Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Goh [2014] NSWCATOD 106 Hearing dates: 4, 5 August 2014 Decision date: 26 September 2014 Jurisdiction: Occupational Division Before: Acting Judge J L O'Meally, Principal Member Dr V De Carvalho (Medical Member) Dr S Mares (Medical Member) Dr C Berglund (Lay Member) Decision: 1. Pursuant to s149C(4)(a) of the National Law the Tribunal decides that if the respondent were still registered it would have cancelled her registration. 2. Pursuant to s149C(4)(b) of the National Law the Tribunal decides the respondent is disqualified from being registered as a medical practitioner for a period of one year from this date. 3. Pursuant to s149C(4)(c) of the National Law the National Board with which the respondent was registered record the fact that the Tribunal would have cancelled the respondent's registration for a period of one year from this date. 4. The respondent is to pay the applicant's costs of these proceedings. Legislation Cited: Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW) 2009 (No. 86a) Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Wendy Goh (Respondent) Representation: Counsel Tronson (Applicant) Pike (Respondent) Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 1420098 Publication restriction: Pursuant to Schedule 5D clause 7 of the Health Practitioner Regulation National Law (NSW), publication or disclosure of the name, address or any evidence or information which might tend to or lead to the identification of the names of patients and medical practitioners, except for the Respondent identified in these proceedings is prohibited. REASONS FOR DECISION THE COMPLAINT 1The Health Care Complaints Commission (the applicant) seeks a decision pursuant to s149C(4)(a) of the Health Practitioner Regulation National Law (NSW) 2009 (No. 86a) (the National Law) that if Wendy Goh (the respondent) were still registered as a medical practitioner the Tribunal would have cancelled her registration. It also seeks consequential orders. 2The complaint against the respondent is in the following form: TAKE NOTICE THAT the Medical Tribunal of New South Wales has received a complaint from the Health Care Complaints Commission following consultation with the Medical Council of New South Wales ("the Council") in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law ("the National Law") THAT Wendy Goh MED0001180608 of 16 Christel Avenue, Carlingford NSW 2118 ("the practitioner"), being a medical practitioner registered under the National Law COMPLAINT ONE Has been guilty of unsatisfactory professional conduct within the meaning of section 139(B)(1) of the National Law in that she has engaged in improper or unethical conduct relating to the practice of medicine: Background to Complaint One The practitioner was first registered as a medical practitioner in 1997 and made a Fellow of the Australian and New Zealand College of Anaesthetists in 2007. From January 2007 to July 2007 the practitioner practised as an accredited anaesthetics provisional fellow at the Royal Hospital for Women. Between July 2007 and February 2009, the practitioner worked as a staff specialist anaesthetist at Westmead Hospital and as a Visiting Medical Officer (VMO) anaesthetist at Bankstown Hospital. Between the period July 2007 and 26 May 2011, the practitioner worked as a VMO at the Royal Hospital for Women, Ryde Hospital and did locum work at Gosford Hospital. PARTICULARS OF COMPLAINT ONE 1. On 11 July 2011, the practitioner wrote a prescription for Temazepam for herself, and falsely signed the prescription as Medical Practitioner K. 2. The practitioner wrote false prescriptions for Temazepam for her own use by using the prescription pad of Medical Practitioner L and signing the prescription as Medical Practitioner L on: (a) 12 June 2011; (b) 22 June 2011. 3. On 16 June 2012, the practitioner wrote a false prescription in the name of Patient A for Zolpidem, for the purpose of obtaining the medication for her own use, by using the prescription pad of Medical Practitioner L and signing as Medical Practitioner L. 4. The practitioner wrote false prescriptions in the name of Patient A for Temazepam, for the purpose of obtaining the medication for her own use, by signing the prescriptions as Medical Practitioner M on: (a) 13 September 2011; (b) 27 September 2011. 5. On 15 March 2012, the practitioner wrote a false prescription for Zolpidem for Patient D, for the purpose of obtaining the medication for her own use, by signing the prescriptions as Medical Practitioner M. 6. The practitioner wrote false prescriptions for Zolpidem, for the purpose of obtaining the medication for her own use, by signing the prescriptions as Medical Practitioner M on: (a) 5 June 2012 for Patient A; (b) 1 July 2012 for Patient H 7 .The practitioner wrote and signed prescriptions for Zolpidem which were false in that the practitioner issued the prescriptions for the purposes of having the medication dispensed to the practitioner for her own use, on: (a) 15 May 2012 for Patient B; (b) 6 June 2012 for Patient J (c) 19 July 2012 for Patient E (d) 20 July 2012 for Patient E (e) 27 July 2012 for Patient J 8. On 6 July 2012, the practitioner wrote a false prescription for Temaze for herself, by signing as Medical Practitioner N. 9.The practitioner wrote prescriptions for Zolpidem which were dispensed at the Priceline Pharmacy in North Rocks, which were false, in that the practitioner issued the prescriptions for the purpose of having the medication dispensed to the practitioner for her own use on: (a) 28 February 2012 for Patient B; (b) 10 March 2012 for Patient C; (c) 19 March 2012 for Patient F; (d) 25 March 2012 for Patient E (e) 9 June 2012 for Patient A; (f) 10 June 2012 for Patient C; (g) 17 June 2012 for Patient C (h) 20 July for Patient E; (i) 22 June 2012 for Patient G; (j) 2 July 2012 for Patient I; (k) 24 July 2012 for Patient I; (l) 27 July 2012 for Patient I. 10. On 29 June 2012, the practitioner gave false information to the treating psychiatrist approved by the Council for the purpose of the conditions on her registration, in