the practitioner is probably permanently unfit to practise: Ex parte Lenehan (1948) 77 CLR 403 at 422; Prothonotary v Ritchard (BC8701242, NSWCA 31 July 1987, per McHugh JA); NSW Bar Association v Maddocks (NSWCA 23 August 1998). 37 If the Court is not persuaded that the practitioner is permanently unfit to practise then the proper order will usually be one of suspension or fine instead of removal per McHugh JA in Ritchard. 38 In determining the appropriate order the Tribunal is required to consider the whole of the practitioner's conduct: Gad v HCCC (2002) NSWCA 111 [55] 39 No order should be made which has more serious consequences for the practitioner that is reasonably necessary to promote the protective purpose but that is not to say that only the aim of deterring the particular practitioner is to be considered per Basten JA in NSW Bar Association v Meakes [2006] NSWCA 340, but Basten JA went on to say when dealing with whether or not a fine should be imposed on a barrister for overcharging: "There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services." 40 There are some objective signs as to how serious Dr McHue's addiction to alcohol is: 1 notwithstanding his having been warned how serious ingestion of alcohol would be in the light of conditions placed on his registration he nevertheless repeatedly drank alcohol; 2 if his evidence that he is taking Antabuse is accepted, he is prepared to drink alcohol notwithstanding its effects on him; 3 notwithstanding having been spoken to in 1999 he continued to drink and on occasion turn up inebriated to work; 4 notwithstanding his having been placed on the Impaired Registrants' Program and having a restriction on alcohol placed on him, he continued to drink to excess and attended at theatre administering or being prepared to administer anaesthetics; 5 even after the HCCC launched these proceedings he has continued to drink alcohol; 6 he has failed on numerous occasions to comply with tests that monitor for evidence of excessive or hazardous drinking. He has done this consistently over a long period; 7 he, on his evidence, supported by that of his wife, has increased the dose of Antabuse from 100mg prescribed to 400mg. 41 In his statement to the Tribunal which Dr McHue adopted at the hearing, Dr McHue does not state that he is an alcoholic and remains addicted to alcohol but his explanation in the witness box as to why he did drink notwithstanding the prohibition placed on his registration was "because I have an alcohol dependence": T66.1 (although this is discussed further below). 42 The picture of what has lead Dr McHue to a dependence on alcohol is opaque since depression, social insecurity, anxiety and genetic predisposition have all been ascribed by him as reasons: see Dr Fisher's report of 6 November 2000, Exhibit A, Tab 5, p.3 and see also T83. Dr McHue's explanation before the Tribunal as to why he drank alcohol notwithstanding express prohibition also varied. One answer suggested is that he resents authority and his drinking is a symbolic act that tells him he is in control: T104.41 or an act of defiance: T105.55-T106.9 and see paragraph 44 of Dr McHue's statement, which is part of Exhibit 1. 43 If the truth is that Dr McHue is dependent on alcohol and cannot desist then his evidence that he has not drunk to excess at any time other than in July-August 2006 is puzzling. Dr Fisher described it as paradoxical: T139.48. We have difficulty with the notion of a part-time addict who is so dependent on alcohol that he cannot give it up but can avoid drinking for many days and states that he is consistently able to limit his alcohol intake to a maximum of two standard drinks on each occasion that he does drink. On the other hand, if depression were the root cause of the drinking it seems odd that Dr McHue only turned to alcohol once the worst stages of depression were over and not before and has continued drinking well after the period of depression has ended. If defiance of the Board is the reason then it suggests not a problem with alcohol but a problem with authority and that Dr McHue suffers from an attitude problem. 44 It does appear that Dr McHue became convinced that he could continue to drink and practise as an anaesthetic medical practitioner, notwithstanding express conditions forbidding the consumption of alcohol, without any consequences and see T80.57-T81.3 and T99.39-54. He was surprised, he said, to find himself before the Tribunal and he regarded the problems with the Medical Board as grinding on: T72.53. That he should be surprised is itself surprising since as he himself admitted his record of compliance has been "appalling": T97.57. 45 Concern for the protection of the public includes consideration of the need to ensure that practitioners whose practice of medicine has been constrained by conditions, comply with those conditions and are honest with the panel, expert assessors and others whose task it is to make an assessment of the practitioner's compliance. The conditions and the monitoring are imposed in order to ensure that the public are protected whilst allowing practitioners whose conduct has come under scrutiny to continue in practice. Without honest dealing by such practitioners, the entire system developed to benefit both public and practitioner will be imperilled. Practitioners whose conduct of medicine is called into question must appreciate that this Tribunal may treat dishonest statements and explanations to the Board, to Panels and to experts appointed by the Board and to this Tribunal as justifying suspension or deregistration even where the original conduct may well not have, of itself, lead to such a result. 46 Dr Saboisky expressed the view that abandonment of alcohol was in Dr McHue's case unlikely, or unrealistic: see Exhibit 2, Tab C, p.2. 