Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Baraz [2015] NSWCATOD 39 Hearing dates: 15, 16 & 17 December 2014 Date of orders: 22 April 2015 Decision date: 27 April 2015 Jurisdiction: Occupational Division Before: G Mullane Hon ADCJ (Presiding Member) Dr V de Carvalho (Professional Member) Dr P Anderson (Professional Member) M Gleeson (General Member) Decision: 1. The respondent is reprimanded; (2) The respondent's registration is suspended for 3 months from today; (3) After the expiry of the suspension the Respondent's registration is to be subject to the following conditions: (a) The conditions on his registration as at 17 December 2014; (b) he must attend meetings of Narcotics Anonymous at least monthly and authorise the Council to confirm the fact of attendance with Narcotics Anonymous; and (c) he must attend group therapy relating to addiction weekly and authorise the Council to confirm the fact of attendance with the group therapy provider; (4) This Tribunal recommends to the Respondent that during the period of the suspension he comply with the conditions imposed by the decision in the proceedings under section 150 of the National Law on 11 June 2013 (including thrice weekly urine drug testing in strict accordance with the Council's protocol). (5) The Respondent must pay the Applicant's costs of or incidental to these proceedings as agreed or assessed; Catchwords: Capacity of Medical practitioner- impairment - mood disorder and drug addiction, both in remission- not currently detrimentally affecting, or likely to detrimentally affect, capacity to practice. Suspension followed by conditions on registration. Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a ("the National Law"); Cases Cited: Health Care Complaints Commission –v- Litchfield [1997] 41 NSWLR 630; Prakash –v- Health Care Complaints Commission [2006] NSWCA 153; Lee –v- Health Care Complaints Commission [2012] NSWCA 80; Gayed v Walton [997] NSWSC 279; Health Care Complaints Commission v Howe [2010] NSWMT; NSW Bar Association v Meaks [2006] NSWCA 340; C Skinner v Beaumont (1974) 2 NSWLR 106; Law Society of NSW v Foreman (1994) 34 NSWLR 408; Seville v HCCC [2006] NSWCA 298; Re Dr Parajuli [2010] NSWMT 3; HCCC v Dr Graeme Harris [2008] NSWMT 6; HCCC v King [2013] NSWMT 9; HCCC v McHue (NSW Medical Tribunal. 14 December 2007) and Ex parte Lenehan (1948) 77CLR 403. Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Asaad Baraz (Respondent) Representation: Counsel: A Britt (Applicant) P Dwyer (Respondent) Solicitors: K Mobbs, Health Care Complaints Commission (Applicant) Dibbs Barker (Respondent) File Number(s): 1420186 Publication restriction: Broadcasting or publication of the name, address or other identifying details of any patient of the Respondent is prohibited. Judgment INTRODUCTION 1. These proceedings are an inquiry initiated by a Complaint document filed by the Applicant that contains five Complaints in respect of the professional conduct of the Respondent, a medical practitioner. 2. On 17 December 2014 the Applicant withdrew Complaint No. 5. 3. Complaints 1, 2 and 3 and the supporting particulars are as follows: Dr Asaad Baraz ("the practitioner") of 7 Railway Parade, Lithgow, NSW, 2790 being a medical practitioner under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and (I) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates 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; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND FOR COMPLAINT ONE On 23 April 2012, the practitioner agreed to the following conditions, amongst others, being placed on his registration at the recommendation of an Impaired Registrants Panel Inquiry held under section 173 of the National Law on 29 February 2012. Public Practice Condition 1: "Not to hold authority to possess, prescribe, dispense or administer any drug of addiction (Schedule 8 drugs) and not to possess, prescribe, supply, dispense or administer any drug of addiction (Schedule 8 drugs)." Health Condition 7: "Not to self administer any (a) Schedule 4D of 8 drug, (b) any narcotic derivative, non-prescription compound analgesic or cold medication. Such medications must only be prescribed and taken at the direction of his treating practitioner." Health Condition 8: "That should he be prescribed or directed to take a (a) Schedule 4D drug, (b) narcotic derivative, (c) non-prescription compound analgesic or cold medication, he must agree to notify the Council Appointed Psychiatrist and the Council. In addition within seven days he must provide the Council with written confirmation of such treatment from the treating practitioner." The practitioner informed the Council that he would not be working during the period 22 March 2013 until 7 April 2013 as he' was scheduled for liposuction surgery on 22 March 2013. The Council noted that he would be unable to undergo Urine Drug Testing during this period. PARTICULARS FOR COMPLAINT ONE 1. On 11 March 2013 the practitioner: (a) requested the following prescriptions from his supervisee, Medical Practitioner A: (i) Pethidine Hydrochloride injections (100 mg x 2ml x 5 ampoules); (ii) Endone (5 mg, 20 tablets); and (iii) Panadeine Forte (500mg/30mg, 20 tablets); and (b) made a false statement to Medical Practitioner A in that he said that the medications referred to in (a) above were required for pain management post liposuction surgery whereas they were sought for a non-therapeutic purpose. 2. On 20 March 2013 the practitioner: (a) requested the following prescriptions from Medical Practitioner A: (i) Pethidine Hydrochloride injections (100mg x 2ml x 5 ampoules); (ii) Endone (5 mg, 20 tablets); and (iii) Panadeine Forte (500mg/30mg, 20 tablets); and (b) made a false statement to Medical Practitioner A when he stated that he had not received the medications from the pharmacy for the prescriptions that Medical Practitioner A issued on 11 March 2013, when he already had those medications in his possession. COMPLAINT TWO Is guilty of unsatisfactory professional conduct pursuant to s139B(1)(b) of the National Law in that the practitioner contravened conditions on his registration. BACKGROUND FOR COMPLAINT TWO The background for Complaint One is repeated. PARTICULARS FOR COMPLAINT TWO 1. On 13 March 2013 the practitioner possessed the following medications in contravention of Public Practice Condition 1, dispensed to him at Pharmacy Direct Silverwater: (a) Pethidine Hydrochloride injections (100 mg x 2ml x 5 ampoules); and (b) Endone (5 mg, 20 tablets). 2. On 21 March 2013 the practitioner possessed the following medications in contravention of Public Practice Condition 1, dispensed to him at Pharmacy Direct Silverwater: (a) Pethidine Hydrochloride injections (100 mg x 2ml x 5 ampoules); and (b) Endone (5 mg, 20 tablets). 3. Between approximately 23 and 24 March 2013, the practitioner, in contravention of Health Condition 7: (a) self-administered the following medications: (i) Pethidine Hydrochloride injections (100 mg x 2ml x 10 ampoules); (ii) Endone (5 mg, 40 tablets); (iii) Panadeine Forte (20 tablets); and (b) did not self-administer the medications listed in (a) above, in accordance with the direction of his treating practitioner. 4. The practitioner failed to provide the Council with written confirmation from the treating practitioner within seven days of 11 March 2013 that he was prescribed the following medications, in contravention of Health Condition 8: (a) Pethidine Hydrochloride injections (100 mg x 2ml x 5 ampoules); and (b) Endone (5 mg, 20 tablets); and (c) Panadeine Forte (500mg/30mg, 20 tablets). 5. The practitioner failed to provide the Council with written confirmation from the treating practitioner within seven days of 20 March 2013 that he was prescribed the following medications, in contravention of Health Condition 8: (a) Pethidine Hydrochloride injections (100 mg x2mlx 5 ampoules); and (b) Endone (5 mg, 20 tablets); and (d) Panadeine Forte (500mg/30mg, 20 tablets). COMPLAINT THREE is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration BACKGROUND FOR COMPLAINT THREE The background for Complaint One is repeated. PARTICULARS FOR COMPLAINT THREE 1. Complaints One and Two· and the particulars thereof are repeated and relied upon both individually and cumulatively. 1. The Respondent on day 1 of the hearing admitted Complaints 1, 2 and 3 and admitted that each of them amounted to unsatisfactory professional conduct. The Applicant submitted that the conduct in Complaint 3 was of a serious nature and occurred on more than one occasion and supported a finding of professional misconduct. The Respondent did not agree that it amounted to professional misconduct. 2. Complaint 4 and the Particulars provided are as follows: COMPLAINT FOUR 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 TO COMPLAINT FOUR The background for Complaint One is repeated. In February 2003 the practitioner notified the Council that he had been self-administering Pethidine monthly over the previous three years. In April 2003 he entered the Council's Health Program and a number of health and practice conditions were imposed on his registration. The practitioner exited the Health Program in November 2007. The practitioner re-entered the Council's Health Program in February 2012. PARTICULARS OF COMPLAINT FOUR 1. The practitioner suffers from Pethidine dependence and/or abuse. 2. The practitioner suffers from depression. 3. The particulars of Complaints One and Two are repeated and relied upon. 1. Complaint 4 is not admitted by the Respondent. In his counsel's written submissions of 15 December 2014 the defence is articulated: "Although the Respondent admits that he has a condition or disorder (mood disorder and Pethidine dependence) he is currently in remission. In that case, the disorder does not 'detrimentally affect' and is not 'likely to detrimentally affect' his 'capacity to practice medicine' ". The Respondent admits the background in the Complaints, admits mood disorder and Pethidine dependence, but asserts he is now "competent" in accordance with the meaning of that expression under s.139 of the Health Practitioner Regulation National Law (NSW) ("the National Law"). THE EVIDENCE 1. The evidence comprised: 1. Complaint 2. (a) Certificate of Registration from AHPRA (to be provided at hearing) (b) Certificate of Registration from Medical Council of N8W (to be provided at hearing) 3. Letter to the HCCC from the MCNSW dated 20 June 2013 4. Reasons for Decision for the S150 Proceedings dated 5 August 2013 attaching: (a) Chronology prepared for the s150 Proceedings (see at page 25) 5. Transcript of the 8150 Proceedings held on 11 June 2013 6.Statement of Dr Narges Zolfaghari dated 23 September 2013 attaching: (a) Copy of prescriptions dated 11 March 2013 (see at page 3); (b) Copy of Progress Notes for Dr Baraz dated 11 March 2013 (see at page 6); (c) Copy of prescriptions dated 20 March 2013 (see at page 7); (d) Copy of Progress Notes for Dr Baraz dated 20 March 2013 (see at page 10); (e) letter from Dr Zolfaghari concerning Dr Baraz dated 17 April 2013 (see at page 11) 7. Emails from Dr Baraz to the MCNSW dated 18 April 2013 attaching photographs of prescriptions 8. Letter to the MCNSW from Dr Zolfaghari dated 17 April 2013 9. Email from Dr Baraz to MCNSW dated 17 April 2013 10. Email chain between Dr Baraz, MCNSW and Dr Kanagaratnam dated 10,11 and 14 April 2013 11. File note prepared by Ms Amanda Phelps, MCNSW dated 4 April 2013 12. File note prepared by Ms Lisa Manning, MCNSW dated 4 April 2013 13. Medical certificate for Dr Baraz from Dr Siva Kanagaratnam dated 19 March 2013 14. Notification from PSU to the MCNSW dated 2 May 2013 15. PSU report (with appendices) dated 2 May 2013 16. Copy of the contemporaneous notes made by Senior Pharmaceutical Officer, Aleksander Gavrilovic, during his interview with Dr Baraz on 23 April 2013 17.Patient medical records for Dr Baraz from Dr Kanagaratnam dated 30 September under cover of letter from the HCCC dated 20 September 2013 18.Patient medical records for Dr Baraz from Dr Glen Smith, Northside West Clinic undercover of letter from the HCCC dated 23 September 2013 19 Patient medical records for Dr Baraz from Mindways Psychological Services dated 25 September 2013 20 Patient medical records for Dr Baraz from Suzanne Alder, Psychologist dated 11 November 2013 21 Patient medical records for Dr Baraz from Dr Richa Rastogi 22. Health Program Participant's Handbook 23. Good Medical Practice: A Code of Conduct for Doctors in Australia 24. Urine Drug Testing (4DT)Protocol 25 S281etter to Dr Baraz from the HCCC dated 13 August 2013 26 Letter from Dibbs Barker dated 27 August 2013 27 Personal resume of Dr Baraz 28 Email to the HCCC from Dr Baraz dated 11 September 2013 29 S40 letter to Dr Baraz from the HCCC dated 15 October 2013 30 S40 response to the HCCC from Dr Baraz dated 6 November 2013 31 Self notification dated 26 February 2003 32 Withdrawal of drug authority dated 6 March 2003 33 Impaired Registrants Panel Inquiry report dated 29 April 2003 34 Review Interview Report dated 18 November 2003 35 Letter notifying of partial restoration of drug authority dated 4 February 2004 36 Review interview Report dated 28 May 2004 37 Letter notifying of partial restoration of drug authority dated 21 July 2004 38 Review interview Report dated 17 December 2004 39. Review Interview Report dated 2 December 2005 40. Letter notifying of partial restoration of drug authority dated 2 March 2006 41. Review Interview Report dated 10 November 2006 42. Letter notifying of partial restoration of drug authority dated 12 February 2007 43. Review Interview Report dated·18 May 2007 44. Exit Interview Report dated 6 November 2007 45. Notification (mandatory) from Dr Kanagaratnam dated 6 December 2011 46. Notification from Pharmaceutical Services Unit dated 8 December 2011 attaching: (a) Report from Mr Robert Hillman, Blooms The Chemist dated 9 November 2011 (see at page 3); (b) Poisons and Therapeutics Good Regulation 2008 Request for Order dated 11 November 2011 (see at page 4); (c) Investigation report dated 21 November 2011 (see at page 5); (d) Letter to Dr Baraz from the PSU dated 8 December 2011 (see at page 13) 47. Notification from Nepean Blue Mountains Local Health District dated 23 December 2011 48.Report of Dr Morse dated 14 February 2012 49.Impaired Registrant's Panel Inquiry decision dated 29 February 2012 50.Report of Dr Morse dated 29 May 2012 51.Review Interview Report dated 1 June 2012 52.Review Interview Report dated 19 November 2012 53.Report of Dr Andrew Pethebridge dated 4 February 2013 54.Report of Dr Andrew Pethebridge dated 18 April 2013 55. Review interview Report dated 7 May 2013 56. Report of Dr Rastogi dated 3 June 2013 57. Report of Dr Andrew Pethebridge dated 9 June 2013 58. Report of Dr Andrew Pethebridge dated 11 September 2013 59. Review Interview Report dated 13 September 2013 60. Report of Dr Andrew Pethebridge dated 7 January 2014 61. Review Interview Report dated 7 February 2014 62. Report of Dr Andrew Pethebridge dated 15 April 2014 63. Review lnterview Report dated 30 May 2014 64. Report of Dr Andrew Pethebridge dated 9 August 2014 65. Compliance History 66.Statement of Dr Asaad Baraz dated 31 October 2014 67. Letter from Dibbs Barker to Mr Jackson Walsh dated 30 June 2014 68. Report of Mr Jackson Walsh, addiction counsellor, dated 22 May 2014 69. Further report of Mr Walsh dated 6September 2014 70. Letter from DibbsBarker to Dr Glen Smith dated 21 July 2014 71. Report of Dr Smith, drug and addiction psychiatrist, dated 7August 2014 72. Curriculum vitae of Dr Smith 73. Letter from Dibbs Barker to Dr Richa Rastogi dated 21 July 2014 74. Report of Dr Rastogi, psychiatrist for depression, dated 25 August 2014 75. Curriculum vitae of Dr Rastogi 76. Letter from Dibbs Barker to Dr Sivakumar Kanagaratnam dated 21 July 2014 77. Report of Dr Kanagaratnam, general practitioner, dated 9 October 2014 78. Curriculum vitae of Dr Kimagaratnam 79. Letter from Dibbs Barker to Dr Ruth McCracken dated 21 July 2014 80. Undated report by Dr McCracken, general practitioner 81. Letter by Mr Len Ashworth dated 28 August 2014 82. Letter by Mr David Scott dated 16 September 2014 83. Letter by Mr Grahame Danaher dated 29 September 2014 84. Letter from DibbsBarker to Dr Narges Zolfaghari dated 30 October 2014 85. Letter by Dr Zolfaghari, general practitioner, dated 2 November 2014 86. Letter from Dibbs Barker to Dr Mukta Golder dated 27 October 2014 87. Letter by Dr Golder, general practitioner, dated 4 November 2014 88. Letter of request to Dr Andrew Pethebridge dated 1 December 2014 89. Expert Report from Dr Andrew Pethebridge dated 3 December 2014 90. Curriculum Vitae of Dr Andrew Pethebridge 91. Review Interview Report dated 15 August 2014. 