that she told him that she was meeting with her counsellor two times per week. 11. Between approximately 1 March and 30 July 2012, the practitioner wrote false medical certificates in the name of her general practitioner, Medical Practitioner O, to excuse herself from thirteen absences from UDT for the periods: (a) 9 to 14 March 2012 on 9 March 2012; (b) 9 to 18 June 2012 on 9 June 2012; (c) 16 to 22 June 2012 on 19 June 2012; (d) 30 to 31 July 2012 on 30 July 2012. COMPLAINT TWO Has been guilty of unsatisfactory professional conduct within the meaning of section 139B (c)(i) of the National Law in that she has contravened conditions to which her registration was subject Background to Complaint Two As for Complaint One. Following a hearing pursuant to section 150 of the National Law hearing on 26 May 2011, the Council, determined that it was appropriate to impose conditions on the practitioner's registration. Conditions were imposed on 8 July 2011 and included the following: Practice Conditions ...................... 9. To nominate a supervisor prior to commencing employment, to be approved by the Council, to monitor and review her clinical practice and compliance with conditions in accordance with Level 3 Supervision as contained in the Council's protocol. The supervisor is to be provided with a copy of all conditions of registration, this written decision and the Council's supervision policy. The practitioner is to ensure that: (a) She and the supervisor meet on a fortnightly basis for at least one hour, the first meeting to occur within one fortnight of being advised by the Council that her nominated supervisor has been approved. ......................... (e) The supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, clinical performance, health or if the supervisor relationship ceases. The practitioner authorises the supervisor to provide such information to the Council. ...................... Health Conditions 1. Not to prescribe for self-medication. 2.Not to self-administer: (a) any Schedule 4 or 8 Drug (b) any narcotic derivative, non-prescription compound analgesic or cold medication Such medications must only be prescribed and taken at the direction of her treating practitioner. ...................... 4. To attend thrice weekly Urine Drug Testing (UDT) in strict accordance with the Council's protocol. Results of UDT are to be forwarded to the Council appointed and treating practitioners and to the Council. She understands that such UDT will be at her expense. 5. To attend for treatment by a general practitioner of her choice, at a frequency to be determined by the practitioner and the treating practitioner. To authorise her treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is significant change in health status (including a significant temporary change). 6. To attend for treatment by a psychiatrist of her choice, at a frequency to be determined by her treating psychiatrist. To authorise her treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 7. To attend for treatment by a psychologist of her choice, at a frequency to be determined by the treating practitioner. To authorise the treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 8. To comply with any treatment prescribed or recommended by her treating practitioners, including medication. ...................... Following another hearing pursuant to section 150 of the National Law on 15 August 2011, the Council imposed the following additional condition on the practitioner's registration: Practice Conditions 11. To obtain the written approval of the Council before commencing any position involving the practice of medicine and for this purpose to submit to Council written particulars of any such position. ...................... Following another hearing pursuant to section 150 of the National Law on 17 November 2011, the Council varied the conditions on the practitioner's registration from 20 November 2011 to include: Practice Conditions 1. To practice only in the Council approved Emergency Medicine position at Canterbury Hospital. ...................... Health Conditions ...................... 2. Not to self-administer: (a) any Schedule 3 or Schedule 8 Drug; (b) any narcotic derivative, nonprescription compound analgesic or cold medication. Such medications must only be prescribed and taken at the direction of her treating practitioners. Following a further hearing pursuant to section 150 of the National Law on 21 August 2012, the Council suspended the practitioner's registration on 4 October 2012 pursuant to section 150(1)(a) of the National Law. PARTICULARS OF COMPLAINT TWO 1. The practitioner prescribed Temazepam, being a Schedule 4D drug, for selfmedication in contravention of Health Condition 1 on: (a) 12 June 2011, in the name of Patient A; (b) 13 September 2011, in the name of Patient B; (c) 7 September 2011, in the name of Patient B; (d) 22 June 2012, in her own name. 2. The practitioner prescribed Zolpidem being a Schedule 4D drug, for selfmedication in contravention of Health Condition 1 on: a. 28 February 2012 in the name of Patient B; b. 10 March 2012 in the name of Patient C; c. 15 March 2012 in the name of Patient C; d. 19 March 2012 in the name of Patient F; e. 25 March 2012 in the name of Patient E; f. 9 June 2012 in the name of Patient A; g. 10 June 2012 in the name of Patient C h. 13 June 2012 in the name of Patient Dr Wendy Goh; i. 16 June 2012 in the name of Patient B; j. 17 Jun (sic) 2012 in the name of Patient C k. 1 July 2012 in the name of Patient D; l. 16 July 2012 in the name of Patient Dr Wendy Goh; m. 20 July 2012, in the name of Patient E; n. 24 July 2012, in the name of Patient I. 3. On or about 14 May 2012 the practitioner prescribed for Somidem (Zolpidem) being a Schedule 4D drug, in the name of Patient B, for selfmedication in contravention to Health Condition 1. 4. On 6 July 2012, the practitioner prescribed Temaze, being a Schedule 4 drug, for herself for self-medication, by using the Canterbury Hospital prescribing pad and signing as Dr Mohammadi, in contravention of Health Condition 1. 