Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Spruce [2015] NSWCATOD 89 Hearing dates: 27, 28 May 2015 Decision date: 26 August 2015 Jurisdiction: Occupational Division Before: A Britton, Principal Member J Ludington, Occasional Member B Radcliffe, Occasional Member M Cross, Occasional Member Decision: 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law) the Tribunal decides that if Mr Spruce were still registered it would have cancelled his registration. 2. Pursuant to s 149C(4)(b) of the National Law the Tribunal decides Mr Spruce is disqualified from being registered as a pharmacist for a period of 18 months from the date of this decision. 3. Pursuant to s 149C(4)(c) of the National Law the Tribunal requires the National Board with which Mr Spruce was registered to record the fact that the Tribunal would have cancelled Mr Spruce's registration for a period of 18 months from the date of these orders. 4. The Commission is to file and serve submissions on the question of costs within 14 days of the date of this decision. 5. Mr Spruce is to file and serve any submissions in reply within 14 days of receipt of the Commission's submissions. Catchwords: ADMINISTRATIVE LAW — Civil and Administrative Tribunal (NSW) — health practitioner — whether practitioner guilty of unsatisfactory professional conduct — whether practitioner guilty of professional misconduct — whether practitioner suffers an impairment — whether practitioner is competent to practice — appropriate disciplinary orders where finding made that unregistered practitioner is not competent to practice and is guilty of professional misconduct Legislation Cited: Crimes Act 1900 (NSW) Health Practitioner Regulation National Law (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Hatfield v Health Insurance Commission (1987) 15 FCR 487 Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 King v Health Care Complaints Commission [2011] NSWCA 353 Lee v Health Care Complaints Commission [2012] NSWCA 80 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Sudath v Health Care Complaints Commission [2012] NSWSC 171 Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 Texts Cited: DC Pearce and RS Geddes, Statutory Interpretation in Australia, 8th ed, LexisNexis, 2014 Category: Principal judgment Parties: Health Care Complaints Commission (Appellant) David Spruce (Respondent) Representation: Counsel: V A Hartstein (Applicant) D D'Souza (Respondent) Solicitors: Health Care Complaints Commission ((Applicant) Richard Wise Solicitor (Respondent) File Number(s): 1520009 Publication restriction: NON PUBLICATION ORDER APPLIES IN RESPECT OF CLIENT A REASONS FOR DECISION 1. For 30 years David Spruce owned and operated a local pharmacy in Mudgee, a country town in western NSW. He sold the business in March 2014. Later that year he allowed his registration as a pharmacist, which he had held since 1977, to expire. 2. The Health Care Complaints Commission (the Commission) has referred four complaints about Mr Spruce to the Civil and Administrative Tribunal of New South Wales (NCAT). The trigger for those complaints was an allegation made to the NSW Police by "Client A", which resulted in Mr Spruce being charged with four counts of "indecent assault" (s 61L of the Crimes Act 1900 (NSW)). In March 2014, the Mudgee Local Court dismissed those charges under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and discharged Mr Spruce into the care of a "responsible person". Section 32 permits the presiding magistrate to dismiss charges if it appears that the person charged is (or was at the time of the alleged commission of the offence) suffering from a mental illness, or from a mental condition for which treatment is available in a mental health facility. 3. In July 2014, with Mr Spruce's consent, the Pharmacy Council imposed a condition on Mr Spruce's registration that he not practice as a pharmacist (s 41P of the Health Practitioner Regulation National Law (NSW) (the National Law). The following month, the Council affirmed that decision and referred the matter to the Commission for investigation (s 150D(1) of the National Law). 4. In addition, the Pharmacy Council directed Mr Spruce to undergo an examination by psychiatrist, Dr Anthony Samuels (s 150 of the National Law). Following an assessment conducted in August 2014, Dr Samuels concluded that Mr Spruce suffered from a Mood Disorder, and possibly Epilepsy and Alcohol Abuse. He recommended that Mr Spruce not return to work as a pharmacist until cleared by his general practitioner and psychiatrist. Mr Spruce's participation in these proceedings 1. At a directions hearing on 7 May 2015, Counsel for Mr Spruce informed the Tribunal that Mr Spruce would not be providing any material nor would he be participating further in these proceedings. At Mr Spruce's request, directions were made that a "two-stage hearing" be conducted. That term is used to describe a hearing where the Tribunal first considers whether the complaint(s) is proven and, after giving the parties an opportunity to consider its findings, proceeds to the second stage of the hearing to consider what disciplinary orders, if any, should be made. (See for example, King v Health Care Complaints Commission [2011] NSWCA 353 and Sudath v Health Care Complaints Commission [2012] NSWSC 171.) 