92. Compliance History as at 1 December 2014 93. Health Records from Northside West Clinic (13 May 2013 to present) 94. Letter from Dr Therese Underwood to Dr Siva Kanagaratnam dated 19 February 2014. 95.Oral evidence and cross-examination of Dr Andrew Pethebridge 96 Oral evidence and cross- examination of the Respondent 97 Oral evidence and cross-examination of Dr Glen Smith (Drug and Addiction Psychiatrist) 98 Oral evidence and cross-examination of Dr Siva Kanagaratnam (Consultant Psychiatrist) 99 Oral evidence and cross-examination of Dr Ruth Janette McCracken, general practitioner 100 Oral evidence and cross-examination of Dr Narges Zolfaghari, general practitioner 101 Oral evidence and cross-examination of Dr Mukta Golder, general practitioner. BACKGROUND 1. The Respondent was born on 20 November 1969 in Iraq and is now 45 years of age. At the start of 1992 he had a brief period of abusing drugs, especially Morphine and Droperidol. Then while a medical student in Iraq he came into possession of a quantity of morphine and Pethidine when a neighbour for whom the drugs had been prescribed died and the drugs were given to the Respondent. He self administered those drugs. He studied in Iraq where in 1993 he completed the Degrees of Bachelor of Medicine and Bachelor or Surgery. 2. After he completed internship, he worked as a Registrar in Iraq and then as a Resident Medical Officer in Jordan before coming to Australia and taking up a position as a Registrar at Frankston Hospital in Melbourne. In Iraq he accessed Pethidine in the hospital without authorisation. From 1994 he was seeking out Pethidine. In Jordan he had no access to Pethidine as the supplies were in locked storage. He was registered in Victoria from July 1988 to February 2000. At Frankston Hospital, as a hospital doctor he could not get pethidine for a "doctor's bag" so he later managed to secure a prescription book and wrote prescriptions for Pethidine. When he had it dispensed he self administered it. 3. In January 2000 he moved to Lithgow in NSW and he thereafter worked as a general practitioner. He also worked as a Visiting Medical officer at Lithgow District Hospital, Lithgow Community Private Hospital, and nursing homes in the Lithgow area. He became a Fellow of the Royal Australian College of General Practitioners. 4. He self-notified the Medical Council in February 2003 that he had been self-administering Pethidine for three years. From April 2003 he was on the Medical Council Health Program and from the March the Council prohibited him possessing or supplying or prescribing Schedule 8 drugs in NSW after an interview with the Pharmaceutical Services Branch. His admission to the Medical Council Health Program was after assessment by a Board appointed Psychiatrist. Conditions were also imposed on his registration by consent, including a requirement for him to attend for treatment by a psychiatrist and undergo thrice weekly urine drug testing ("UDT"). 5. Whilst in the Health Program his urine tested positive for Morphine on two occasions, which was attributed to the consumption of bread containing poppy seeds. 6. The conditions on his registration were gradually eased over a number of years. He exited the Health Program in November 2007. It appears he was abstinent from Pethidine till about March 2009 but then resumed self-administering Pethidine and also occasionally Methadone. His relapse went undetected for about 2 years and 8 months. 7. But in November 2011 the Pharmaceutical Services Branch received information from a pharmacist in the Lithgow area that the Respondent had been issuing prescriptions for Pethidine in the names of family members and collecting them himself. He was interviewed by the Pharmaceutical Services and surrendered his right to possess, supply or prescribe Schedule 8 drugs on 11 November 2011. 8. Shortly after that the Nepean Hospital and a colleague both made separate mandatory notifications that the Respondent was possibly impaired. 9. In a report dated 21 November 2011, the Pharmaceutical Services investigation reported that he had admitted self-administration of Pethidine and he had issued prescriptions for 240 ampoules of 100mg Pethidine between March 2009 and November 2011. 10. The Respondent was then assessed by a Council appointed psychiatrist and an Impaired Registrants Panel Inquiry ("IRP") was convened on 29 February 2012. The IRP noted that, following his exit from the Health Program in November 2007 the Respondent had remained abstinent from Pethidine for 16 months before resuming self-administration of Pethidine in March 2009. This apparent relapse went undetected for 2 years and 8 months. Despite his assertion at the exit interview in November 2007 that he would self-notify if he relapsed, he had failed to do so. 11. The Respondent admitted to the IRP that he occasionally self-administered Morphine but said that Pethidine was his drug of choice. The relapse occurred, he said, in the context of a major depressive episode at a time when he was overworked and because he had "nothing better to do". He was of the view that: "the only way for him to avoid another relapse would be for ongoing indefinite urine drug screening testing and a complete restriction on his Schedule 8 prescribing authority." 1. The IRP recommended that he be enrolled with the Health Program with additional restrictions including thrice weekly urinalysis. 2. This was implemented and his registration was also subject to conditions as follows: Public Practice conditions 1. Not to hold authority to possess, prescribe, supply, dispense or administer any drug of addiction (Schedule 8 drugs) and not to possess, prescribe, supply, dispense or administer any drug of addiction.(Schedule 8 drugs). 2. To obtain Council approval prior to changing the nature or place of practice. 3. To authorise the Council to notify his employer/s of any issues arising in relation to compliance with any of his conditions. Private Health conditions 1. Not to prescribe for self-medication. 2. To attend for treatment by a general practitioner of his choice, at a frequency to be determined by the practitioner and the treating practitioner. To authorise his 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). 3. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise his 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). 4. To attend for treatment by a Drug and Alcohol Counsellor of his 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). 5. To take any medication prescribed by his treating practitioners. 6. That the extent of his professional medical duties is to be guided by his health status and the advice of his treating & Council Appointed Practitioners. 7. Not to self-administer: (a) any Schedule 4D or 8 Drug. (b) any narcotic derivative, non-prescription compound analgesic or cold medication. Such medications must only be prescribed and taken at the direction of his treating practitioner. . 8. That should he be prescribed or directed to take a (a) Schedule 4D Drug, (b) narcotic derivative, (c) non-prescription compound analgesic or cold medication, he must agree to notify the Council Appointed Psychiatrist and the Council In addition within seven days he must provide the Council with written confirmation of such treatment from the treating practitioner. 9. To attend for thrice weekly Urine Drug Testing in strict accordance with the Council's protocol. Results of Urine Drug Testing to be forwarded to the Council Appointed and treating practitioners and to the Council. He understands that such Urine Drug Testing will be at his expense. 10. To attend for review by the Council Appointed Psychiatrist all a six monthly basis or as otherwise directed by the Council, at the Council's expense. 11. To attend a Review Interview at the Council in six months or as otherwise directed by the Council. . 12. To authorise the Council to forward copies of the Impaired Registrants Panel report, subsequent Council Review Interview reports and other information relevant to his impairment to the Council Appointed Practitioners and his treating practitioners. 13. To authorise a nominated senior medical practitioner at the principal location where he works to notify the Council immediately if there are any concerns in relation to his health or clinical performance. The nominated senior medical practitioner is subject to approval by the Council. After he re-entered the program he was mentally and physically stable and compliant with his conditions. His urinalysis results were consistently negative. 1. He notified the Council that he would be taking time off work from 22 March 2013 to 7 April 2013 for a plastic surgery operation. He provided a medical certificate and the Council noted that he would be unable to undergo UDT in this period. 2. The surgery was liposuction at a private hospital. On two occasions in March 2013 the Respondent persuaded Dr Zolfaghi, a general practitioner whom he supervised in his practice, to prescribe him Pethidine (5 injections), Endone and Panadeine Forte which he said was for relief of pain he anticipated following the proposed surgery. On both occasions he self-administered the drugs for non-medical purposes. In his Affidavit he testified that: "During this time I also attempted to hide my actions from my wife by substituting Tramadol vials for Pethidine in the packaging for the Pethidine prescribed by Dr Zolfaghi. I then flushed the Tramadol, which my wife thought was the Pethidine, down the sink in front of her." 1. He underwent the liposuction on 22 March 2013. The Pharmaceutical Services Branch discovered that the two sets of prescriptions for him for the same three drugs had been presented within a short period of time and investigated. 2. On 17 April 2013 in an email to the Medical Council among other things the Respondent: 1. made excuses for his delay in notifying the Medical Council he had been prescribed with those drugs, which he was required to do under the conditions of his registration: 2. falsely reported that he had not used or abused any of the medications prescribed; and, 3. falsely reported that he had disposed of the remaining unused medication in front of his wife. 1. On 23 April 2013 the Respondent admitted to an Officer of the Pharmaceutical Services Branch the truth of what had happened. 2. The Council conducted a Review Interview in relation to the Respondent's breach of the conditions of his registration by using Pethidine. 3. The Respondent was admitted as a voluntary inpatient to the Drug & Alcohol Unit at Northside West Clinic on 13 May 2013. He remained there until 24 May 2013. While there he was under the care of Dr Rastogi, a psychiatrist. He saw Dr Rastogi daily from Monday to Friday about his chronic depression. He also had consultations with a psychiatrist who specialises in drug and Alcohol addictions, he underwent individual drug and alcohol counselling with Mr Jackson Walsh, and he engaged in drug and alcohol group therapy sessions on a regular basis. He also continued to undergo UDT three times per week. 4. On 11 June 2013 proceedings under s.150 of the National Law were conducted by a Panel appointed by the Medical Council and the decision of the delegates of the Medical Council, which took effect from that date, was to impose the following conditions on the Respondent's registration: Practice Conditions: 1. Not to hold authority to possess, prescribe, supply, dispense or administer any drug of addiction (Schedule 8 drugs) and not to possess, prescribe, supply, dispense or administer any drug of addiction (Schedule 8 drugs). 2. To obtain Council approval prior to changing the nature or place of his practice. 3. To authorise the Council to notify his employer/s of any issues arising in relation to compliance with any of his conditions. 4. To authorise and consent to any exchange of information between the Council and Medicare Australia for the purpose of monitoring compliance with these conditions. Health Conditions: 1. Not to, prescribe for self-medication. 2. To attend for treatment by a general practitioner of his choice, at a frequency to be determined by the practitioner and the treating practitioner. To authorise his treating general 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). 3. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise his 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). 4. To attend for treatment by a drug and alcohol specialist, at a frequency to be determined by the treating drug and alcohol specialist. To authorise his treating drug and alcohol specialist 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). 5. To attend for treatment by a drug and alcohol counsellor of his choice, who is not also his treating marriage counsellor, at a frequency to be determined by the treating drug and alcohol counsellor. To authorise the treating drug and alcohol counsellor 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). 6. To take any medication prescribed by his treating practitioners. 7. That the extent of his professional medical duties is to be guided by his health status and the advice of his treating & Council Appointed Practitioners. 8. To authorise the Council to provide a copy of these conditions to all medical practitioners with whom he works at his place of practice, as well as all medical practitioners whom he supervises (onsite or remotely). 9. To authorise the Council to notify all medical practitioners with whom he works at his place of practice, as well as all medical practitioners whom he supervises (on site or remotely), that' the reason for the imposition of conditions on his registration is because he is impaired by his Pethidine addiction. 10. Not to self-administer: (a) any Schedule 4D or 8 Drug. (b) any narcotic derivative, non-prescription compound analgesic or cold medication. Such medications must only be prescribed and taken at the direction of his treating practitioner. 11. That should he be prescribed or directed to take a: (a) Schedule 4D Drug, (b) narcotic derivative, (c) non-prescription compound analgesic or cold medication, he must agree to notify the Council Appointed Psychiatrist and the Council. In addition within seven days he must provide the Council with written confirmation of such treatment from the treating practitioner. 12. To attend for thrice weekly Urine Drug Testing in strict accordance with the Council's protocol. Results of Urine Drug Testing to be forwarded to the Council Appointed and treating practitioners and to the Council. He understands that such Urine Drug Testing win be at his expense. 13. To attend for review by the Council Appointed Psychiatrist on a three monthly basis or as otherwise directed by the Council, at the Council's expense. 14. To attend a Review Interview at the Council in three months or as otherwise directed by the Council. 15. To authorise the Council to forward copies of the Section 150 decision, subsequent Council Review Interview reports and other information relevant to his impairment to the Council Appointed Practitioners and his treating practitioners. 16. To authorise a nominated senior medical practitioner at the principal location where he works to notify the Council immediately if there are any concerns in relation to his health or clinical performance. The nominated senior medical practitioner is subject to approval by the Council. 