5. Between 12 June 2012 and 6 July 2012, the practitioner self-administered Temazepam being a Schedule 4D drug in contravention of Health Condition 2, as varied on 17 November 2011. 6. Between 28 February 2012 and 24 July 12, the practitioner self-administered Zolpidem, being a Schedule 4D drug, in contravention of Health Condition 2, as varied on 17 November 2011. 7. The practitioner contravened Health Condition 2 by self-administering a schedule 4D drug in that: (a) . the UDT results showed the practitioner tested positive for benzodiazepines on: i. 22 July 2011; ii. 25 July 2011; iii. 29 July 2011; iv. 13 January 2012 (in respect of conditions as varied on 17 November 2011). (b) The practitioner tested positive for phentermine on: i. 4 August 2011; ii. 29 August 2011; iii. 31 August 2011; iv. 2 September 2011. (c) The practitioner admitted to ingesting Zolpidem in approximately late January 2012. (d) The practitioner admitted to ingesting Temazepam in approximately July 2011. 8. The practitioner failed to comply with the UDT Protocol DD13/04001, in contravention of Health Condition 4, in that the practitioner failed to give five days prior notice to the Council of her anticipated absence from UDT on: (a) 12 August 2011; (b) 07 September 2011; (c) 24 October 2011; (d) 30 December 12011; (e) 09 January 2012. 9. The practitioner failed to comply with UDT Protocol DD13/04001, in that she failed to explain her absence from UDT within 10 days of her absence from UDT, in contravention of Health Condition 4, on: (a) 12 August 2011; (b) 07 September 2011; (c ) 24 October 2011; (d) 30 December 12011; (e) 09 January 2012. 10. The practitioner failed to attend for treatment with her psychiatrist, in contravention of Health Condition 6 on: 25 May 2012; 15 June 2012; 22 June 2012; 20 July 2012; 27 July 2012; 03 August 2012. 11. Between 11 June 2011 and 20 August 2012, the practitioner failed to attend for treatment with a psychologist of her choice, in contravention of Health Condition 7. 12. The practitioner failed to comply with treatment as recommended by her psychiatrist, by failing to attend the Drug and Alcohol Day program at Northside West Clinic in contravention of Health Condition 8, on: a. 27 April 2012; b. 04 May 2012; c. 11 May 2012; d. 18 May 2012; e. 25 May 2012; f. 01 June 2012; g. 08 June 2012; h. 15 June 2012; i. 22 June 2012; j. 06 July 2012; k. 13 July 2012; l. 20 July 2012; m. 27 July 2012; n.03 August 2012. 13. Between approximately 1 April 2012 and 31 July 2012, the practitioner failed to meet with her supervisors on a fortnightly basis, in contravention of Practice Condition 9. COMPLAINT THREE Has been guilty of professional misconduct within the meaning of section 139E of the National Law in that she has: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration; and/or (ii) has engaged in unsatisfactory professional conduct on a number of occasions which, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of her registration. Background As for Complaints One and Two PARTICULARS OF COMPLAINT THREE Complaint One and Complaint Two and the particulars thereof are repeated and relied upon, both individually and cumulatively. COMPLAINT FOUR The practitioner has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of medicine. Background As for Complaints One and Two PARTICULARS OF COMPLAINT FOUR 1. The practitioner suffers from: (a) An addiction to and an abuse of Benzodiazepine and Zolpidem; (b) Major depressive episode with anxiety and panic attacks. COMPLAINT FIVE The practitioner is not competent to practise medicine within the meaning section 139 (a) of the National Law in that she does not have sufficient physical capacity, mental capacity, knowledge and/or skill to practise medicine. Background As for Complaints One and Two PARTICULARS OF COMPLAINT FIVE Complaint Four and the particulars thereof are repeated and relied upon, both individually and cumulatively. DATED this 27th day of November 2013 EARLIER PROCEEDINGS 3The respondent has a history of abuse of benzodiazepines. Until 28 July 2014, shortly before these proceedings were heard, she was a registered medical practitioner. On that day, at her own request, her name was removed from the register of practitioners. 4As detailed in the particulars of complaint, there have been earlier proceedings involving the respondent. 5On 26 May 2011, proceedings were brought under s150 of the National Law. Relevant to the matter now before the Tribunal, those proceedings before delegates of the Medical Council concerned the respondent's use of benzodiazepines. In the result, the respondent was permitted to continue practising, but subject to conditions. 6Further proceedings were heard by delegates of the Medical Council on 15 August 2011 and determined on 13 September 2011. Relevantly, those proceedings concerned continuing use by the respondent of benzodiazepines. On 13 September 2011, the delegates found that the respondent suffered from an impairment and a further condition was imposed upon her registration. 7On 20 October 2011, further proceedings under s150 of the National Law were heard. Again, the principal matter under consideration was the respondent's use of benzodiazepines. On 17 November 2011, a further condition was imposed upon the respondent's registration. 8The respondent failed fully to comply with conditions and on 21 August 2012, further proceedings concerning her drug use came before delegates of the Medical Council. The respondent's registration was suspended, effective from 21 August 2012, in the decision of the delegates of the Medical Council given on 4 October 2012. 9On 9 April 2014, the respondent sought a review of the decision of 21 August 2012 and on 19 May 2014 the delegates determined that the respondent's registration would remain suspended. 