2. At the commencement of the substantive hearing to determine the complaints, Counsel for Mr Spruce in a submitting appearance advised us that Mr Spruce no longer sought a two-stage hearing. We therefore proceeded to consider in a single hearing whether the complaints were proven and, if so, the appropriate disciplinary orders. Outline of the Complaints 1. The Commission referred the following four complaints to NCAT: Complaint 1 1. The Commission alleges that on 21 October 2013, Mr Spruce inappropriately touched Client A on two occasions: once in his pharmacy and on the second occasion in her car, which was parked outside the pharmacy. We will return to consider the particulars of that Complaint. 2. The Commission contends that if proven, that conduct demonstrates that Mr was guilty of "unsatisfactory professional conduct" within the meaning of ss 139B(1)(a) and 139B(1)(l) of the National Law: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (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. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. Complaint 2 1. Relying on the particulars of Complaint 1, the Commission alleges that Mr Spruce was guilty of "professional misconduct" under s 139E of the National Law. Section 139E provides: 139E Meaning of "professional misconduct" [NSW] 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. Complaint 3 1. The Commission alleges that Mr Spruce suffers a Mood Disorder, (Bipolar Affective Disorder) and Alcohol Abuse and, as a consequence, an "impairment". Section 5 of the National Law defines "impairment" to mean: [I]in relation to a person, means the 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- (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; … Complaint 4 1. Relying upon Complaint 3 and its particulars, the Commission alleges that Mr Spruce is "not competent to practise pharmacy" within the meaning of s 139(a) of the National Law, which provides: A person is "competent" to practise a health profession only if the person- (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; … What we must decide 1. The key issues we must determine are: 1. Did, as alleged, Mr Spruce inappropriately touch Client A on 21 October 2013 in the manner as particularised in Complaint 1? 2. If so, does that conduct, or part of that conduct, constitute "unsatisfactory professional conduct"? 3. If so, does that conduct, or part of that conduct, constitute "professional misconduct"? 4. Does Mr Spruce suffer a Mood Disorder and /or Alcohol Abuse? 5. If so, do one or both of those conditions, detrimentally affect or, are likely to detrimentally affect, Mr Spruce's capacity to practise pharmacy? 6. If so, does Mr Spruce have sufficient mental capacity, knowledge and skill to practise pharmacy? 7. If the answer to questions 2, 3 and/or 6 is yes, what, if any, disciplinary orders should be made under Part 8, Division 3, subdivision 6 of the National Law? 1. The Commission bears the burden of proving the Complaints, on the balance of probabilities. The evidence necessary in cases such as this, where the allegations, if found proven carry potentially serious consequences, such as the loss of livelihood, was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, by exclusion that is, not "slender and exiguous proofs" (per Rich J at p 350), nor "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at p 362). Complaint 1 1. The Commission relies on the following particulars: 1. On 21 October 2013, at Spruce's Pharmacy (the pharmacy), Mr Spruce inappropriately rubbed Client A's right leg near her buttocks. 2. On 21 October 2013, Mr Spruce followed Client A from the pharmacy, entered her motor vehicle and: 1. inappropriately touched Client A's left breast; 2. inappropriately attempted to kiss Client A's neck; 3. inappropriately placed his hand on Client A's left thigh; 4. inappropriately placed his hand on Client A's vagina outside her underwear. In these reasons we will refer to the allegation set out in paragraph (1) as the "pharmacy incident" and the allegation set out in paragraph (2), as the "car incident", and those allegations collectively as "the subject incidents". Did Mr Spruce admit Complaint 1? 1. The Tribunal is not required to conduct an inquiry into a complaint where the respondent practitioner admits the subject matter of the complaint in writing to the Tribunal (s 165H of the National Law). 