1. The Delegates also made the following recommendations: 1. that Dr Baraz continues to attend Narcotics Anonymous meetings on a weekly basis; 2. that Dr Baraz relinquishes his firearms and licence and accordingly, notifies the Medical Council that he has done so; 3. that no Schedule 8 drugs be stored at Dr Baraz's practice premises; and 4. that the Council give consideration to providing a copy of these written reasons to the Australian Health Practitioner Regulation Agency for consideration in light of Dr Baraz's current supervision of junior medical practitioners. 1. The Delegates who heard the s.150 proceedings also referred the matter to the Health Care Complaints Commission pursuant to s.150F and expressed the view that the matter should be dealt with as a complaint for investigation. EVIDENCE OF DR PETHEBRIDGE 1. Dr Pethebridge qualified as a medical practitioner in 1986 and became a Fellow of the Royal Australian and New Zealand College of Psychiatrists in 2003. 2. He has practised as a psychiatrist since 2002. Since 2006 he has been the Senior Staff Specialist Psychiatrist at St George Hospital in Sydney. 3. Dr Pethebridge's curriculum vitae is in evidence and he has considerable experience teaching and lecturing in Psychiatry. His curriculum vitae does not indicate that he has worked in a drug & alcohol unit, but it does indicate that he was the RACP representative for the development of Revised NSW Clinical Guidelines for the care of persons with comorbid mental illness and substance use disorders in 2008-2009, and for the same period he was also invited to advise on the up-dating of the protocols of the medically supervised injecting centre, part of Wesley Health. 4. Dr Pethebridge was asked by the Medical Council to review the Respondent as part of his on-going involvement in the Council's health program. He did that on 25 October 2012 in the outpatients' area of the Mental Health Unit at St George Hospital. He had no prior relationship with the Respondent. 5. Dr Pethebridge in his report of 4 February 2013 to the Medical Council said that he believed the Respondent: "Probably experienced a period of major depression in his final years as a medical student. Further episodes of depression occurred when he was based in Frankston and he failed his AMC Part 1 exam. There was a further episode in August 2010 when he was based in Lithgow. As a consequence of this episode he ceased nursing home visits. He has had a single panic attack and he has not experienced medical or hypomanic periods. Of these episodes of depression they appear to be clearly linked to events in his life …" 1. Dr Pethebridge concluded: "Substance dependence is a chronic relapsing illness and in 2011 Dr Asaad Baraz experienced a relapse in his dependence on Pethidine that was sufficient for him to be considered as impaired. This relapse was in the context of work and personal pressures contributing to a relapse of depression. It is appropriate that Asaad be involved in the Council's Health Program and at the present time the conditions on his registration are also appropriate. I look forward to reviewing him further in a further three months." 1. The review occurred on 28 February 2013. The Respondent told Dr Pethebridge that with the arrival of a fourth doctor in the practice, he had found himself less busy and he was enjoying that. He was seeing about 30-35 patients on a typical day. He said the practice was running well and offering him a degree of financial security. He said he had started to think about taking break from clinical medicine. He said that he had "lost his passion for medicine". 2. The Respondent told Dr Pethebridge that he started to think about using Pethidine. Dr Pethebridge reported: "Asaad described becoming dysphoric and fears that he may use Pethidine in the context of waking up one day and deciding I don't care'." Dr Pethebridge said that the Respondent disclosed that the only thing that had prevented him using was the UDS monitoring and the consequences of a positive result. He told Dr Pethebridge that he had worked out that he could access Pethidine through a number a medical friends whom he would be able to approach Pethidine scrips, which he would have dispensed outside of Lithgow. 3. Dr Pethebridge concluded his report stating: "Dr Baraz is to be supported for his openness in our interview and that he is sufficiently reflective that he can perceive the implications of further substance use while involved in the Health Programme. He is, however, at high risk of relapsing and his thoughts of using have structured around a realistic route of access to Pethidine. I am also concerned that Dr Baraz may be experiencing a relapse of his depressive illness with cognitions that are negative and hopeless. I have suggested to Dr Baraz that he needs to discuss more intimately with his treating Psychiatrist his mood. At present I would not support any change to the conditions presenting on his registration. 1. The next report of Dr Pethebridge is of 9 June 2013 after he had been informed that the Respondent had obtained prescriptions from Dr Zolfaghari and that he had been admitted as an inpatient to the Northside West Hospital. He noted that the Respondent had acknowledged that he had obtained and used Pethidine and Codeine during the period when he was aware that he was not be monitored with UDS. He said: "It is likely that he was using Codeine containing analgesics up to about 8 April. Use of either of these substances would make a doctor impaired in a clinical situation." 2. Dr Pethebridge noted that the samples of 8 and 10 April were consistent with the use of Codeine and a Benzodiazepine. He said the use of Benzodiazepines in a doctor not tolerant to them would make the doctor impaired. He said: "Depression can also be an impairing illness". He concluded in his report: "Before Dr Baraz returns to his usual clinical responsibilities I would suggest that he needs to be treated by an addiction specialist, either a psychiatrist or a physician. This doctor make like to give some consideration to a period of active treatment for opioid dependence so that the recent brief relapse by Dr Baraz does not extend further. I would also suggest a period of inpatient rehabilitation and would strongly encourage Dr Baraz to make some contact with the Doctors in Recovery Group." 1. Dr Pethebridge carried out a further review of the Respondent on 22 August 2013. In the period since that interview the Respondent's professional indemnity insurer had declined to renew his insurance. He was without cover for two weeks. He assured Dr Pethebridge that he did not work during that period. He told Dr Pethebridge that without work and staying at home he felt that he was depressed. He negotiated the insurance with another insurer. 2. Dr Pethebridge reported: "At our present interview Asaad has experienced what could only be described as a flight into health. He is completing all of the required conditions on his registration and he spoke of his health and practitioner relationships in strongly positive terms. He told me of his involvement in the Northside West Thursday day group and Tuesday evening NA meetings. Through Northside he has come under the care of Dr Glen Smith, an addiction psychiatrist. Apparently the two of them have discussed the use of Suboxone (an opioid replacement therapy …) and they have decided that this is not as yet indicated. During his two weeks of inpatient care Asaad benefited from the Hospital's education program, discussion of relapsed prevent and learning to deal with his emotions. Asaad similarly discussed the benefits of the ongoing Relapse Prevention Group but here I found his 'discussion' little more than a superficial repeating of topics discussed in the group without any personal reflection. On a positive note he does have an NA sponsor and they have some phone contact at meetings and he has stopped smoking." 1. Dr Pethebridge noted that the Respondent described his work situation positively and said that all three of his fellow doctors in his practice now knew of his addition or his involvement in the Health Program. He said he had apologised to the doctor he asked to prescribe analgesics for him and relationships in the practice were back to normal. 2. Dr Pethebridge noted that the Respondent was in agreement with the conditions on his registration and complying. 3. Dr Pethebridge concluded: "This has been a difficult six months for Asaad. After his brief relapse he has made an early recovery and it is pleasing that he has taken on board the conditions on his registration, even if this response is still superficial. His response to the recommendations made by the Council has been less enthusiastic, particularly giving up his firearms. With respect to the positive urine result on 31 July is difficult to identify the cause of this result and it is unfortunate that it was positive for the class of substances that Asaad has abused. Certainly any period of thrice weekly monitoring needs to be dated as starting from 1 August 2013 because of this positive result. I would support the continuation of all the current conditions on Dr Baraz's registration including a further review in three months' time." 1. The next review with Dr Pethebridge was on 29 November. When Dr Pethebridge wrote his report to the Medical Council on 7 January 2014 he had 55 UDS results all of which were negative. There were limited results for October because the Respondent and his wife had been travelling in New Zealand from 4-11 October. 2. Dr Pethebridge reported: "Asaad has consolidated his recovery over recent months. He has structured his working week so that he is able to attend two NA meetings weekly on Monday and Tuesday evenings, and Northside West Outpatient Programme on Thursdays. He has assured me that he has medical defence insurance cover and that he is up-to-date with his CPD requirements." 1. It was noted that the Respondent has changed his work arrangements in that he did not work on Thursdays so that he could attend group therapy sessions. He said that the Respondent's report was that he was seeing about 28 patients a day and on a busy day 30-35. He was not working on weekends. 2. The Respondent also reported that his relationship with his wife had improved after some family therapy sessions, and they were making an effort to spend more time together. His wife had been encouraged to consider that they have to fight his addiction together. 3. Dr Pethebridge discussed with the Respondent each of the conditions of his registration and the Respondent reported that he was complying with all of them. 4. Dr Pethebridge concluded: "Over the last three months there appears to have been a consolidation of Dr Baraz's recovery. Unfortunately there appears to have been a miscommunication with Dr Smith which I understand has resulted in Dr Baraz being notified to the Council. This communication aside, Dr Baraz does appear to be taking his recovery from Pethidine seriously and this may in part be an acknowledgment of the seriousness of the involvement of the HCCC. He appears to be less concerned to be abstinent from other substances such as alcohol, though I do not believe that alcohol has been associated with Dr Baraz being impaired in his clinical work. I would support the continuation of all of the current conditions on Dr Baraz's registration including a further review in three months' time. If he has continued to be stable in his recovery over the next three months I would then be happy to support a move to six monthly reviews." 1. The next review was completed on 11 April 2014. Dr Pethebridge had 45 urine test results for the period December to March of which 44 were clear and one result was positive for a morphine trace, but was reported that it "may not be a heroin metabolite". Dr Pethebridge expressed the opinion that the positive samples of 31 July 2013 and 12 March 2014 were collected on Wednesdays and that: "given the negative results on the Monday preceding the positive results, the weekend use of opiate analgesics is highly unlikely." 2. Dr Pethebridge said that what the Respondent wanted to tell him about was: "the change in his understanding of addiction and his understanding of the 12 Steps". He concluded that this enthusiasm for recovery was brought about by the Respondent's attendance at a recent Doctor's in Recovery National Meeting in Sydney which built on his experience and knowledge gained during his earlier in-patient rehabilitation. He reported that the Respondent was working through the steps and was currently working on Step 9 (direct amends to such people where ever possible except when to do so would injure them or others). As part of this, he said, the Respondent told him: "I accept blame for everything in my marriage". Dr Pethebridge said that was: "a significant cognitive change from when he has previously blamed his wife as a cause for his emotional isolation, depression and need to use substances". He said: "Asaad has accepted that he has created a cycle of broken promises and betrayed trust. He also spoke how on multiple occasions, during his recent period of Pethidine use, that he had promised himself to never use again and then quickly breaking his promise. Trapped in this cycle of using, Asaad recalled to me the relief he experienced when he was contacted by Pharmaceutical Services and he knew that he would be forced to stop his use." 1. Dr Pethebridge said that the Respondent had become aware that his addiction to Pethidine was a response to the underlying problem and that he was also thinking about the possibility of relapse and how to prevent it. The Respondent also told him that he had reflected on some of his past behaviours and he offered Dr Pethebridge two examples of the cognitive games that he had previously played with himself. 2. Dr Pethebridge found that the Respondent was then: "accepting that he can learn from his peers in the Doctors in Recovery Group but it was finding attendance problematic because of the location and timing of the meetings." He was continuing to attend the NA group on Thursday evenings and the outpatient Group Therapy Day on Thursdays. He was meditating regularly and "for the first time in his life he is keeping a journal and finding this helpful". 3. Again Dr Pethebridge reviewed with the Respondent conditions on his registration and the Respondent reported that he was complying with each of them. 4. In his conclusion Dr Pethebridge said that: "Over the last three months Dr Baraz appears to have consolidated his recovery. "There is, however, the question of the positive urine sample from March which continues to be unexplained. I am also concerned that his affect during the interview may be an early warning of a relapse of his depressive illness. I would, however, support the continuation of all the current conditions on Dr Baraz's registration, apart from supporting him moving to six monthly reviews by the Council." 1. The next review interview was on 21 July and Dr Pethebridge reported to the Medical Council on 9 August 2014. The move to a six monthly review recommended by Dr Pethebridge had not yet been formally approved. 2. Since the previous review the Respondent had experienced in the previous month the "dramatic" events of the doctor in his surgery being murdered by her husband and his subsequent suicide leaving their teenage children orphans. He told Dr Pethebridge that he was: "a mess" and "emotional" for three days and described his symptoms, saying that they were quite different to those he experienced when he was depressed. He also reported the relationship between him and his wife as: "normality". Dr Pethebridge again reviewed with the respondent each of the conditions of his registration and the Respondent reported that he was compliant with all of them. 3. Dr Pethebridge concluded his report: "Asaad has lived through an unexpectedly difficult period. Clinically he described an Adjustment Disorder with depressed mood in the initial period after the murder of Dr Geldenhuis and Asaad reflected that he is thankful for his sobriety as this has helped him to navigate through these events. He was also well supported by professionals and friends around him. Of note Asaad ensured that he continued to attend his NA meeting during this period and he has just started to go to a weekly AA meeting. The symptoms associated with Adjustment Disorder appear to have now largely resolved. I would support the condition of all the current conditions on Dr Baraz's registration, apart from confirming that I support him moving to six monthly reviews by the Council." 