10On 26 June 2014, after the hearing of these proceedings had been fixed for hearing, the respondent again applied to have the suspension order lifted. On 3 July 2014, the delegates affirmed the earlier decision. An appeal against that decision was lodged, but not proceeded with. THE RESPONDENT 11The respondent was born on 5 April 1973. She obtained graduate degrees in medicine and surgery from the University of Sydney in 1997. In 2007, after a five years course of training, she became a Fellow of the Australian and New Zealand College of Anaesthetists. Between graduating in 1997 and receiving her Fellowship, she worked in a variety of capacities in a number of hospitals in metropolitan and country New South Wales and in the Australian Capital Territory. 12Exhibit RX1 is a statement by the respondent bearing date 19 May 2014. In that statement, the respondent describes her postgraduate activity and her health from about 2008 when, she says, she "began developing Raynaud's Syndrome in my hands and feet". She added that preliminary blood tests were indicative of SLE (Systemic Lupus Erthematosus) and she was referred to Dr Karl Baumgart, a clinical immunologist, who commenced her on a course of prednisolone, aspirin and felodipine. The respondent said there was no significant improvement in her condition and her work began to suffer. In 2009, she says, she began to self-prescribe and use temazepam to help her sleep. In October 2009, she was notified to the Medical Council of New South Wales. She was unable to cope with work and took five weeks off. She was seen by Dr Susan Messner, a Medical Council appointed psychiatrist who was engaged to examine and report to the Council. 13In May 2010 she commenced a relationship with a man whom she believed to be divorced. This was not the case and the man's wife, of whose existence she was previously unaware, took out an interim AVO against her. In her statement, the respondent proceeded to say that from October 2010 she sank into deep depression with associated anxiety and panic attacks, which she related to an upcoming court case concerning the AVO. It was then, she said, that she began abusing benzodiazepines. ADMISSIONS 14As to the first complaint, that is, that the respondent is guilty of unsatisfactory professional conduct within the meaning of s139B(1) of the National Law, having engaged in improper or unethical conduct relating to the practice of medicine, in that she wrote false prescriptions in order to obtain drugs and gave false information to her then treating psychiatrist and wrote false medical certificates in the name of her general practitioner, that is admitted. 15Complaint two, that is, that the respondent engaged in unsatisfactory professional conduct within the meaning of s139B(c)(i) of the National Law in that she contravened conditions to which her registration was subject, is admitted. The conditions related to her possession, injection and prescription of Schedule 4 and Schedule 8 drugs, to urine drug testing and to treatment and supervision. 16Complaint three, that is, that the respondent engaged in professional misconduct within the meaning of s139E of the National Law, is admitted. The basis upon which that complaint is made is contained in the particulars of complaints one and two. 17As to complaint four, that is, that the respondent has an impairment within the meaning of s5 of the National Law that detrimentally affects or is likely to detrimentally affect her capacity to practise medicine in that she suffers from an addiction to and abuse of benzodiazepines and zolpidem and major depressive episodes with anxiety and panic attacks, that complaint is admitted. 18Complaint five is not admitted. That complaint is that the respondent is not competent to practise medicine within the meaning of s139(a) of the National Law in that she suffers from an addiction to and abuse of benzodiazepines and zolpidem and major depressive episodes with anxiety and panic attacks. 19In addition to the statement of 19 May 2014, RX1, a further statement of the respondent, bearing date 28 July 2014, was admitted as RX4. In that statement the respondent expressed her intention not to appear before the Tribunal or to give evidence at this hearing. She acknowledged that she was not fit to practise medicine at the present time, and said she was suffering from an impairment within the meaning of the National Law. She accepted that her impairment continues to affect her ability to practise medicine. Paragraph 4 of her statement is in these words: I do not contest the Complaint. The Particulars of the Complaint are admitted as follows: a. Particulars 1, 2, 3 and 4 are admitted. b. Particular 5 is left to the Medical Tribunal. 20During the course of addresses by counsel, Mr Pike, who appeared for the respondent, indicated that the effect intended to be conveyed by paragraph 4(b) of the statement was that while not denying its substance, neither was it admitted, and she put the applicant to proof. 21It is appropriate to note that the admissions made by the respondent in her statements have been maintained by her counsel during the course of the hearing and we are satisfied those admissions are well justified by the evidence. 22In considering what should be the result of these proceedings it is important to remind ourselves that the jurisdiction of the Tribunal is protective in nature, not punitive. We are required to take into account the maintenance of the standards of the medical profession, maintenance of public confidence in the profession and the protection of the community. Our primary purpose is the protection of the health and safety of the community. EVIDENCE 23On 27 July 2012 Dr Stan Theodorou, the respondent's then treating psychiatrist, reported to the Health Program Manager of the Medical Council that "Dr Goh has been erratic with her attendances [upon him] since 20/4/12". At that time, and for some period before, the respondent had been under the Impaired Registrants Scheme established by the Medical Council. Apart from noting that she had been erratic with her attendance upon him since 20 April 2012, Dr Theodorou also noted that her counsellor was concerned about lack of attendance upon her. Dr Theodorou expressed his concern that there was a possible abuse of sedatives. 