47 Dr McHue's position has swung from an assertion that he was more or less free of any alcohol dependency: see paras 32, 33, 34 of his statement the truth of which he adopted when sworn: T64.25, T80.35, to an assertion that he is unable to resist a drink: T65.57-T66.1, T94.12, T104, T106.7 48 The difficulty in determining what is the appropriate means of dealing with Dr McHue has been exacerbated by his lack of candour. We have difficulty in believing anything that he says about his level of drinking, his degree of control, even whether or not he has been taking Antabuse although at least for the past four months (since the HCCC brought this complaint against him) his wife, Dr Reeves, says he has been taking Antabuse. 49 Dr Reeves gave evidence that supported Dr McHue's claim that he has drunk modestly since 2003 and has been taking Antabuse and whilst her credit was not impugned she is not an independent impartial witness, and she said she knew nothing of his drinking in July 2006, and agrees that he could even now drink at home or outside without her knowing: T127.51-T128.9. 50 The Tribunal is dealing with a practitioner a) who could well have been the subject of a disciplinary proceeding in 2000 but for his having been placed on the Impaired Registrants' Program, and with conditions that were imposed and that were then breached. As a result of the further breaches further conditions were imposed which themselves have been breached; b) who has not been truthful about the extent of his drinking with the Board, the Board's appointed psychiatrist and with this Tribunal. He has given conflicting explanations for his breach of conditions, he has left the Tribunal in doubt as to the real extent of his consumption; c) who has been given considerable opportunity to deal with the problem of his alcohol dependency he has not committed himself to ending his addiction and complying with the terms imposed upon him. Almost 9 years have gone by since Dr McHue was first warned about the effect of his drinking on his practice and almost 6 years since he was reviewed by the IRP. We do not think that he has ever properly engaged in any full commitment to eradicating his dependency – he has resisted advice and compulsion, he has engaged in a form of denial and even perhaps defiance; But on the other hand: d) a practitioner who has worked for a very long time until 1999, and after 2001 without any incident or complaint, and has worked in an area where his services are very much required; and e) who has support for his continuation in practice from the Health Service by whom he is employed, and other colleagues. 51 The risks to which patients at the hospital would be exposed if Dr McHue were to attend in an inebriated state are high indeed. Anaesthesia involves complex management of patient and equipment and any mistake could be fatal. We accept that on the evidence the risk that Dr McHue would in fact attend inebriated are limited but he has done so on a number of occasions in the past and has proven that when drunk he is unable to adequately assess his ability to perform. Dr McHue has stated that he is on call to provide an emergency anaesthetic service: T102.50, and that he is also called in to perform procedures on intensive care patients not only during working hours: T102.25-45, but also when he is on emergency anaesthetic call and, on occasions, out-of-hours when he is not on call: T102.48 – T103.12. We accept that the risk of his attendance inebriated during normal hours is less than attendance out of hours following an emergency. 52 We accept too that there is a prospect that members of staff would realise that Dr McHue was inebriated but again past events point to the lack of certainty that they would do something about their observations. 53 Given Dr McHue's history including an episode of significant drinking as short a time ago as July last year, and the concerns of Dr Fisher and Dr Saboisky's as to a relapse, and given Dr McHue's history of depression, and his overall behaviour we have no doubt that the only basis upon which Dr McHue should be permitted to practice medicine if at all, is on the basis, inter alia , of complete abstinence from alcohol. 54 We have reached the conclusion that consistent with the protection of the public, both specifically and generally Dr McHue ought be deregistered. His conduct taking all matters into account involves professional misconduct over a number of years and continuing even after the time these proceedings were commenced against him. The Tribunal has given consideration to the question of whether suspension for a period and orders precluding Dr McHue from after hours work together with other orders might be sufficient protection but we are of the view that restrictions on, and conditions of, practice are not sufficient to ensure total abstinence. Dr McHue said that he did not think time away from practice would serve any useful purpose: T100.7. He has had the opportunity to seek treatment and has exhibited a continued unwillingness to obtain proper treatment for his alcoholic addiction. His psychiatrist expressed the view, which Dr McHue's evidence did not undermine, that he is unlikely to ever give up alcohol, and given the history of the matter, and his lack of honesty with Dr Fisher and this Tribunal, we are not satisfied that he will comply with conditions that might be imposed during or following a period of suspension. We would place a restriction on him making application for review for a period of 2 years. 55 The Tribunal therefore orders: 1) Dr McHue's name forthwith be removed from the Register of Medical Practitioners; 2) Dr McHue not be permitted to apply for review of Order 1 for a period of 2 years from today; 3) Dr McHue pay the HCCC's costs of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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