1. Dr Pethebridge's last report was dated 3 December 2014. He expressed the opinion that Dr Baraz suffers from a mental impairment within the meaning of the National Law in relation to his depression and also in relation to his Pethidine addiction. He said: "I base this on the fact that both these conditions are relapsing illnesses". He said that at the time of the review in early 2013 the Respondent had experienced four acute episodes of depression while he had experienced three episodes of using Pethidine. He said that the Respondent: "is clearly impaired in his clinical practice when he is experiencing either of these conditions", and: "It is difficult to predict in advance when he is going to experience a further relapse of either of these conditions and so I believe that it is appropriate to identify Dr Baraz as impaired as at any point in time he may experience a medical condition (mood disorder or addiction) that could detrimentally affect his capacity to practice medicine." 1. He expressed the opinion that if the Respondent is experiencing a period of depression he may be less involved in the care of this patients, less likely to listen to their concerns, less cognitively attuned to the patient's symptoms, possibly likely to jump to premature diagnoses and terminate interviews quickly. 2. His opinion was that if the Respondent is using Pethidine: "he will be experiencing an on-going cycle of intoxication and withdrawal. During both phases he will be cognitively impaired and when he is withdrawing he will additionally be physically uncomfortable and possibly distracted from his patients' symptoms by his own symptoms." 1. He expressed an opinion that Dr Baraz would remain impaired as defined in the legislation for the rest of his career. But he said: "Hopefully the conditions on his registration have placed a number of supports around Dr Baraz so that if he were to become depressed, members of his treating team would identify this or that he is sufficiently insightful to identify his symptoms to a treating doctor. Either way I would envisage that he would quickly receive appropriate care." 1. Dr Pethebridge said that he had hoped that the conditions on the Respondent's registration with respect to his use of Pethidine would have acted in a similar way. But he expressed his concerns about the Respondent reporting that he had been thinking about using Pethidine but the conditions had prevented him from doing so. He also expressed concern about the matter identified in his report of 9 June that the Respondent had identified a way to obtain and use Pethidine outside of the conditions on his registration by manipulating a doctor in his practice and lying to his wife. 2. However, Dr Pethebridge said: "While actively managed through the NSW Medical Council's health programme, not experiencing a relapse of his depressive illness or Pethidine use, I have no concerns about the competence of Dr Baraz". He said that while the Respondent's use of Pethidine is in remission this did not exclude the potential of a further relapse and thus his dependence should continue to be considered as an impairing condition. "He has also built a strong recovery network around him to support his continued abstinence." 3. Dr Pethebridge expressed the opinion that since the relapse in April 2013 the Respondent needs the following supports placed for the remainder of his career ("and this may necessitate related conditions remaining in place on his medical registration for the duration of that career".): 1. The support and assistance of his treating practitioners and wider support network, together with his participation in various therapy groups and activities; 2. Compliance with the Practice and Health conditions placed on his registration and monitoring by the Medical Council of his compliance; 3. Assistance and support of his treating practitioners, colleagues, family and wider support network; and 4. Ongoing participation in group therapy and other therapeutic activities. 1. In his oral evidence Dr Pethebridge said that he had not seen the Respondent since July 2014. He conceded that if the Respondent is not using Pethidine at present and is insightful about his addiction, then the addiction does not currently affect his work. He said that there has been: "more than steady improvements; giant leaps", but he could not be sure there will be no relapse. He said that there had been times earlier when he felt the Respondent was "saying the right words but I wasn't sure he understood", and that was his reason for caution. 2. By April 2014 he was impressed that the Respondent had better prospects of recovery, because of his insight. He said: "Insight is a very good indicator or prospects". He also said he was impressed when he saw the Respondent within weeks of the murder of his colleague. He said: "He at one stage was close to tears", and Dr Pethebridge was impressed that there was no relapse of his depression or of his use of drugs. 3. Dr Pethebridge said that currently and in the last 18 months there has been nothing likely to detrimentally affect the Respondent's practise as a General Practitioner. He confirmed his support for the existing conditions of his registration. 4. In answer to questions from Panel Members he said that given the relapse, he was unlikely to recommend that the Respondent leave the Health Programme and cease urine testing. He said that the Respondent has two conditions, Major Depression and Opioid Dependence. Both of these he said are lifelong and are both likely to lead to a relapse. He said when it will happen is not predictable, except that the longer he goes without a relapse, the lower the risk. 5. He said: "I am overly cautious where treating patients". He said: "It is a lifelong risk so that you can monitor the person or manage the conditions, but you can't cure the problem". He said that continuing attendance by the Respondent at AA meetings is beneficial because it also uses the 12 Step program – the same philosophy for alcohol as with narcotics. 6. He said that the episode of the Respondent having thoughts of Pethidine and how he might access it is about addiction, but his deceit of his wife about destroying Pethidine is about his character. He said that if the Respondent continues as he is now, there is always a possibility of a relapse and impairment. THE RESPONDENT'S EXPLANATION 1. The Respondent concedes a drug addiction since 1992 with Pethidine being the drug he most used. 2. The Respondent's evidence is that from March 2009 onwards he was: "increasingly stressed and depressed". He said he had problems in his marriage and an increased workload and then "problems" that were: "compounded with the birth of my son in February 2010". He said that he became increasingly depressed after the birth of his son and the marital difficulties worsened. His general practitioner prescribed him various anti-depressant medications including Zoloft and Avanza, but: "my symptoms did not improve". He said that during this period: "I felt I could not cope and started using Pethidine again". 3. He said that when he attended an assessment by Dr Peter Morse, a psychiatrist appointed by the Medical Council, Dr Morse, in his report of 14 February 2012 concluded that the Respondent was suffering from "Major Depression". EVIDENCE OF REHABILITATION The Respondent's Evidence 1. The Respondent says in his statement of 31 October 2014 to the Tribunal: "40 Prior to my admission in May 2013 I did not fully understand or appreciate the nature of my problem with drug addiction and depression. 41 My admission to the clinic served as a turning point for me. The clinic provided me with an intense instructive program which enabled me to gain insight into the nature of my addiction, including issues related to the process of becoming an addict, early recognition of the signs and symptoms of relapse and relapse prevention. I realised that my recovery was about more than just abstaining from drug use." 1. He says in the statement that since the inpatient treatment he has benefitted from ongoing treatment and the conditions imposed on his registration. He says he has particularly benefitted from seeing his addiction psychiatrist Dr Glen Smith, his addiction counsellor Mr Jackson Walsh (and more recently Ms Michelle Stewart), and seeing the psychiatrist Dr Rastogi for management of his depression. 2. He said he has also benefited from ongoing support and assistance from his colleagues, family friends and wider support network. He says it has also been beneficial for him to engage in various therapy group meetings and activities and also in the 12 step recovery program and also the relationship counselling that he and his wife have undertaken. 3. The statement in his evidence is that the three fellow doctors practising in his Lithgow practice, Dr McCracken, Dr Golder and Dr Zolfaghari, are aware of the conditions on his registration and there are no Schedule 8 drugs kept in the premises at the Lithgow practice or in any of the doctors' bags. In addition, if it occurs that any of his patients needs a prescription for a Schedule 8 drug, he contacts one of the other doctors in the practice, provides them with the patient's history and the patient's notes and leaves it to the doctor to decide whether a prescription should be issued. The prescription is signed by the doctor and handed directly to the patient. 4. His evidence in the statement is: 48. I currently receive treatment from several practitioners and I engage in a number of activities in order to manage my depression and drug addiction. In particular. I: (a) attend consultations with Dr Glen Smith, psychiatrist, on a monthly basis. I talk to Dr Smith about my recovery and he provides me with advice about this process. I also discuss my thoughts and emotions with Dr Smith and he provides me with feedback; (b) attend consultations with Dr Richa Rastogi, psychiatrist, for management of my depression once every two to three months. depending on her recommendations. Dr Rastogi prescribes me with Cymbalta, an anti-depressant; (c) attend consultations with my general practitioner. Dr Sivakumar Kanagaratnam, once every three months. Dr Kanagaratnam prescribes me with Nexium. which is an antireflux drug, and Crestor, which controls my cholesterol level. We discuss my general physical and mental health. I saw Dr Madhu Tamilarasan while Dr Kanagaratnam was on long service leave from April 2014 to early October 2014; (d) attend group therapy sessions at the clinic every Thursday from 9.00 am until 3.00 pm for drug and alcohol counselling. These sessions are run by the drug and counsellor [sic] (who was Mr Walsh and is now Ms Michele Stewart) and attended by Dr· Smith. During the group therapy sessions) I tell the group about any emotional events which have happened over the preceding week. I receive feedback from the group and I give feedback to others. I find this process very therapeutic; (e) attend Narcotics Anonymous (NA) group meetings at the clinic every Tuesday from 7.30 pm until 9.00 pm. During these meetings) I have an opportunity to talk about my reflections and my recovery journey. I also listen to the reflections and stories of others at the meetings. I find this process very therapeutic; (f) write in a journal on a daily basis; (g) engage in meditation and prayer every morning; (h) read from a book called Just for Today (Daily Meditations for Recovering Addicts), as well as the AA book by Bill Wilson, on a daily basis; (i) listen to audio C.D's of people talking about addiction and the process of recovery during my trips to Sydney for group meetings; j) am completing the twelve steps program with my sponsor Ray, who I met while engaging in the NA group meetings. We talk over the phone occasionally and he assists in guiding me through the twelve steps to recovery; and (k) have started sponsoring some addicts who have recently started attending the NA meetings. Assisting others with their addiction problem has provided me with useful insight into my own addiction problem and assisted me in the recovery process." 1. In that document he said that after carefully considering and reflecting on the concerns expressed by the Medical Council, particularly in relation to his management of his depression and drug addiction: "49. I deeply regret the way in which I have managed my depression and drug addiction problem in the past. I acknowledge that my actions, particularly those relating to possession and self-administration of Schedule 4D and 8 drugs are unacceptable and had an impact on my career, my health and my family. 50. I understand the importance of ensuring compliance with the conditions which have been imposed on my registration. I accept that the concerns expressed by the Medical Council were serious and justified." 1. He said in his statement that in recent times he considers that he has been able to manage his depression and drug addiction problems: "even when faced with challenging personal circumstances". He refers there to his friend and colleague, a doctor in the practice, who was tragically murdered by her husband. He said that he was able to identify her body, liaise with detectives and the media, counsel her three children, arrange her funeral, give a eulogy at the funeral and assist her children in managing her financial estate. He also established a trust fund to support her children and organised fund raising events for her children in order to provide them with financial assistance. In addition, he had to increase his hours of work in order to take on her patients and also to conduct interviews to find a replacement. He then trained Dr Ruth McCracken, who was the replacement. 2. His evidence is that more recently ISIS has taken control of his home town of Mosul in Iraq and some of his relatives had to flee to the north of Iraq because they are Christians. In addition, relatives of his in the north of Iraq have fallen under direct threat from ISIS. He and his wife have been providing financial, emotional and logistical support for the relatives in Iraq. He says that this has been a very stressful time for him, but notwithstanding that he has not missed any of his thrice weekly urine drug tests and: "I have not felt tempted to use any drugs". 3. In oral evidence the Respondent acknowledged that his conduct in March 2013 when he was obtaining Pethidine for himself was a breach of the conditions of his registration. 4. He said that when he decided to seek to obtain a prescription from Dr Zolfaghari, he thought that that would not be a breach of the conditions of his registration. "I did not look as myself as a medical practitioner." He said he thought of himself as a patient because he was undergoing the surgery. He said: "I'm terribly ashamed of that." The tribunal is satisfied that despite this evidence he did know at the time that he was breaching the conditions of his registration. Later he was tearful when he told the Tribunal: "I feel very ashamed of lying and manipulations and deceit. I do I everything I can for my patients … That's what the addiction lead me to – it made me a liar, and took the best thing of my character - integrity – with patients, doctors and family and community. The only thing I am proud of is my dedication to my patients and their care." He told the Tribunal that he had gone to see Dr Zolfaghari after the Pharmaceutical Services unit had contacted him and told her that he had abused her trust and apologised. 