2. In a letter to the Commission dated 19 May 2015, solicitors for Mr Spruce stated that Mr Spruce can neither confirm nor deny the contents of the statement given by Client A to the Police about the subject incidents on 21 October 2013. That statement forms the basis of the particulars relied upon by the Commission in respect of Complaint 1. 3. Mr Spruce's letter to the Commission dated 19 May 2015 falls short of the requirements of an admission for the purpose of s 165H of the National Law. Accordingly we must proceed to decide whether the Commission has established on the balance of probabilities that the conduct particularised in Complaint 1, occurred. Did the alleged conduct occur? 1. In a statement given to NSW Police on 21 October 2013, Client A stated that she had met Mr Spruce on two occasions before the subject incidents. She alleged that on the first occasion Mr Spruce kissed her on the cheek and gave her a discount on the items purchased. On the second occasion, she was not charged for the purchase and Mr Spruce gave her a cuddle as she left the pharmacy. She stated that she did not think further about his behaviour and assumed he was just "an over friendly old man". 2. Client A stated that during a visit to the pharmacy on 21 October 2013, she felt her hair being tugged and turned to discover it was Mr Spruce. She claimed that Mr Spruce then started to rub the back of her leg near her buttocks. "It was creeping me out". At the time she was carrying her infant daughter on her hip. 3. Client A claimed she then left the pharmacy and after placing her daughter into a child restraint in the back seat of her car she was approached by Mr Spruce who said "get into the car". She claimed that she took this comment to mean that Mr Spruce did not want anything to do with her. Instead, as she was about to drive off, without invitation Mr Spruce opened the car door, sat in the front passenger's seat and proceeded to: say things like "I dream about you every night. I don't think I can say I love you but I adore you and I want to see your boobs …" stick his fingers down the side of her breast and inside her bra repeatedly ask to see her breasts and question her about the size of her nipples try to kiss her at least five times grab her neck and pull her towards him ask to see her "undies" try to push up her dress put his hands on the outside of her underwear near "the vagina area". 1. She stated that throughout the incident she: said "don't, you're married", "… this is not right", "we can't, don't it's not going to happen", "get out" tried to pull away and kept pushing him away was in shock felt "violated and yuck". 1. Client A also claimed that during this incident an elderly man recognised and approached Mr Spruce and spoke to him through the window of her car. She stated that when Mr Spruce asked her to visit him at the pharmacy the following day, she readily agreed in order to bring the ordeal to an end and to get him out of the car. She then drove "straight off". On the advice of her partner she reported the incident to the Police. 2. Police interviewed Mr Spruce the following day. The record of that interview recorded Mr Spruce as saying: he doesn't have "much memory" he is being medicated for "Bipolar II and a left temporal lobe epilepsy" when he suffers a "seizure" he undergoes a complete personality change and suffers amnesia he forgot to take his tablets three days in a row, prior to the subject incidents his wife said she thought he might have had "an episode" on the day of the subject incidents on that day, he saw Client A at the pharmacy and said "hallo" he had no recollection of tugging Client's A hair or rubbing her leg he recalled Client's A car being parked "a few doors up from the pharmacy", but could not recall being in a car with her. 1. The police also took a statement from an elderly man who was a client of the pharmacy and a friend of Mr Spruce. The elderly man told police that on the day of the subject incidents he saw Mr Spruce sitting in the front passenger seat of a car with a young lady. He said he didn't pay much attention but he noticed the lady's hand was placed on Mr Spruce's hand and he appeared to be consoling her. Mr Spruce's account of the incident 1. At the request of his solicitors, Mr Spruce was assessed by psychiatrist, Dr Bruce Westmore. In a report dated 30 November 2013, Dr Westmore recorded Mr Spruce's account of the subject incidents: he had "bits of memories not much" of the day he recalled asking Client A to get into the car to talk to her "God knows why" the next thing he recalled was seeing his wife walking back from where he should have been (presumably from their car) he also recalled his wife laughing at him after being told by an elderly customer that he saw Mr Spruce sitting in a car talking to a young attractive blonde. 