24Dr Andrew Watson was one of the respondent's supervisors at Canterbury Hospital Emergency Department in 2012. On 24 January 2013, he made a report to the applicant concerning the respondent. Among other things, he noted that there were occasions when the respondent would fail to notify she was not attending her shift and that on one occasion, at least, she appeared to be in an abnormal mental and physical state, slow to respond to questions and repetitively asked questions already answered. He noted that her eyes were only half open most of the time. She was suspended from Canterbury Hospital as a result of an investigation into an allegation of writing a script for temazepam for herself. When she attended fortnightly meetings with Dr Watson, as a condition of her continuing practice, she was reluctant to discuss her psychological problems which she attributed to her Lupus treatment. He thought that the respondent had a poor insight into her problems. 25In a further report of 25 February 2013, Dr Theodorou recorded the respondent's admissions as an inpatient to the Drug and Alcohol Unit at Northside West Clinic between 7 August and 20 August 2012 and between 2 October and 30 October 2012. In that report, Dr Theodorou recorded that the respondent appeared to have remained abstinent as evidenced from urine drug screens and attendance at a day program. She had accepted that she was benzodiazepine dependent and was committed to attending the day program twice per week. Dr Theodorou thought that "despite her turbulent period last year", she appeared to have stabilised and appeared also to be in remission. We have no report from Dr Theodorou after February 2013. 26We have a number of reports from Dr Susan Messner, who, as previously noted, was appointed to examine and report upon the respondent. Additionally, we heard oral evidence from Dr Messner received by telephone link. In the first report of 12 June 2012, Dr Messner made reference to the s150 proceedings before the delegates of the Medical Council and to breaches of conditions imposed. She also noted other s150 hearings before the delegates. At the time of writing that report, Dr Messner thought that the respondent was continuing recovery from a significant benzodiazepine addiction and abuse. She noted that the respondent continued to see her treating psychiatrist, Dr Theodorou, and was compliant with medication prescribed. Dr Messner then expressed the view that no changes should be made to the conditions under which the respondent was permitted to practise and a review should take place in three months' time. On 7 April 2014, Dr Messner reported upon a consultation of 1 April 2014. The history of appearances before the delegates of the Medical Council pursuant to s150 was noted. Dr Messner did express concern at the contradiction between the history given to her by the respondent in June 2012 regarding "her recent holiday, her general health both psychological and physical and her enjoyment of her work situation and the history given at the most recent interview regarding the same events". 27Dr Messner also recorded having seen a letter dated 10 January 2014 from Dr Hook, the respondent's then treating psychiatrist. That letter or report is not before us, but Dr Hook is recorded as considering that the respondent was making good progress and based upon information available to him he supported the lifting of suspension providing she remained in treatment and under an appropriate level of supervision. 28We do have a report from Dr Hook, which bears date 22 June 2014. Dr Hook was of the view that "From the perspective of her emotional well-being it would be desirable if she could return to the medical workforce". He did not address the questions whether the respondent had an impairment or was competent to practise medicine, no doubt because, to our surprise, he was not asked to do so. 29In her report of 24 June 2014, Dr Messner expressed the view that the respondent was continuing to suffer from an impairment as defined in the National Law. She recorded that the respondent suffered from an abuse of and an addiction to sedative hypnotics, which, if there were clear urine testing, she would consider her to be in the early stages of remission. There were symptoms of major depression disorder and panic disorder, both of which appeared then to be in remission. 30In a report to the applicant on 31 July 2014, Dr Messner considered that the respondent was not competent to practise medicine because she lacked sufficient physical or medical capacity to do so. 31We are comfortably satisfied each complaint has been made out. The matter now requiring consideration is what should flow as a result. 32The following matters are relevant. 33Dr Messner did not believe that the respondent presented in a frank manner when discussing her abuse of sedative hypnotics and her behavior to obtain these substances as well as concealing her illness. Dr Messner recorded the respondent's significant history of sedative hypnotic abuse and noted that previous monitoring conditions failed to act as a deterrent to her use of these substances. The respondent was reluctant to accept the suggestion that she had been addicted, though she did acknowledge that she had abused those substances. Dr Messner was of the view that the respondent remained vulnerable and a practitioner at risk. Nevertheless, in April 2014, it was Dr Messner's opinion that it would be reasonable for the respondent to have the suspension order on her registration lifted, but subject to conditions. 