5. As soon as he talked with a friend, who was a surgeon, about whether he could perform liposuction on the Respondent, "In a flash the scenario came up for me – to get Pethidine". He also said that he believed that his Pethidine addiction: "Is not about being about using it because I am depressed. I also use it when I am happy." 6. He said that his admission in 2013 as an inpatient was the first occasion that this had happened. He said that Dr Sutherland told him he had a problem and he should check into rehabilitation. He said he was grateful to her for that advice. He said that since he had undertaken the inpatient rehabilitation, he had started to read books and attended conferences and meetings to find out about addiction. He had been learning from people who were attending group therapy, Narcotics Anonymous and Alcoholics Anonymous, with him. He acknowledged that at times he had blamed other people for his addictive behaviour. 7. He said he proposes to continue his treatment routine and that basically involves stopping using, keeping a clean house, and helping others. He said he wants to continue his attendances with Alcoholics Anonymous and Narcotics Anonymous and to increase them. He also goes to a day group each Thursday for group therapy. He is continuing to take Cymbulta for his depression. When he was asked whether it is helpful with his mood disorder, he said: "I enjoy life". 8. He said that since he has been attending the counselling for him and his wife: "I have thought about how much my wife was hurting. I didn't think about her, about how much I was hurting her." 9. He said that he saw Dr Pethebridge in February 2013 because he felt he had lost his "passion". "I thought God and the bible might be the solution, so I became more involved in the church." 10. It was put to him that given he had had two lapses since he had self-reported originally, there was a question as to why the Tribunal should be confident that he will not relapse in the future. He said in response that he had had no temptation to use and had learnt more about addiction. "Now I have a real understanding and I am in true recovery. I have made amends to people I have hurt and review each day and what I have done, and others." He said he has no problems with the conditions and the urine testing continuing for the rest of his career as a doctor. 11. He conceded that he concocted the plan to obtain a second set of prescriptions from Dr Zolfaghari a few days after he obtained the first script and his plan included attending on pharmacies outside Lithgow in order to have the prescription made up. 12. He considered that although he told Dr Pethebridge about his plan to have liposuction, he did not tell him that one purpose was for him to obtain Pethidine. 13. At times in his cross-examination and when asked questions by Members of the Panel the Respondent speechified and gave answers that were not responsive or were tangential. 14. When he was asked whether he last thought of taking Pethidine in March 2013, he answered: "No. The thought comes but it is not attractive. I'm done with it.". He also said: "I'm a newborn person in recovery. I tried to mend my spirit, my soul and my behaviour. The use of Pethidine does not appeal to me. It's not part of my person. I don't want it to be." He also said he had reflected on the death of his fellow doctor in the practice and "I realised that is me". He acknowledged that he considers that he is slightly better than the average doctor in the service he delivers but not when using Pethidine. He conceded that he wasn't providing better care when he was suffering from his addiction in 2009 to 2011. 15. In his Affidavit he said in paragraph 73: "I acknowledge that my admission to the particulars of complaint 3 may lead to a finding of professional misconduct relating to the practice of medicine." 1. But in cross-examination he conceded that the conduct in complaint 3 did amount to professional misconduct. He acknowledged that it was a substance dependence and that he also suffers depression. His evidence in his statement was that: "My addiction to Pethidine is in remission". When asked what he meant by that, his answer was: "There is no cure. You have to be awake and prepared at all times. There is no cure for it. I am going to take it with me to the grave." 2. In paragraph 77 of his statement he said that he contends that he can continue to practice medicine without risk to the public provided that he continues the following: "a) compliance with the practice and health conditions placed on his registration and the Medical Council's monitoring of my compliance with the conditions; b) assistance and support of my treating practitioners, colleagues, family and wider support network; and c) ongoing participation in group therapy and other therapeutic activities." 1. He conceded that to practice medicine he needed to comply with those and without them he did not think he could practice medicine without a risk to the public. In answer to other questions he conceded that the contingency plan that he had in 2007 as to how he would avoid the availability of Pethidine was not sufficient to prevent him using it from 2009 to 2011. He said: "It was very superficial." He said his understanding now is that it was superficial and he did not have a "real understanding of the impact on others, such as the detail regarding my wife." 2. When he was asked about his understanding of his addiction and his depression, he said: "I knew I was depressed. But I thought if I stopped, I'd be alright. But after all the years, I came back to the same beginning." He said that to deal with his addiction: "I need to first understand the enemy – the overwhelming desire for behaviour to serve the addiction. Like a train you can't stop. Addiction is like a different person in my body at the same time and when the addictive behaviour is awake it takes everything good from the person I am. It's deeper than financial difficulty … it's about being honest, honourable, no ego. Powerless and need help. You need to fix things and keep watching your behaviour – learn from it and move on, every day a little improvement. Live in harmony with yourself and in harmony with what God wants me to do … You need understanding the addiction can come back at any time. You have to be always awake. You can't be complacent. The only way to recovery is being active with the addictive person in me asleep, and daily meditation, prayers, writing in my journal daily and talking to sponsors." 1. He said he could not believe that all these things could help him so much: "at the group therapy people tell you what they think, not what they think you want to hear." He said it also helps him that he is now giving other people advice. 2. He said that he understands that as part of the 12 Step program he is encouraged to recognise the harm that he has done to others by the use of the drug and make amends. He said he has known that since even before 2000. He acknowledged in answer to questions, that when he was using Pethidine he did harm to his patients because they were coming to him and trusted him and did not know he was lying to get on drugs, injecting and betraying their trust. He said he thought of putting something like an apology in the newspaper. However, when asked, he said he did not think that his patients had suffered "medically" from his addiction. 3. When asked whether he thought other doctors' patients suffer from such an addiction of the doctor, he said: "You think it must … the use will increase … and like driving, an accident will happen eventually." Dr Richa Rastogi, Psychiatrist 1. Dr Rastogi is a Consultant Psychiatrist specialising in psychotherapy and mood disorders. She has been treating the Respondent's problems of depression. In her report of 25 August 2014 she said that the Respondent reported using Pethidine "as a way to release his stress, but also had periods of significant abstinence." 2. Dr Rastogi has been treating the Respondent since his admission to the inpatient drug and alcohol program on 13 May 2013. She describes the Respondent as "very compliant with the program" and considers that he has through the services and programs addressed "some of his core areas needing intervention as well as addressing his enmeshed and emotionally charged relationship with his wife." She notes that they are seeking ongoing relationship counselling with a psychologist Anne-Marie Santa de Brigida. 3. Her initial consulting with the Respondent was in January 2012. She saw him a month later and then worked on stabilisation of his medication which was achieved in April 2013. She then reduced his contact with the Respondent to a consultation every six weeks. 4. She said the treatment with the Respondent initially was in relation to remission of his depressive symptoms, working with self-esteem, establishing good communication skills with his wife, and learning some distress tolerance and skills to address his conflicts. Dr Rastogi's opinion is that with his dose of Cymbalta since 26 April 2013 there has been a good response to treatment. Also, the Respondent and his wife had relationship counselling and this has assisted them to address issues in their relationship. 5. The consultations with Dr Rastogi are usually for 30-40 minutes. They discuss issues including his progress in relation to abstinence and also in relation to his mood patterns, social activities and relationship issues. Also anxiety regarding the future and legal proceedings are discussed and coping strengths identified. She says that the sessions are also used to validate the Respondent's achievements and to continuously identify stress and place some boundaries to enable him to function at his capacity. The sessions are also seen by Dr Rastogi as an opportunity to help the Respondent develop insight into possible vulnerabilities, reflect on them, and to suggest some alternate coping mechanisms. 6. As for improvement, Dr Rastogi reported: "Dr Baraz has made significant recovery and responded well to this intensive cohesive plan with development of insight into his addiction only recently after the last 6-8 months. His ability to accept his illness and vulnerabilities is a recent shift and this promises a good prognosis and recovery for the future provided he continues to maintain this level of engagement into the intensive program. His mood has been stabilised since being abstinent and making some environmental changes in his life. He has experienced some significant stressors but coped well and surprisingly managed to function well during these times. This is significant progress in his recovery. There has been a gradual improvement in general health and his psychiatric condition." 1. Dr Rastogi considers that the Respondent has developed "adequate tools for relapse prevention and (to) maintain abstinence from all drugs". She said that the Respondent's commitment to continue engaging actively in having good insight into the nature of his addiction "indicates good prognosis". She also said that the Respondent has achieved the ability to "recognise his warning signs and has deeper understanding of his addiction and triggers". She said: "Dr Baraz in his evidence demonstrates a good and deeper understanding of inner mechanisms that made him vulnerable to addictive behaviours. This has been a slow process but Dr Baraz's commitment to continue engaging in abstinence and (be) aware of ongoing supports needed is a reflection of his insight into his condition. He has been able to exercise and implement these tools during stressful situations and use alternative mechanisms to manage these high-risk situations." 1. In her oral evidence in cross-examination on 16 December 2014, she said she is now reducing their consultations to about every 2 or 3 months. She said the Respondent's mood had been stable since the introduction of his present medication and that he was showing no clinical depression on the last review. She said that he had some anxiety, but not serious enough to be an anxiety disorder. 2. Dr Rastogi said that depression can be a trigger at times to an addiction relapse and anyone with a history of drug addiction is at risk of a relapse of depression. She said that if the Respondent were depressed, his speech and behaviour in the family would be "cold and withdrawn". But she said there has now been a big change in his behaviour and his mental state. She described the Respondent as "more forthcoming", and said that he is managing stress well, managing depression, more insightful, more accepting of suggestions and compliant with the drug and alcohol treatment. 3. Dr Rastogi said that it is hard to make a prediction about a relapse and he considers the Respondent needs "long term treatment". That continuing treatment would be in respect of his depression and also in respect of his drug addiction problem. She said the Respondent should continue to attend Narcotics Anonymous and also continue attending group therapy with the Drug and Alcohol Services. She said the Respondent had told her that he wants to continue those treatments. 4. Dr Rastogi said that if these treatments continued mood disorder is unlikely to affect his work as a doctor. 5. In cross-examination Dr Rastogi conceded that ongoing coping by the Respondent is conditional upon him having continuing treatment and he should be managed by a drug and alcohol specialist and a mood disorder specialist. 6. Expanding on the "environmental changes" that she considers the Respondent has made, she said that the Respondent is now taking time out from work and spending more time with his family. 7. Dr Rastogi said that mood disorder and addiction "feed off each other", and, "active addiction increases the risk of depression and vice versa". 8. She said she had also noticed that the improvement in the Respondent's relationship with his wife and this and improvement in their communications were further indicators of his improved ability to understand his addiction problem and address triggers. Dr Glen Smith 1. Dr Smith is a drug and addiction psychiatrist. Dr Smith is based at the Northside West Clinic. He first saw the Respondent for assessment on his entry to the weekly outpatient Drug and Alcohol Program on Thursdays at the Clinic. This was after his inpatient admission. Dr Smith has since been the Respondent's treating addiction specialist. Dr Smith said that when the Respondent first presented to the Drug and alcohol service for treatment, his addiction was "serious" and he was concerned that the Respondent had had 2 relapses. He agreed with Dr Pethebridge's opinion that the Respondent's initial engagement/understanding with the service was superficial. "I think he thought he would be fine after detox. He needed to develop a focus on the ongoing need to focus on recovery." 2. Dr Smith sees the Respondent one day a week for one hour in the group therapy session. Depending on clinical need, he assesses the Respondent's progress formally in an individual consultation at between 1 and 4 week intervals. He wrote his report in August 2014. He had seen the Respondent in group therapy on 26 occasions and had seen him with his wife on one occasion. He had also seen him for individual consultations on 17 occasions. In his oral evidence in December 2014 Dr Smith said he usually sees the Respondent every Thursday in group therapy and he has also for individual review, which had then occurred 14 times in 2014. 3. Dr Smith said in his report that it is not possible to treat the Mood Disorder when addiction is active. The treatment of the Mood Disorder is contingent upon the Respondent maintaining abstinence. 