1. As noted, Mr Spruce was assessed by psychiatrist Anthony Samuels. In a report dated 29 August 2014, Dr Samuels recorded the account Mr Spruce gave about the subject incidents: he did not remember the events that led to him being charged with indecent assault he had missed five lots of tablets prior to the day of the assault his wife told him he was "manic" on the day of the alleged assault a new pharmacy had just opened in town and he was in a state of excitement. Findings and conclusions 1. Mr Spruce neither admits nor denies the alleged assault on Client A. When interviewed by Police he admitted he knew Client A, but claimed to have no recollection of being in a car with, or touching Client A on the buttocks. When assessed by Dr Westmore three months later he said he recalled asking Client A to get into a car with him but not much else. The following year he told Dr Samuels, he had no recollection of the alleged incident. 2. While the elderly customer saw nothing untoward about the incident, his statement corroborates Client A's claim that on the day of the subject incidents she and Mr Spruce were seated in the front seat of her car. 3. The detailed account given by Client A to Police following the subject incidents is unsupported but nonetheless uncontradicted. She reported the incident almost immediately to her partner and the Police. Mr Spruce did not challenge Client A's account or require her for cross-examination. Nor has it been suggested that Client A made a false allegation, or had a tendency to do so. 4. We are satisfied, on balance, that Mr Spruce assaulted Client A in the manner particularised in Complaint 1. Is Mr Spruce guilty of "unsatisfactory professional conduct"? 1. The Commission contends that the pharmacy and car incidents each constitute "unsatisfactory professional conduct" within the meaning of s 139B(1)(l) of the National Law. 2. In written submissions made to the Commission in July 2014, solicitors for Mr Spruce addressed whether the offending conduct constitutes unsatisfactory professional conduct and professional misconduct. While it is not clear whether Mr Spruce continues to rely on those submissions, in fairness to him we have taken them into account. 3. To constitute "unsatisfactory professional conduct" within the meaning of s 139(1)(l) the offending conduct must (i) be improper or unethical and (ii) relate to the practice of the practitioner's profession. Was the conduct "improper"? 1. The word "improper" is not defined by the National Law. It is an ordinary English word. The Macquarie Dictionary offers a number of definitions, which include: … 2. not in accordance with propriety of behaviour, manners, etc.: improper conduct. … 1. In the context in which it appears, the word "improper" denotes conduct which is not in accordance with accepted standards of professional conduct. 2. During the car incident Mr Spruce repeatedly touched Client A's breasts, underpants and bra, and continued despite her pleas that he stop. Throughout the incident he repeatedly made lewd comments. Unsurprisingly, Client A said she felt violated and overpowered. 3. While objectively less serious in nature, the conduct involved in the pharmacy incident was also unwelcome, uninvited and of a sexual nature. 4. In our opinion, Mr Spruce's conduct in respect of both incidents was not in accordance with accepted standards of conduct within society at large and the profession of pharmacy in particular. Even if, as argued by Mr Spruce's lawyers, there was a "real possibility" that at the time Mr Spruce was suffering a Complex Partial seizure and he was, in effect, acting as an autonoman, the conduct was nonetheless improper. Whether the conduct was deliberate and conscious might be relevant to the exercise of the power to make disciplinary orders, but not to an evaluation of its propriety or nature. Did the conduct "relate to" the practice of the profession of pharmacy? 1. In submissions to the Commission, solicitors for Mr Spruce contended that the impugned conduct did not constitute "unsatisfactory professional conduct", pointing out that it occurred on a day he was not rostered to work. 2. DC Pearce and RS Geddes in Statutory Interpretation in Australia 8th ed, LexisNexis, 2014 at [12.7], note that phrases such "related to" are generally interpreted to signify some connection between one subject matter and another. In Hatfield v Health Insurance Commission (1987) 15 FCR 487; 77 ALR 103 at 491, Justice Davies observed that while such expressions may have "a very wide operation", they: [D]o not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear. (See also Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510, per French CJ and Hayne J at [25].) 