34The respondent's representatives themselves wrote to Dr Messner on 8 July 2014 seeking that Dr Messner provide an ongoing assessment and an opinion on the respondent's health and her ability to practise medicine. In her response of 24 July 2014, Dr Messner referred to the s150 proceedings on 9 April 2014 which failed to secure lifting the suspension of the respondent's registration. Dr Messner noted that the respondent had stated that the reason for the failure to lift the suspension was that some of her urine specimen results were noted to have been diluted and no application to reapply for registration was to be made for six months. Dr Messner, seemingly, had read the decision as she records that other reasons were given, including her lack of presenting a frank account of earlier drug seeking behavior, and the lack of a recent report from her treating psychiatrist. It was Dr Messner's opinion that the respondent was currently suffering from an impairment and from abuse of and addiction to sedative hypnotics. Dr Messner concluded her report with these words: I do not consider Dr Goh is currently fit to practise medicine. In April 2014 the Decision of the Section 150A hearing, dated 9 April 2014, she was informed she was required to provide Council with six months of clear urine drug screening test results in strict compliance with the Council's protocol. I have seen no test results since that time, so am unable to comment on the results. However, Dr Goh informed me at the interview that she has possession of the kits which she takes to local pathologists to give her samples. It is my understanding that this is against Council Protocol regarding chain of custody. Therefore, a period of six months of tests performed with strict compliance to the protocol should be required before she is considered fit to resume practice. 35None of this is disputed by or on behalf of the respondent. The question is whether we should decide that, if the respondent were still registered, we would have suspended or cancelled her registration, and whether also, the consequential orders sought by the applicant should be made. If the first order is made the consequential orders will follow as a matter of course, but with one exception, mentioned at the conclusion of our reasons. 36The respondent did not give evidence before the Tribunal nor did she attend the hearing. As a result, we have been hampered by her failure to give us insight into her situation and to address directly the questions we are required to answer. It is true, as Dr Messner noted in her report of 7 April 2014, that the Tribunal hearing would be extremely stressful, adding that there was time for her to organise a strong and attentive network to support her during the process. However, we have no evidence that the respondent was unfit to attend these proceedings. THE RESPONDENT'S CASE 37Objection was taken by Mr Pike, counsel for the respondent, to the evidence of the deliberations of delegates of the Medical Council and, in particular, objection to the determination of the delegates on the issue of the respondent's insight. The written decisions of the delegates were admitted, but neither their reasons nor the evidence before them which is not before us, are relevant to any matter we are to consider. What is relevant, however, is the decision made in each of the proceedings including the conditions imposed upon the continuing registration of the respondent. Indeed, Dr Messner has considered the extent of compliance with conditions to be a material matter in expressing her own opinions. 38Mr Pike emphasised that upon being suspended the respondent was no longer subject to the conditions which had been imposed upon her registration. Despite this, voluntarily and at her own expense, she underwent urinalysis on 107 occasions. Each result, save for three in February 2013, was clear. 39The respondent has placed before us a report of Dr Michael Robertson, a forensic toxicologist, in which, speaking of a model encrypted result in urinalysis, he said it does not and should not be used to infer drug use. Be that as it may, the protocols of the Medical Council were not observed, which Dr Messner thought to be a material matter. 40It was submitted on the respondent's behalf that her regime of testing demonstrated considerable insight and determination on her part. It is further submitted that the fact that it was not done in absolute compliance with the Council's protocol does not diminish its evidentiary value. It is submitted that there can be no suggestion on the evidence that the results are anything but genuine. 41We do not agree. Dr Messner expressed the view that a period of six months of urinalysis performed in strict compliance with the protocol would be required before consideration could be given to the respondent's resuming practice. 42It is submitted for the respondent that we would not be satisfied that the respondent's registration would not have been cancelled had she remained registered. It is said that the threshold is not satisfied in the present case. That is because there is evidence before us of her abstinence, her attempts to prove abstinence, her engagement in therapy and ultimately her insight in recognising that at the present time she lacks the requisite fitness to be on the register. DISCUSSION 43On the evidence presented, and for reasons which later follow, we have come to the view that we would have removed the respondent from the register had she not herself made an application to have her name removed. Her acceptance of the particulars of complaints one, two, three and four in itself leads to findings of unsatisfactory professional conduct and professional misconduct. The details of the complaints and the particulars which are not disputed demonstrate dishonesty, prolonged and repeated disregard for acceptable personal and professional standards, a lack of understanding of the public interest in ensuring professional standards, and of the respondent's inability fully to confront the seriousness of her actions upon others, rather than only upon herself. 44The matter of impairment is complex. The respondent's acceptance of her substance abuse provides only one aspect in the understanding of her problems. The background issues of depression, anxiety and panic attacks have been reported and treated in some fashion at least since the middle of 2009. In her reports of 7 April 2014 and 27 July 2014, Dr Messner said the respondent is impaired by virtue of her addiction and substance abuse. In her oral evidence to the Tribunal on 5 August 2014, Dr Messner explained that she last saw the respondent in person on 17 July 2014 at which time she said that the respondent still suffered from anxiety and depression, but was in remission and was responding to treatment, but was not cured. 