4. Dr Smith says that one goal was to encourage engagement in a Narcotics Anonymous ("NA") fellowship and program and this has been successful. He described the Respondent as "very engaged" in NA and the 12 step programme for abstinence and said he has shown no resistance. Maintenance of abstinence from addiction has been achieved without prescribed medication. He described the Respondent's current program as follows: 1. Engagement in the NA program – * Attendance at NA meetings * Work with NA sponsor on Twelve Steps * Daily commitment to abstinence * Daily journal readings and meditations/prayer. 1. Weekly outpatient group therapy (Thursday) at the Northside West Clinic. 2. His progress is monitored with three times weekly urine drug screening (as required by the Medical Council of NSW). 1. The consultations between Dr Smith and the Respondent are usually 30-45 minutes. The issues discussed include insight with respect to the treatment program, predictions, progress and attendance at meetings of NA, and progress in group therapy. 2. Dr Smith said of observed changes and improvements: "Throughout the course of treatment there has been a gradual improvement in general health and his psychiatric condition. Initially Dr Baraz's insight into the nature of addiction was only partial. With treatment this has improved markedly and he has accepted the need for abstinence from all addictive substances and behaviours. His mood has remained stable despite significant stressors in his life." 1. Dr Smith testified that the Respondent: "now demonstrates good insight into the nature of his addiction (to only Pethidine but to other substances such as alcohol). He said: "He is aware of the requirements for full ongoing engagement in his recovery program in order to maintain abstinence. He has demonstrated the ability to recognise triggers to relapse and has managed those actively to prevent relapse to addiction." 1. Dr Smith's opinion is that the Respondent is: "… presently fit to practise as a general practitioner. His likely future fitness to practice depends on his ongoing progress in recovery from addiction. Given his good progress in developing insight and understanding of his addiction and the required ongoing engagement in his recovery program it is likely that he will remain fit to practice as a general practitioner." 1. Dr Smith said in his oral evidence in December that the Respondent: "Developed insight quite quickly", and that he was: "well engaged" in the group program and with NA and the other programs". He said the Respondent: "Also well recognised improvements to himself and to others". He said that initially the Respondent: "was blaming relationship difficulties and others", which is common in addiction, but: "now he understands his role in those and addresses it". He said that the biggest change is his ability: "to reach out to others", which many people with addictions cannot do. He said it was demonstrated that the Respondent was reaching out to the available supports and engaging in the group programs and other programs he was involved in. 2. He acknowledged that initially his involvement in the group program was superficial but now, he is "an integral part of the group", and it is clear over the last year that this has been an especially important part of his recovery. 3. Dr Smith said that "self-centeredness and ego are common problems for addicts, but the Respondent, now has gone to humility as part of his recovery". 4. Dr Smith was aware that the Respondent initially lied in April 2013. When asked whether this was attributable to his character or to his addiction, he said: "It is a common part of the addiction. I know him well. I don't find him to be a person who lies. That's his character. He has not continued the attributes of an addicted person". He said his use of a doctor to obtain scripts and to deceive the doctor was conduct that was part of the addiction because: "Addicted people look for opportunities to obtain the substance, but through recovery they have to live with and manage opportunities rather than just exclude them". 5. Dr Smith was of the opinion that the Respondent had not previously fully engaged in treatment for his addiction until after the inpatient rehabilitation. He said that his opinion is: "I don't think his problem presently adversely affects his work as a doctor. I think it is quite unlikely that it will affect his work in the future." 6. Dr Smith's opinion was that initially the Respondent was telling the doctors what he thought they wanted to hear. But he says that this is not the case now and he is: "fully engaged in his treatments". 7. In cross-examination Dr Smith said that he was aware of the lies the Respondent had told the Medical Council and what he had said. He was aware that he lied about obtaining the medication, obtaining the prescriptions and writing prescriptions. He said that all of that conduct occurred during his active addiction and prior to his inpatient admission. He said he was aware of the Respondent's plan to obtain drugs purportedly for anticipated pain after liposuction. He conceded that people can: "lie to avoid disciplinary action/consequences". He said that: "Some lies coincided with the active addiction. If not in a recovery program, the addict is either using or going to." 8. Dr Smith's opinion is: "He's been in the recovery since he completed the inpatient period." He said that in active addiction people do lie but since the Respondent has been out of active addiction he has been: "honest and open". He said: "when in active addiction the primary motivation is to continue the addiction". 9. He was asked about his understanding of impairment and he said: "When people are in active addiction they have impairment. When they are not, they don't have that impairment. People in depression may be impaired." He said the Respondent has an addiction but it is in remission. He said that his opinion that the Respondent is: "presently fit to practice as a general practitioner" is subject to his ongoing participation in his recovery program. 10. Dr Smith acknowledged that depression is a relapsing illness but he said: "I've primarily been treating him for addiction". He said substance dependence is a relapsing illness but it is difficult to predict when he will relapse. He said that if a patient is in a complete recovery program (such as the Respondent) then relapse is less likely. 11. Dr Smith said in cross-examination that the Respondent has been "facilitating other members into the 12 Step program". His opinion is that work and other stress were triggers for the Respondent but now he is managing his work stress, reaching out to others, and has coped well with very stressful events at work. He said that the Respondent deals with anxiety by deep breathing, meditation and prayer, and has improved markedly in respect of developing insight since Dr Smith first saw him. 12. In answer to questions from the Panel, Dr Smith said the most important thing is that the Respondent adhere to the arrangements under the program. He said that the Respondent can increase his involvement at times of high risk. 13. He said that he and the Respondent discuss "idle time". He said that he has thought about being comfortable with idle time and using it for meditation and prayer. 14. Dr Smith expressed concern as to how the Respondent would accept the situation if he was not able to work. "It would require a huge change to his recovery program", but: "I don't think he's dependent on me at all or on the NA program. He is in a well-functioning group … I provide the overall supervision." 15. In re-examination Dr Smith said that from discussions with the Respondent he had had a large number of relapses; not just the three. But he said: "Fifteen or so is an average". Mr Jackson Walsh (Nurse/Therapist) 1. Mr Jackson Walsh has known the Respondent since his admission to the Northside West Clinic as an inpatient in May 2013. He is a Nurse/Therapist engaged in the outpatient service. There are two reports from Mr Walsh in evidence. He says that the Respondent has been a regular attendee at the Thursday addiction outpatients group, has been an active member of the group, and has: "displayed a willingness to work on a solid recovery program". He said that the Respondent: "has built a strong connection with other group members and has been both supportive and supported by the group". He notes that the Respondent has only failed to attend when he has been on holidays or attending to work or legal matters. 2. He said in his report: "Dr Baraz reports attending Narcotics Anonymous meetings on a regular basis and displays both insight and knowledge of the recovery program on that fellowship. He has been able to identify with the other addicts in the group and has been able to gain insight into contributing factors to his drug use. Initially Dr Baraz was primarily concerned with arresting his drug use but has subsequently gained awareness regarding underlying stressors and triggers that have led to drug use in the past. Dr Baraz has been able to share honestly about the impact that his addiction has had on his career, health and family. He has also built a strong recovery network around him to support his continued abstinence." 1. Mr Walsh was not cross-examined. EVIDENCE FROM THE RESPONDENT'S GENERAL PRACTITIONER 1. In the Respondent's case there is evidence from his general practitioner, Dr Siva Kanagaratnam. Dr Kanagaratnam has been practising as a doctor since 1985. He has been in general practice at Lithgow since 1990. In 1990 he obtained a Diploma of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists. In 1992 he completed a family medicine program of the Royal Australian College of General Practitioners. In 1999 he became a Fellow of the Australian College of Rural and Remote Medicine. 2. Dr Kanagaratnam has been the Respondent's general practitioner since May 2007. The Respondent consulted him infrequently until February 2010 and since then has seen him every 4-12 weeks depending on his medical and mental health issues. The consultations that are relevant in these proceedings are as follows: 3. 4/2/2010 A prolonged consultation regarding stress related illness and his need for counselling 4. 11/6/2010 A long discussion regarding stress and burn-out issues. A mental health care plan was prepared and the Respondent was referred for counselling with a clinical psychologist. 5. 29/7/2010 The Respondent was commenced on Zoloft and advised to see the GP again in three weeks and to continue seeing the counsellor. 6. 16/9/2010 The Respondent complained of panic attacks and insomnia. He was given a trial of Avanza in slowly increasing doses. 7. 17/12/2010 A consultation of more than 30 minutes regarding ongoing depression and family and work stress. He was advised to see a psychiatrist to clarify his diagnosis. He was going on holidays and asked to see the GP in three weeks' time. 8. 7/1/2011 He advised the GP that he was ceasing Avanza "due to ineffectiveness with his symptoms". He was informed that the GP had phone consulted (with his consent) a psychiatrist in Dubbo. He advised to have blood and urine screens and then follow up in February. The Respondent agreed to the blood screen, was given the referral, but failed to attend for follow up. The drug screen showed Benzodiazepine but nil for other illicit drugs. He was informed of the result and told the GP that: "he was taking some Benzodiazepine PRN". 9. 10/11/2011 Lengthy conversation in which the Respondent informed his GP of his recent substance abuse and the involvement of the Medical Board. 10. 13/11/2011 Home visit consultation: "to see how Dr Baraz was coping after his last visit with me and also to see how he and his wife were coping with their second child". In that consultation the Respondent admitted to being depressed and low, and expressed some suicidal thoughts, but denied any plans. He agreed to see a psychologist. 11. 17/11/2011 Phone consultation. The Respondent was quite agitated when informed that he could not get an appointment to see the psychologist of their original choice. He was upset during the conversation and texted the GP the next morning to apologise for his manner the day before. 12. 24/11/2011 Patient attended GP after he saw a psychologist. He was further advised about the need for him to see a psychiatrist and not to self-prescribe any medication. The GP noted: "He was also advised and agreed to me informing the NSW Medical Board as an impaired doctor". 13. 20/12/2011 Patient given referral to a psychiatrist. He was seen by Dr Rastogi, a psychiatrist at Northside West Clinic. 14. 12/1/2012 He was seen for follow up and had further discussions for his need for drug and alcohol counselling. 15. 13/3/2012 Further discussions regarding drug and alcohol counselling. 16. 23/5/2012 The Respondent informed his GP that he was coping well and had a decrease in his depression symptoms. He denied any illicit drug use. 17. 15/8/2012 The Respondent had an ear infection and was prescribed antibiotics. He complained of severe pain and was given Panadeine Forte and advice of the risk of addiction and side effects. 18. 6/12/2012 The Respondent was given a further mental health care plan referral to a psychologist. He said he was coping well with work and family issues. 19. 17/1/2013 The Respondent requested a referral for liposuction. 20. 19/3/2013 The Respondent saw the GP three days prior to the proposed liposuction surgery and was given a prescription for 80 Panadeine Forte tablets for: "post-op use as analgesia". 21. 9/4/2013 The Respondent saw the GP and complained of post-operative pain and discomfort. He was given a prescription for Panadeine Forte. (The GP was not informed until after this consultation regarding the Respondent's recent use of Panadeine with scripts for pain from a doctor in his practice.) 22. 9/9/2013 He complained of sleep apnoea. 23. 21/1/2014 He was given a referral to Dr Underwood for sleep apnoea. 24. 19/3/2014 The Respondent told GP he was coping well, attending regular NA meetings and seeing his counsellor and psychiatrist regularly. Arrangements made for Respondent to see another doctor in the practice during GP's absence on holidays. 25. Dr Kanagaratnam expressed the opinion that when he last saw the Respondent on 19 March 2014: "He was improving mentally and physically. He denied any significant drug use and he informed me he was attending Narcotics Anonymous and counselling regularly and was seeing his psychiatrist regularly." 1. The GP spoke to the Respondent in late 2014 following the death of the practitioner in the Respondent's practice. He said in his report: "He told me he was shattered and very saddened by this news but he felt he was coping well. This is especially relevant considering that Dr Baraz and his wife were required to deal with widespread media involvement, the practice requirements, patient enquiries and counselling, and the immediate legal and financial concerns both personal and within the practice, resulting from this doctor having no immediate family in Australia apart from her surviving three children. Dr Baraz specifically denied any drug use and he was not depressed or suicidal etc according to him." 1. Dr Kanagaratnam also expressed an opinion that the Respondent appears to now have: "… significant insight into his addiction and the harm it has caused him, his family and his reputation. He probably lacked this insight in the past but over the past 6-12 months he appears to have significant insight into his issues and made significant improvement in his issues. He specifically denies any desire for Pethidine and appears to have a much better insight into the triggers for his addiction." 