1. Not all conduct by a health practitioner constitutes conduct "relating to" the practice of the practitioner's profession. For example, conduct undertaken in a personal and domestic capacity will generally lack the necessary connection with the practitioner's profession. While, as pointed out for Mr Spruce, the offending conduct occurred on a day he was not rostered to work, it nonetheless occurred in, or just outside the pharmacy he owned and operated, and where he practiced. Client A was a client of the pharmacy and her only dealings with Mr Spruce had been through the client/practitioner relationship. 2. We find, Mr Spruce's conduct in respect of both incidents "relates to" his practice of pharmacy. Conclusion 1. Mr Spruce's conduct in relation to both the pharmacy and the car incident satisfies both limbs of s 139(1)(l). It follows that the conduct in each instance constitutes unsatisfactory professional conduct. Is Mr Spruce guilty of "professional misconduct"? 1. "Professional misconduct" is defined to include "unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration": s 139E(1)(a) of the National Law (emphasis added). 2. In evaluating whether the offending conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances which bear on the objective assessment of that conduct must be taken into account. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. The gravity of the impugned conduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. 3. Mr Spruce's conduct in relation to the car incident while not at the high end of the scale in terms of seriousness was nonetheless in our view "sufficiently serious" to warrant suspension. It follows that Mr Spruce is guilty of professional misconduct within the meaning of s 139E(1)(a) of the National Law. 4. On the other hand, while reprehensible, Mr Spruce's conduct in relation to the pharmacy incident, in our opinion, was not sufficiently serious to justify either suspension or cancellation, even if it is aggregated with the conduct in relation to the car incident. Accordingly, that conduct does not constitute professional misconduct. Does Mr Spruce suffer from a Mood disorder and/or Alcohol Abuse? History of Alcohol Abuse 1. Material produced to the Tribunal by NSW Police, reveals a long history of alcohol-related incidents involving Mr Spruce. These include: Four occasions when Mr Spruce with charged with driving with more than the prescribed content of alcohol, most recently in September 2014. On that occasion testing revealed a high range alcohol reading. Numerous reports to police of domestic violence involving Mr Spruce. In most cases, police recorded that Mr Spruce was intoxicated. History of alcohol use after the subject incidents 1. In November 2013, Mr Spruce told Dr Westmore that he had recently reduced his alcohol consumption. He said that before that he had been drinking two to three scotches and half a bottle of wine a day. Based on that history, Dr Westmore concluded that Mr Spruce suffered from Alcohol Abuse but the condition was in remission. 2. In April 2014 Mr Spruce was referred by his general practitioner to the St John of God hospital for treatment of Alcohol Abuse and Bipolar Disorder. On admission Mr Spruce disclosed he was drinking two bottles of wine and half a bottle of whisky, a day. On discharge three weeks later, he was prescribed Baclofen, a drug used to reduce alcohol cravings. 3. On 10 June 2014, Mr Spruce's GP recorded that Mr Spruce was "Still drinking, feels not excessively". On 16 September 2014 the GP recorded, "Still drinking to celebrate – further DUI … glossed over this". 4. In a letter to Mr Spruce's GP dated 20 December 2014, psychologist Alison Nipperess wrote that despite making small gains earlier in the year, Mr Spruce continued to drink to excess and this significantly reduced the effectiveness of his psychological treatment. She advised that during her last consultation with Mr Spruce, he was in a manic state, smelt of alcohol and repeatedly made sexually inappropriate comments despite being asked to desist. She informed the GP she was no longer prepared to treat Mr Spruce and recommended that he be referred to another psychologist or, preferably, in-patient treatment. 5. In August 2014, Mr Spruce told Dr Samuels he had stopped drinking. In May the following year he told Dr Samuels he was drinking one and a half bottles of alcohol each day. Does Mr Spruce currently suffer from Alcohol Abuse? 1. Mr Spruce neither admits nor denies that he suffers from Alcohol Abuse. There is some evidence that since the subject incidents Mr Spruce has attempted to moderate his alcohol use, most notably while an in-patient at St John of God hospital. However, the evidence indicates that these attempts were short-lived. There is no evidence to indicate Mr Spruce is currently receiving, or plans to receive, treatment for his condition. In our opinion there can be little doubt that Mr Spruce continues to suffer from Alcohol Abuse. Does Mr Spruce suffer from a Mood Disorder? 