45Dr Messner went on to qualify her comment in relation to the respondent's dependence and anxiety being in some form of remission when she was informed that the respondent had removed herself from the register and had decided not to attend the Medical Tribunal. These actions were a surprise to Dr Messner who recalled that the respondent expressed a strong desire to remain a practising doctor but had an understandable apprehension related to the Tribunal proceedings. She had made future plans about her medical practice. The unpredictable nature of her decision and actions within a short period since being seen two weeks previously, led Dr Messner "to be wary about her impairment and rehabilitation". Dr Messner also said she had "a working hypothesis" that the respondent might have self-medicated to treat her anxiety and depression. As a result, she thought the anxiety and depression were factors contributing to the impairment. 46Dr Messner provided a report bearing date 24 July 2014, of a recent psychiatric review on 8 July 2014. The respondent told Dr Messner that when she was last dishonest in August 2012, she wrote prescriptions in other doctor's names on blank prescription pads and wrote fraudulent medical certificates for herself. She was at that time "too arrogant and deceitful" and was desperate to obtain drugs. Dr Messner could not comment on the respondent's insight into why she had done what she had. 47The applicant argues that there were concerns about the respondent's frankness evidenced in the reports of Dr Messner as late as 2014. The respondent's failure to comply with treatment as recommended by her psychiatrist, or her false assertions that she was attending the counsellor when she was not, similarly have not been explored. 48In her statement of 28 July 2014 the respondent acknowledged that she is "not fit to practise medicine at the present time as I am suffering from an impairment". She conceded that "my impairment continues to affect my ability to practise medicine". The report from Dr Messner of 31 July 2014 records her opinion that "I do not consider Dr Goh to have sufficient physical and mental capacity to be competent to practise medicine currently". That opinion of Dr Messner predates her oral evidence to the Tribunal on 5 August 2014 which added to the Tribunal's concern about the current extent of the respondent's various impairments, her competence, her insight into her problems, and the potential for successful remediation and the timeframe of such treatment. 49The fact that the respondent chose not to appear before the Tribunal creates difficulties for us in that she was unable to provide direct evidence relating to various areas upon which clarification would have been helpful. Nor did we have the opportunity to explore with her the details of, or her current understanding of, the circumstances leading to and associated with her repeated unsatisfactory professional conduct admitted and outlined in complaints one to three and occurring between 12 June 2011 and 3 August 2012. 50The difficulties thus created include a lack of information about her understanding of the impact of her behaviour towards her medical colleagues in being dishonest with them, falsifying prescriptions and medical certificates using their names, compromising a family member, both professionally and personally, explaining her decision-making processes related to removing her name from the register on 28 July 2014 and understanding her reasoning in admitting complaints one, two, three and four and leaving complaint five "to the Tribunal". It is regrettable that the respondent did not attend the Tribunal. We have difficulty in judging her insight into the complaints and into her impairment. 51Complaint four is that the respondent suffers from an impairment, namely, an addiction to and abuse of benzodiazepines and zolpidem and major depressive episodes with anxiety and panic attacks. 52The nature and severity of her impairment are relevant to complaint five. We have found that she is not competent to practise medicine and this is relevant to the Tribunal's protective function. Her current state of health is relevant to the question whether she is in remission or recovery from the illnesses contributing to her impairment. Relevant, also, is the prognosis of the illnesses which contribute to her impairment. 53Dr Messner said that she was not in a position to give an opinion about whether the respondent's impairment was sufficient explanation for her misconduct as "she has not been forthcoming about her conduct". Further, in her evidence and in response to questions from Mr Pike, Dr Messner outlined components of insight, that is, that the removal of her name from the register, might have demonstrated insight about "what I have done" and might have demonstrated insight "that what she had done was wrong". Dr Messner said that this did not indicate that the respondent had insight into "why I have behaved this way". Later, Dr Messner said "we never discussed any reason why she abuses medication". 54Urinalysis undertaken voluntarily by the respondent and with the results provided by her, indicate that urine testing was positive for benzodiazepines in February 2013. This occurred seven months after the period during which the complaints arose and indicates continuing benzodiazepine use, despite her suspension by the New South Wales Medical Council after the section 150 hearing in August 2012. This, in addition to the severe and repeated nature of admitted misconduct in order to obtain drugs between June 2011 and August 2012, suggests severe and persisting drug addiction. Further adequate engagement in treatment will be essential to her recovery and capacity to reenter practice safely. 55Mr Pike argued that her withdrawal of her name from the register indicated insight into her impairment. As the respondent did not appear, the Tribunal does not have sufficient information from her to determine whether this is the case. Nor does the Tribunal have sufficient information to determine whether she is currently in remission from anxiety and depression or substance abuse. 