1. The doctor also expressed the opinion that the Respondent: "has developed a significant understanding of how to manage his addiction issues", and also that his addiction had never affected his medical practice so far as Dr Kanagaratnam was aware. He said: "He relates well to his patients and to the best of my knowledge there has not been any major medical issues related to the care of his patients. He appears to be a dedicated, caring and well-liked doctor in Lithgow". EVIDENCE OF MEDICAL PRACTITIONERS IN THE RESPONDENT'S PRACTICE 1. Dr Anargs Zolfaghari is the doctor in the Respondent's practice from whom he obtained the two lots of prescriptions in March 2013. He was her supervisor at the time. He had commenced working as a GP in the same practice in April 2012. In her response to questions from the solicitor for the Respondent she said that in the first few days of working in the practice she realised that: "All patients love and respect him as his thorough approach and caring manner was exceptional." She said that she values his medical knowledge "and great patience that he showed during my many questions to him as my supervisor." She described his relationship with his colleagues and staff as "caring and friendly". She attends the same church as him and they also both attend Bible Study sessions. 2. She said that although she knew that he was not allowed to prescribe Schedule 8 drugs she never asked him why. She said that if any of his patients needs such a medication, she will require him to give her a brief history, she will review the medical notes, and if she feels the request is medically justified, she will print and sign the script and hand it to the patient herself. Her evidence is that he has never requested her to give him a script. 3. She says: "I was informed about his addiction after an incident last year which he [sic] apologised for after the incident". She also expressed the opinion that he has insight into his addiction and that his medical skills and professional approach to patients: "made him one of the most popular GP's in the town". 4. Dr Zolfaghari was cross-examined. She has been with the practice since April 2012. She said that before she took the job with the practice she sat with him for three weeks while he worked in the practice. She said she learned from him how to communicate with patients. "They loved him and expressed their interest in him." She described him as: "thorough and caring". She said he used observations and conversation to find out more about each patient. She says he has continued to be a mentor to her. She said he does not attend the practice on Thursdays because of his commitments with his drug and alcohol treatment. But on other days: "He is always open to answer any questions I have". 5. She said that after she found that he had "used me" in March 2013 to obtain two sets of prescriptions, when he returned after the surgery, he apologised to her. She said that when she found out he had told her a lie she was: "shocked and sad". She has been his supervisor for purposes of his urine testing. She is happy to continue to be his supervisor for the urine testing. She said the Respondent is a: "very experienced general practitioner. He shares his knowledge. The patients prefer to see him." She also said that the Respondent is: "very supportive of the other doctors". 6. Dr Zolfaghari testified that she is confident that notwithstanding her trust of the Respondent she would challenge any suspicious referral for a script for a Schedule 8 drug. 7. Dr Muktalta Golder also works in the Respondent's practice. She has worked there since 29 October 2012. She graduated in medicine in Bangladesh in 2003 and completed her internship in 2004. She then migrated to Australia and in 2008 completed the requirements to become a registered medical practitioner in Australia. She has worked as a doctor in various hospitals in Queensland and New South Wales prior to joining the practice in Lithgow. 8. She said in her report: "From the very beginning he appears to me as a very co-operative, supportive, clinically oriented, professional and a caring health care provider as well as a mentor who is very knowledgeable and having sound clinical expertise. He is easily approachable, and very forthcoming in providing his guidance to a junior doctor even at a complicated and challenging situation. His cool, calm and empathic approach towards his health care service and a real passion for the well-being of his patients is easily noticeable towards his patients and towards the staff members alike." 1. She said the Respondent had not disclosed to her his problems with depression and Pethidine addiction until June 2013. He did so in the presence of the practice manager and assured them he was obtaining appropriate medical and psychological help to overcome his difficulties. He evidence is that she had never noticed his health problems affect the quality of his professional care and judgment in any way and she has never observed any compromise of patient safety under his care. 2. She expressed the opinion that the Respondent: "has good insight into his health problem and so far as I understand he is well compliant with the management plan of his treating team." 3. She has never been requested by the Respondent to prescribe any medication for him. She said: "If one of his patients needs a medication that Dr Baraz himself does not prescribe, he sends the patient to one of the other doctors in this practice. In such a situation I always have full access to the patient's history and I have full liberty to make a choice of medication that I like to prescribe for the patient. Dr Baraz never influences my decision making of prescribing Schedule 4D and 8 drugs in any way. If I prescribe any such medication for the patient based on my own clinical judgment, I always hand the script to the patient and it is [sic] the standard practice in this medical centre regarding these drugs." 1. Dr Golder said that during her experience of the Respondent since she met him in October 2012: "I have always found him a fully competent medical practitioner and in relation to his health problems my understanding is that currently he is working hard to overcome these difficulties. I am strongly optimist about his abilities to deliver quality health care in future based on the fact that he has good insight into his addiction problem and he appears to be strongly committed to combating his stressors and triggers and he is well-compliant with the management plans of his treating team." 1. The other doctor in the practice is Dr McCracken, who graduated in 1985, has worked as a general practitioner since 1987 onwards and joined the Respondent's practice on 23 June 2014 after sitting in with the Respondent in his work for three days. For three days each week they are both working in the practice and Dr McCracken says that this has: "… provided me with extensive opportunities to observe his interaction with staff, colleagues and patients. Dr Baraz and I consult each other on individual patient management on a daily basis, which again provides many opportunities to observe his clinical manner." 1. She says that since they met the Respondent "has been very frank" with her about his narcotic addiction, depression, his treatment for both conditions and his matter before the Medical Council. He has told her in detail about the rehabilitation treatment at Northside West Clinic that he continues to attend as a day patient on a weekly basis. He also has told her about his attendance at Narcotics Anonymous every Tuesday evening. Her opinion is that the Respondent has demonstrated considerable insight into his addiction, its permanence and the need for ongoing treatment and management. She also says that he has insight in recognising that he had depression, the role that this plays in his addiction, and that management of his depression is vital in order to manage his addiction now and in the future. 2. She also says that it is her experience that he recognises the importance of broadening his interests and contacts outside the medical practice and he has arranged his practice schedule to be able to attend a weekly Bible Study group which he has told her that he finds spiritually fulfilling and intellectually challenging. She also said in her report: "Dr Baraz was very frank with me about his realisation during his rehabilitation treatment that he had a previously unmet need to express his feelings – as a doctor, he was accustomed to doing that for others but had not actively recognised that he needed that himself, too." 1. She said that this lead to him realising the value of the time he spends with the various groups for the opportunities they give him to express: "his deep concerns and feelings", and that attending the groups: "is not simply a set component of his therapy, it is something he actively looks forward to because he feels it makes a real and measurable difference to managing the day-to-day stressors and triggers of his depression and his addiction: 1. Of his interactions with patients that she has observed she says it is: "very obvious … that his patients love and respect him, not just for the high quality of his medical care, but for his humanity as his listens to and advises them. In consultation it is clear that he cares about his patients' welfare and that he is not self-absorbed." 1. She said that he is caring towards staff and colleagues. In addition he is always courteous, fair and clear in his dealings with the staff. She says: "He always appears even-tempered despite the sometimes pressured situations that can arise in a busy general practice". 2. Dr McCracken says that she values his medical knowledge and "great patience he has displayed" during her many questions of him given that she entered the practice suddenly, "at a time of great grief and stress among the doctors, staff and patients following the violent death of one of the doctors". 3. Dr McCracken also described the systems that have been put in place in the practice to handle Schedule 8 medications. None are kept on the practice premises nor in the doctors' bags. If one of the Respondent's patients requests a Schedule 8 script, the Respondent contacts her or one of the other two doctors, gives a brief patient history and makes the patient notes available. The doctor to whom the matter is referred has to then be satisfied that the request is medically justified and then prints and signs the prescription and personally hands it to the patient. She has not ever given a script to the Respondent, nor has he at any time requested that she do so. She says that in her time at the practice she has not observed any patients "shopping" for prescriptions for drugs of addiction. 4. Dr McCracken was not cross-examined. CHARACTER EVIDENCE 1. Character evidence was provided by the Editor of the Lithgow Mercury, the Pastor of the Lithgow Bible Church (also owner of a private printing company), and the CEO of a private health insurance company with a staff of 170. 2. Each of those people is a patient of the Respondent and testifies as to his excellent care and professionalism. Each has complete confidence in him. Each has had a long-term relationship with him. In one case Dr Baraz questioned another doctor's diagnosis of kidney stones and after further investigation, kidney cancer was confirmed. Subsequently the same patient had earlier been diagnosed with haemorrhoids but Dr Baraz ordered further tests and bowel cancer was discovered. 3. The pastor has also had a relationship with the Respondent through the Church and describes him as: "… moving from being a nominal Christian to someone who has made a personal commitment to being a follower of Jesus Christ … ashamedly so, even among some of his sceptical peers. However, his spiritual journey has not been without struggles." 1. The pastor has been informed by the Respondent of his issues with depression and narcotics, but does not indicate that he is aware of the history of the narcotics problem, despite the pastor and his family having frequent close contact with the Respondent's family. He describes the Respondent as: "One of the most sought after GP's in the district", and said he is valued as a very careful, caring and thorough doctor. He relates that the Respondent questioned his wife's clearance for breast cancer and urged her to have subsequent tests done, and after about four tests breast cancer was discovered in her nipple. He relates various other details of careful and excellent service by the Respondent. 2. The CEO of the health insurance fund has known the Respondent since 2007 as a patient and through his work. He says that he was informed by the Respondent of his problems with depression and his Pethidine addiction, but does not state what details he was provided. He says that he would always choose the Respondent as his doctor because of his excellent reputation in the community, the results he has achieved with himself through the Respondent and particularly the Respondent's preventative approach. He speaks of the Respondent's: "very valuable contribution to the community", and says that he has been impressed by the Respondent's personal involvement in many community activities, and his support for the children of the doctor who was murdered. UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT 1. Section 139B of the National Law defines unsatisfactory professional conduct as follows: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (c) A contravention by the practitioner (whether by act or omission) of- (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. (d) A contravention by the practitioner (whether by act or omission) of a decision or order made by a Committee or the Tribunal in relation to the practitioner. (e) A contravention by the practitioner of section 34A(4) of the Health Care Complaints Act 1993 . (f) Accepting from a health service provider (or from another person on behalf of the health service provider) a benefit as inducement, consideration or reward for- (i) referring another person to the health service provider; or (ii) recommending another person use any health service provided by the health service provider or consult with the health service provider in relation to a health matter. (g) Accepting from a person who supplies a health product (or from another person on behalf of the supplier) a benefit as inducement, consideration or reward for recommending that another person use the health product, but does not include accepting a benefit that consists of ordinary retail conduct. (h) Offering or giving a person a benefit as inducement, consideration or reward for the person- (i) referring another person to the registered health practitioner; or (ii) recommending to another person that the person use a health service provided by the practitioner or consult the practitioner in relation to a health matter. (i) Referring a person to, or recommending that a person use or consult- i) another health service provider; or (ii) a health service; or (iii) a health product; if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of the interest to the person before or at the time of giving the referral or recommendation. (j) Engaging in overservicing. (k) Permitting an assistant employed by the practitioner (in connection with the practitioner's professional practice) who is not a registered health practitioner to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill. (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. (2) For the purposes of subsection (1)(i), a registered health practitioner has a "pecuniary interest" in giving a referral or recommendation- (a) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a public company and the practitioner holds 5% or more of the issued share capital of the company; or (b) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a private company and the practitioner has any interest in the company; or (c) if the health service provider, or the supplier of the health product, to whom the referral or recommendation relates is a natural person who is a partner of the practitioner; or (d) in any circumstances prescribed by the NSW regulations. (3) For avoidance of doubt, a reference in this section to a referral or recommendation that is given to a person includes a referral or recommendation that is given to more than one person or to persons of a particular class. (4) In this section- "benefit" means money, property or anything else of value. "recommend" a health product includes supply or prescribe the health product. "supply" includes sell. 1. Section 139E of the National Law defines professional misconduct as follows: For the purposes of this Law, "professional misconduct" of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. COMPLAINTS 1, 2 AND 3 - CONCLUSIONS 1. The Respondent has admitted that his conduct under each of complaints 1 and 2 amounts to unsatisfactory professional conduct and that a finding of professional misconduct is open to the Tribunal in respect of complaint 3. 