1. Mr Spruce admits to suffering a Mood Disorder. It is nonetheless necessary to consider the available material as it is relevant to the question of whether that disorder affects Mr Spruce's capacity to practice. 2. Over the past 15 years Mr Spruce has reported a range of symptoms including anxiety, occasional amnesia and manic, often violent, behaviour. During this period he has been referred to numerous specialists who have struggled to identify the cause of that behaviour. 3. In July 2007, neurologist Dr Simon Hammond diagnosed Mr Spruce as suffering from "Temporal Lobe Epilepsy". In a report dated 19 August 2008, Mr Spruce's (then) treating psychiatrist, Dr Andrew Robertson, explained: [Complex Partial Seizures (previously known as Temporal Lobe Epilepsy)] can take a variety of forms, but will commonly consist of episodes of abnormal behaviour which is out of character, and which is followed by a deep sleep and subsequent amnesia for the episode. … In the course of a complex partial seizure, the patient has no control over his behaviour hence the term automatisms. He is in sense, on "automatic pilot". 1. When prescribed the anti-convulsant drug, Epilim®, in 2007, Mr Spruce reported feeling "amazingly better" almost immediately. 2. Neither Dr Westmore nor Dr Samuels, are convinced that Mr Spruce suffers from epilepsy although both believe he suffers from a Bipolar Mood disorder. In a report dated 30 November 2013, Dr Westmore noted the divergence of opinion on the question of diagnosis, observing that over the past decade some medical specialists concluded Mr Spruce suffered from a neurological condition, while others believed he suffered from a psychiatric condition. In Dr Westmore's opinion, Mr Spruce's positive response to the "mood stabilising/anti-epileptic" drug Epilim®, did not allow him to exclude or differentiate between a primary psychiatric or a primary neurological condition, as both epilepsy and Bipolar Affective disorders respond positively to Epilim®. In his opinion, Mr Spruce probably suffered from a psychiatric condition and made a provisional diagnosis of a Bipolar Type II disorder. That diagnosis in his opinion, however, would not explain Mr Spruce's reported episodes of amnesia, which he thought might be attributable to a neurological event: "Transient Global Amnesia". 3. Dr Samuels shares Dr Westmore's misgivings about the diagnosis of epilepsy. In his opinion, the complex behaviours displayed by Mr Spruce are not typical of temporal lobe epilepsy. In his view, if indeed Mr Spruce had suffered any "true seizure activity", it was most likely the result of Alcohol Abuse rather than a discrete epileptic condition. 4. When he first saw Mr Spruce in August 2014, Dr Samuels concluded that while Mr Spruce probably suffered from Bipolar Disorder I, the condition was probably in remission. On seeing Mr Spruce in May 2015, he revised that opinion, noting on that occasion that Mr Spruce appeared "quite depressed", in marked contrast with his appearance in August 2014 of "elevated in mood state and hypomanic". Findings and conclusions 1. Consistent his own admission and the weight of medical opinion, we are satisfied that Mr Spruce currently suffers from a Mood Disorder. Do Mr Spruce's Alcohol Abuse and Mood Disorder separately or in combination, detrimentally affect or are likely to detrimentally affect, Mr Spruce's capacity to practise pharmacy? 1. According to Dr Samuels, as a consequence of Alcohol Abuse and Mood Disorder, Mr Spruce currently lacks the mental capacity to practise pharmacy. He believes Mr Spruce's excessive alcohol consumption exacerbates his "mood instability" and lessens the likelihood that he will comply with any recommended treatment for his Mood Disorder. 2. Dr Samuels believes that during those periods when Mr Spruce suffers significant depression, which he explains is a feature of his Mood Disorder, his ability to concentrate and to interact effectively with customers and staff is likely to be adversely affected. In his opinion, during periods of elevated mood, Mr Spruce has a tendency to be sexually disinhibited, and this is "part and parcel of [Mr Spruce's] mania". In support, Dr Samuels cites the following examples: the inappropriate comments of a sexual nature made by Mr Spruce to female members of his own staff in August 2014 the decision by Mr Spruce's treating psychologist, Ms Nipperess, to refuse to continue to treat Mr Spruce because of his refusal to refrain from making sexually inappropriate comments during treatment sessions Mr Spruce's conduct on the day of the subject incidents where he was reported as being in