56As noted, Dr Messner indicated that the respondent's decision to remove her name from the register had "surprised" her, and she considered the respondent's behaviour "unpredictable", observing that only a week before she had expressed a commitment to return to practice in the near future if permitted to do so by the Tribunal. 57The Tribunal lacks evidence to allow it to determine whether this "unpredictable behaviour" indicates insight, as argued by Mr Pike, or a continuation and exacerbation of her admitted impairment in worsening anxiety and/or depression. Consideration of insight into her admitted misconduct is important as part of the protective function of the Tribunal. 58The respondent has been reluctant to discuss details of her admitted misconduct with either her treating practitioners or psychiatric assessor. When questioned by them on this conduct, she often replied that she did not remember, or that her impairment had been the cause of the conduct. The statement of 19 May 2014 predated the removal of her name from the medical register effective from 27 July 2014. At that time she expressed a desire to be in general practice, accepting conditions would be imposed and compliance required. 59Although she has admitted complaints one to four, her written statements provide scant detail of events related to her impairment or to her conduct during the period between June 2011 and August 2012. The Tribunal agrees with Ms Trounson, counsel for the applicant, that these are outlined in "short compass" and briefly admitted in paragraphs 22 and 28 of her statement of 19 May 2014. 60The Tribunal was particularly concerned about the serious and persistent dishonesty associated with her conduct. In the course of obtaining medications intended for her own use, her behaviour included forgery of prescriptions from Canterbury Hospital, which was her place of employment; scripts were written in the name of her treating general practitioner, her treating immunologist and psychiatrist and a family member, who was also a medical practitioner. Similarly, in the forgery of medical certificates asserting unfitness for work, the respondent used the name and details of one of her treating general practitioners. These transgressions showed a disregard for the regulation of prescription medicines, and the certification process entrusted to medical practitioners, disregard for the conditions placed on her registration; and disregard for the care and therapeutic relationships provided by her treating doctors. As a health practitioner, the respondent was well placed to comprehend the gravity of her persistent and repeated unprofessional misconduct, yet she demonstrated little insight or regret for the position in which she placed other practitioners, the profession, or the community as a consequence of her conduct. 61Counsel for the respondent argued that by removing her name from the register she was displaying insight into the gravity of her conduct. She stated that she did so on the basis of her current unfitness to practise, but provided no elaboration of her understanding of factors contributing to her current unfitness or to determine impairment. In oral evidence, Dr Messner indicated that this decision surprised her. Dr Messner was more reserved about her prior opinion that six months of clear urine and compliance with the Council protocols for screening would be likely to ensure that the respondent was fit to return to practice. The recent action of the respondent in removing her name from the register despite her expressed desire to continue to practise medicine highlights the unpredictability of the situation. 62The Tribunal accepts the applicant's submission that the admitted misconduct was very serious. The Tribunal accepts the submission that the expressions of remorse and regret are important indicators of insight. The Tribunal accepts there is currently a lack of such expression of sufficient insight or awareness on the respondent's part into her past conduct. In the absence of evidence that the respondent is willing to explore the implications of her past misconduct for others rather than for herself, the Tribunal cannot be comfortable that the respondent has gained sufficient insight into her past misconduct and that she has strategies to avoid a repetition of such breaches in the future. 63The Tribunal is not satisfied that the respondent is currently physically and mentally competent to practise medicine. 64We accept the opinion of Dr Messner expressed in her report of 31 July 2014 that the respondent does not "have sufficient physical or mental capacity to be competent to practise medicine currently". 65The applicant seeks a decision that the period for which she would have had her registration cancelled had she been still registered, would have been two years. We believe a period of one year suits the circumstances of the case, taking into account that the respondent has been suspended from practice since August 2012. 66The applicant did seek an Order that the review body for any future application by the respondent for registration as a medical practitioner be NCAT, but in light of the decision of the Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307, such an order is inappropriate. ORDERS (1)Pursuant to s149C(4)(a) of the National Law the Tribunal decides that if the respondent were still registered it would have cancelled her registration. (2)Pursuant to s149C(4)(b) of the National Law the Tribunal decides the respondent is disqualified from being registered as a medical practitioner for a period of one year from this date. (3)Pursuant to s149C(4)(c) of the National Law the National Board with which the respondent was registered record the fact that the Tribunal would have cancelled the respondent's registration for a period of one year from this date. (4)The respondent is to pay the applicant's costs of these proceedings. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 26 September 2014