2. Complaint 1 involves pursuit of his pethidine addiction by grossly unethical conduct, which is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. It involves on 2 occasions imposing on a more junior doctor in the practice who is his supervisee and deception of that Doctor in order to obtain drugs. 3. The conduct described in respect of Complaint 2 comprises 5 serious breaches of the conditions of the Respondent's registration imposed to ensure that his practice as a medical practitioner is not a danger to the public because of his problems with depression and addiction to drugs. 4. When considered together, the conduct the subject of Complaints 1 and 2 (instances of unsatisfactory professional conduct) are sufficient to amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration and therefore amount to professional misconduct. 5. The relevant conduct of the Respondent was serious professional misconduct. It is conduct that breaches ethical standards and the conditions on his registration imposed to ensure his services are provided safely and are of appropriate quality. It is also conduct that damages the reputation of the profession and erodes public confidence in the profession. 6. COMPLAINT 4 - CONCLUSIONS 7. The complaint is that the respondent has impairment by way of mood disorder and/or drug dependence which detrimentally affects, or is likely to detrimentally affect the practitioner's capacity to practice the profession of medicine." 8. The definition of "impairment" in section 5 of the National Law is as follows: - 9. "Impairment", in relation to a person, means that person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence), that detrimentally affects or is likely to detrimentally affect - 1. a) For registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or 2. b) For a student ………… " 1. Section 139 of the National Law provides 139 COMPETENCE TO PRACTISE HEALTH PROFESSION. A Person is competent to practise health profession only if the person – a) Has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and b) Has sufficient communication skills for the practise of the profession including an adequate command of the English language." 1. It is clear that Dr Pethebridge's opinions regarding the present condition of the respondent are positive, although they are not as positive as those of Dr Rastogi, Dr Smith and Mr Walsh, who all are of the opinion that the respondent' mood disorder and his addiction are in remission. That view is supported by the evidence which discloses no relapse in relation to drugs in the period from November 2011 to December 2014, other than events in March 2013. 2. It is clear that since the respondent's inpatient admission in May 2013, there have been dramatic changes in the respondent's life addressing his mood disorder and his addiction. This supports the more positive opinions of Dr Rastogi, Dr Smith and Mr Walsh. Another reason for adopting their more positive opinions is that they are the opinions of experts of the field of drug and alcohol addictions and they have had closer and more extensive involvement with the respondent and observations of him than Dr Pethebridge has had. 3. The opinions of those people are also supported by the evidence of the respondent, his fellow practitioners in his medical practise and his lay witnesses. 4. The Tribunal accepts that respondent's mood disorder and his addiction are in remission and will remain in remission as long as he continues the various therapies and restriction currently in place. 5. The Tribunal is satisfied that the respondent is "competent" within the meaning in Section 139 of the National Law. 6. Although it is clear on the evidence that if either his mood disorder or his addiction were not in remission, the respondent's capacity to practise as a general practitioner would be detrimentally affected or likely to be detrimentally affected, the relapse in March 2013 occurred at the time when the respondent was not working in his practise and there is no evidence before the Tribunal of any adverse effect on any patient since November 2011 or prior to that. There is no evidence of any complaint to suggest that either his mood disorder or his addiction had any actual adverse effects on any specific patient. 7. The Tribunal is satisfied his mood disorder and/or addiction do not constitute an impairment as defined in section 5 of the National Law because they do not currently detrimentally affect, or are likely to detrimentally affect, his capacity to practise his profession. THE RELEVANT LAW 1. This is a hearing under Subdivision 6 of Division 3 of Part 8 of the National Law. Section 3A provides that in exercising its functions the Tribunal must treat "the protection of the health and safety of the public" as the paramount consideration. The focus of these proceedings is not the punishment of the respondent. (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637). 2. Disciplinary proceedings against members of a profession are intended to maintain proper and ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession (Health Care Complaints Commission –v- Litchfield [1997] 41 NSWLR 630 at [637]). 3. The public interest served by protective orders include the indirect effects such as the standing of the profession and maintenance of public confidence in the profession (Prakash –v- Health Care Complaints Commission [2006] NSWCA 153 at [91]). 4. Protective orders can also involve an element of deterrence in the sense of encouragement to other practitioners to recognise the importance of compliance with professional standards and the risks of failure to do so (Prakash –v- Health Care Complaints Commission [2006] NSWCA 153 at [91]). 5. The specific purpose for which the Tribunal makes orders is protective of the public interest rather than punitive with respect to the practitioner. But protective orders can also be punitive in their effects on the practitioner (Lee –v- Health Care Complaints Commission [2012] NSWCA 80 at [20]). An example would be where a condition is imposed requiring supervision and the practitioner has to pay the cost of the supervision. 6. It has also been held that in addition to the protection of the public, other relevant purposes of such proceedings under the National Law include the need to maintain the standards of the relevant profession, to deter the practitioner from further such conduct, to deter others from engaging in like conduct and to maintain public confidence in the profession..(e.g. Gayed v Walton [997] NSWSC 279 at 6; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; and Health Care Complaints Commission v Howe [2010] NSWMT 12 at [31]) 7. Basten JA in NSW Bar Association v Meaks [2006] NSWCA 340 at [114] listed other important but indirect effects of the other disciplinary order which should be considered when determining an appropriate protective order. They were: 1. Reminding other members of the profession of the public interest in the maintenance of the high professional standards; 2. Emphasising to the unacceptability of the kind of conduct involved in the disciplinary offence; and 3. Maintaining high standards of the profession with the public being aware of the order. 1. Numerous decisions have recognised other considerations beyond direct protection of the public ( e.g.C Skinner v Beaumont (1974) 2 NSWLR 106 f109; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 471B; Seville v HCCC [2006] NSWCA 298 at [45]; Lee v HCCC [2012] NSWCA 80, at [20] – [21]; Re Dr Parajuli [2010] NSWMT 3 [32]; HCCC v Dr Graeme Harris [2008] NSWMT 6 at [175]; HCCC v King [2013] NSWMT 9 at [27]). 2. In Prakash v HCCC [2006] NSWCA 153, the Court of Appeal held (at [74]) 3. "When conditions are imposed, as they were here, for restoration to practise, those conditions must be scrupulously observed. It is even more serious when dishonesty supervenes ….." 4. Similarly, in HCCC v McHue (NSW Medical Tribunal. 14 December 2007), The Medical Tribunal held at [45] 5. "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, they are honest with the panel, expert assessors and others whose task it is to make 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 to scrutiny to continue in practise. Without honest dealing by such practitioner, 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 Panel and to experts appointed to the Board and this Tribunal as justifying suspension or deregistration even when where the original conduct may well not have, of itself, led to such a result." 6. Subdivision 6 of Division 1 of Part 8 of the National Law describes the powers that may be exercised by the Tribunal where a practitioner has been found to have engaged in professional misconduct. They include under s.149A: (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. 1. Under ss.149B there is also a power to impose a fine on a registered health practitioner of not more than 250 penalty units where the Tribunal has found the registered health practitioner is guilty of unsatisfactory professional conduct or professional misconduct and the Tribunal is satisfied there is no other order or combination of orders that is appropriate in the public interest. 2. Section 149C give the Tribunal power to suspend or cancel the registration of the practitioner where: (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. 1. Before a medical practitioner is deregistered, the Tribunal needs to find that the practitioner is probably permanently unfit to practice (Ex parte Lenehan (1948) 77CLR 403 at 424-425 (per Latham CJ, Dixon and Williams JJ – Rich and Stark JA dissenting). PROTECTIVE ORDERS 1. The applicant seeks the following protective orders; 1. Cancellation of the respondent's registration for a period of 18 months 2. In the alternative, if the Tribunal is not satisfied that cancellation is appropriate, then; 1. The respondent is suspended for three to six months, 2. The respondent is reprimanded, 3. At the end of suspension the respondents registration be subject to current conditions and to further conditions: 4. Respondent see the Narcotics Anonymous at least monthly and authorise the Council to confirm the fact of attendance with Narcotics Anonymous; 5. The respondent attends to the group therapy relating to addiction weekly and authorise the Council to confirm the fact of attendance with the group therapy provider; 1. The respondent pays the complainant's cost as agreed or assessed. 1. Counsel for the Medical Council stated in written submissions that although the Council cannot formally monitor conditions while respondent is in suspension, the Council can assist in monitoring the respondent if during the period of suspension, the respondent elects to continue complying with his former conditions. The Council therefore seeks, if there is to be a period of suspension, "a recommendation to the respondent from the Tribunal for the respondent to continue with his current conditions on his own volition." 2. The submission for the Respondent is that he does suffer impairments but they are in remission at present and not likely to detrimentally affect his capacity to practise as a general practitioner. The submissions for the respondent inform the Tribunal that he proposes that his current conditions on his registration "should remain in place for indefinite period. His intent is to continue with his current treatment regime, including urine testing and Narcotics Anonymous for the remainder of his time in practise." The respondent testified to his willingness in the witness box. 3. Various powers may be exercised by the Tribunal in relation to complaints proved or admitted as set out in Section 149, 149a, 149b and 149c of the National Law. They include imposition of a fine, suspension or cancellation of registration, caution or reprimand, imposition of conditions on the registration of the practitioner and orders for the practitioner to take and undergo medical or psychiatric treatment or counselling or call the practitioner to complete an educational course specified and an order for the practitioner to report on his practice to persons specified by the Tribunal. 4. The Tribunal has determined that the complaints proved constitute professional misconduct that requires for the protection of the public, the reputation of the profession and for deterrence of the respondent and other practitioners that orders be made that: 1. The respondent is reprimanded; 2. The respondents registration is suspended for 3 months from today; 3. After expiry of the suspension the Respondent's registration is to be subject to the conditions current at 17 December 2014; 4. If the respondent resumes practise, his registration be subject to a condition that he attends meetings of Narcotics Anonymous at least monthly and authorises the Council to confirm the fact of attendance with Narcotics Anonymous; 5. If he resumes practise, his registration be subject to a condition that the respondent attend group therapy relating to addiction weekly and authorise the Council to confirm the fact of attendance with the group therapy provider; 6. This Tribunal recommends to the respondent that during the period of the suspension he comply with the conditions imposed by the decision in the proceedings under section 150 of the National Law on 11 June 2013 (including thrice weekly urine drug testing in strict accordance with the Council's protocol). COSTS 1. The Applicant has sought an order for the Respondent to pay the Applicant's costs. 2. In relation to costs, under Subclause 13(1) of Schedule 5D of the National Law the Tribunal may order the complainant or the registered health practitioner to pay costs to another person as decided by the Tribunal. Subclause 13(2) provides that: "When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a Certificate setting out the terms of the order and stating that the order has taken effect." 1. Given that these proceedings arose because of unsatisfactory professional conduct and professional misconduct of the Respondent, the outcomes of the proceedings and the fact that the Respondent has not opposed the Commission's application for costs, the power of the Tribunal under Clause 13 of Schedule 5D of the National Law to make a costs order should be exercised by making an order for the Respondent to pay the Applicant's Costs. ORDERS 1. Accordingly, the orders of the Tribunal are: - 1. The respondent is reprimanded 2. The respondents registration is suspended for 3 months from today, 3. After the expiry of the suspension the Respondent's registration is to be subject to the following conditions: 1. The conditions on his registration as at 17 December 2014; 2. he must attend meetings of Narcotics Anonymous at least monthly and authorise the Council to confirm the fact of attendance with Narcotics Anonymous; and 3. he must attend group therapy relating to addiction weekly and authorise the Council to confirm the fact of attendance with the group therapy provider; 1. This Tribunal recommends to the Respondent that during the period of the suspension he comply with the conditions imposed by the decision in the proceedings under section 150 of the National Law on 11 June 2013 (including thrice weekly urine drug testing in strict accordance with the Council's protocol). 2. The Respondent must pay the Applicant's costs of or incidental to these proceedings as agreed or assessed. 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: 27 April 2015