a state of elevated mood. 1. Dr Samuels also believes that as a result of prolonged excessive alcohol use, Mr Spruce probably suffers from "alcohol dementia". Findings and conclusions 1. It falls to the Commission to establish that Mr Spruce's Mood Disorder and/or Alcohol Abuse detrimentally affects, or is likely to detrimentally affect, Mr Spruce's capacity to practise pharmacy. It is trite to observe that a psychiatric disorder, even a severe form, will not necessarily adversely affect a health practitioner's capacity to practice their profession. Whether a condition has, or is likely to have, a detrimental effect on a practitioner's capacity requires consideration of: the nature of the relevant condition; whether the symptoms or manifestations of that condition have, or are likely to have, a detrimental impact on the practitioner's capacity to practice; whether the condition is being, or is able to be, treated; the effectiveness of any prescribed or proposed treatment and, the likelihood that the practitioner will comply with any treatment regime. In addition, the nature of the tasks and responsibilities of, and the skills and expertise required to undertake, the role must be taken into account. 2. Apart from the subject incidents, Mr Spruce has not been the subject of any professional disciplinary proceedings. Nor is there any reliable evidence of any complaint or allegation having been made about him during his 30 years in practice. 3. Nonetheless, the available medical evidence, in particular Dr Samuels' opinion, indicates that Mr Spruce's Mood Disorder and Alcohol Abuse currently have a detrimental effect on his capacity to practise and this is likely to continue while his current pattern of alcohol use continues. 4. Dr Westmore did not provide an opinion on Mr Spruce's capacity to practice. When he assessed Mr Spruce, he accepted Mr Spruce's self-report that he had stopped drinking and concluded that the Alcohol Abuse was in remission. 5. We are satisfied, on balance, that Mr Spruce's Mood Disorder and Alcohol Abuse separately and in combination, are likely to detrimentally affect his capacity to practise. Is Mr Spruce competent to practise pharmacy? 1. Dr Samuels is of the opinion that currently Mr Spruce does not have sufficient mental capacity to practise pharmacy. That opinion is reasoned and plausible and is accepted by us. What if any, disciplinary orders should be made? 1. The Commission seeks orders under s 149C(4) of the National Law, the effect of which would be to disqualify Mr Spruce from being registered as a pharmacist for a period of two or three years. Mr Spruce elected not to comment on the Commission's proposed orders. 2. Headed "Disciplinary Powers of Tribunals" Part 8, Division 3, Sub Division 6 of the National Law sets out the disciplinary powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and impose conditions on the practitioner's registration. Where a finding is made that the practitioner is guilty of professional misconduct, or, is not competent to practise their profession, one of the orders available to the Tribunal is to cancel or suspend the practitioner's registration. Where, as in this case the person is no longer registered, the Tribunal may: 149C Tribunal may suspend or cancel registration in certain cases [NSW] … (4) If the person is no longer registered, the Tribunal may- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. 1. The Tribunal is directed that in the exercise of its functions under the National Law, the protection of the health and safety of the public must be the paramount consideration: s 3A of the National Law. 2. The principles underlying the purpose of orders made under Part 8, Division 3, Sub Division 6 were usefully summarised by Wright J in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88]: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper 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] NSWSC 297; (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. What is the appropriate disciplinary order given our finding that Mr Spruce is not competent to practise pharmacy? 1. Formulating appropriate orders in this case is not an easy task given the little information available about Mr Spruce's current circumstances. What is known is that Mr Spruce is no longer registered to practice and, on the sale of his pharmacy, gave the purchaser an undertaking that he would not practise within a five kilometre radius of Mudgee until March 2019. 2. If we could be confident that Mr Spruce had no intention of returning to practise, arguably the orders sought by the Commission might be seen as excessive and disproportionate. In the absence of clear evidence that Mr Spruce does not intend to return to practise as a pharmacist, we agree with the Commission's submission that it is appropriate that we make orders under s 149C(4), that we would have cancelled Mr Spruce's registration had he been registered. We also consider it appropriate that he be disqualified from being registered for a minimum period. 3. The only evidence before us about if, or when, Mr Spruce is likely to regain sufficient mental capacity to practise, is that given by Dr Samuels. In his opinion, while ever Mr Spruce continues his current pattern of alcohol use, he will lack the mental capacity to practise pharmacy. He believes that Mr Spruce would need to abstain from alcohol for at least 12 months before his brain could recover from the effects of long-term alcohol abuse. In Dr Samuel's opinion it may be that there is already some permanent damage. According to Dr Samuels, it will not be possible to assess whether Mr Spruce suffers any permanent damage until he has been alcohol-free for a significant period, at least 18 months. In addition, Dr Samuels believes that until such time as Mr Spruce has abstained from alcohol use for a significant period any treatment he receives for his Mood Disorder will be sub-optimal. 4. As acknowledged by Dr Samuels, until neurological testing is conducted it is purely speculative whether Mr Spruce has permanent neurological damage. We accept, however, that such testing could not be conducted until Mr Spruce has been alcohol-free for at least 18 months. 5. Sadly, it may be that, Mr Spruce will never be able to break the grip alcohol currently holds on his life. If that is the case, it is unlikely he will ever regain sufficient mental capacity to practise. However, in our opinion, to extend the disqualification period beyond the period necessary to allow his brain to recover and for his Mood Disorder to be treated — assuming in that period he is able to address his problems with alcohol — is unnecessarily punitive and not required to protect the health and safety of the public. 6. For these reasons, we have decided to disqualify Mr Spruce from practice for 18 months. If he elects to apply for re-registration after that period he will need of course to satisfy the relevant admission body that he has the mental capacity to practise. What is the appropriate disciplinary order given our finding that Mr Spruce is guilty of professional misconduct? 1. Our finding that the impugned conduct in relation to the car incident is "sufficiently serious" to justify suspension or cancellation does not mandate that orders be made to suspend or cancel Mr Spruce's registration. See Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 per Basten J at [67]. While undoubtedly serious, the conduct was nonetheless a one-off occurrence. In the exercise of our disciplinary powers the protection of the public is the paramount consideration. Nonetheless any order made must be commensurate with the seriousness of the subject conduct. In our opinion, having regard to the nature and frequency of the conduct the appropriate order would be to suspend, or more correctly to decide that if Mr Spruce had been registered, we would have suspended his registration. However given our decision set out above, to disqualify Mr Spruce from practice for a period of 18 months, there is no utility in also making an order that, had he been registered, we would have suspended Mr Spruce's registration. Costs 1. The Commission seeks an order for costs. It submits that there are no reasons to depart from the usual compensatory rule as to costs. Mr Spruce request he be given an opportunity to be heard on the issue of costs and we have decided to grant that request. The parties are invited to make brief written submissions in accordance with the following timetable: 1. The Commission is to file and serve submissions on the question of costs within 14 days of the date of this decision. 2. Mr Spruce is to file and serve any submissions in reply within 14 days of receipt of the Commission's submissions. Orders 1. Pursuant to s 149C(4)(a) of the National Law the Tribunal decides that if Mr Spruce were still registered it would have cancelled his registration. 2. Pursuant to s149C(4)(b) of the National Law the Tribunal decides Mr Spruce is disqualified from being registered as a pharmacist for a period of 18 months from the date of this decision. 3. Pursuant to s149C(4)(c) of the National Law the Tribunal requires the National Board with which Mr Spruce was registered to record the fact that the Tribunal would have cancelled Mr Spruce's registration for a period of 18 months from the date of these orders. 4. The Commission is to file and serve submissions on the question of costs within 14 days of the date of this decision. 5. Mr Spruce is to file and serve any submissions in reply within 14 days of receipt of the Commission's submissions. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2015