Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Sun [2016] NSWCATOD 80 Hearing dates: 1, 2 and 3 June 2016 Date of orders: 22 June 2016 Decision date: 22 June 2016 Jurisdiction: Occupational Division Before: Marks ADCJ, Principal Member Dr M Cox, Professional Member Dr E O'Brien, Professional Member Dr C. Berglund, General Member Decision: 1. The registration of the respondent as a medical practitioner is cancelled pursuant to the provisions of section 149C of the National Law 2. Pursuant to section 149C(7) of the National Law a period of 3 years is fixed before the respondent may apply for a review 3. The respondent is to pay the costs of the complainant in an amount assessed in default of agreement. Catchwords: MEDICAL PRACTITIONER - drug dependent and impaired - breach of practice conditions caused by drug dependency - registration cancelled. Legislation Cited: Health Practitioner Regulation National Law, ss 139B, 139E, 149C Evidence Act, 1995 (NSW), s128 Cases Cited: Reimers v Health Care Complaints Commission [2012] NSWCA 317 Health Care Complaints Commission v Mitchell [2015] NSWCATOD 151 Health Care Complaints Commission v Do [2014) NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Young Hoon Sun (Respondent) Representation: Counsel: W Hunt (Complainant) Solicitors: Health Care Complaints Commission (Complainant) Young Hoon Sun (Respondent in person) File Number(s): 1420315, 1520109 REASONS FOR DECISION Introduction 1. These proceedings are constituted by a Notice of Complaint and a second Amended Notice of Complaint. The respondent was self represented. He admitted in writing that he was guilty of all of the complaints made against him and the particulars of those complaints. Both Complaints were heard concurrently, and evidence in one became evidence in the other. Before setting out each of the Notices of Complaint, it is helpful to refer to some background information based on documentary evidence tendered during the course of the hearing. 2. The respondent was born in October 1971 in South Korea. He emigrated to Australia with his family in 1987, and commenced his schooling in high school in year 10, knowing no English. He attained his HSC with such distinction that he was entitled to be admitted to university to study medicine. He graduated in medicine from Sydney University in 1998 and, after a period of conditional registration, was registered as a medical practitioner in 1999. The respondent returned to University in 2000 and commenced studying dentistry whilst working as a medical practitioner in the hospital system. He graduated in dentistry in 2003 and gained a Fellowship of the Royal Australasian College of Dental Surgeons (Oral and Maxillofacial Surgery) with the Royal Australasian College of Dental Surgeons in December 2007. Thereafter, he practised as an oral and maxillofacial surgeon. 3. In about March 2010 whilst the respondent was working at a number of surgeries, his older brother died in tragic circumstances and his death had a profound effect on him. The respondent took two months off work and whilst associating with persons whom he appears to have met at a hotel, he tried recreational drugs for the first time. After returning to work, the respondent came to the attention of a dental clinic when he asked for a Valium tablet for his own personal use. Later, a bag containing a white powder was found in one of the surgeries which the respondent had previously used. The respondent denied any knowledge of this item. In August 2010, a further two bags of similar appearance were found in the clinic after the respondent had been practising there. One was full and the other contained a residue of white powder. The packets were handed to the police because it was suspected that they contained methamphetamine. The respondent declined to consent to a random saliva drug test and terminated his agreement with the dental group. 4. The matter was reported to the Dental Council, which arranged for the respondent to be assessed by a psychiatrist. A copy of the resultant report was forwarded to the Medical Council of NSW and both Councils convened an Impaired Registrants Panel on 5 May 2011. These proceedings are concerned only with the respondent's practice as a medical practitioner, and the narration that follows is confined accordingly. 5. Practice conditions were imposed on the respondent's registration on 10 August 2011 and these remained in place until 16 March 2012. In summary, the respondent was required to undertake mentoring, to undertake certain treatment, to comply with any treatment regime, not to prescribe for self-medication, not to self-administer any drug of addiction, not to take any drug of addiction without informing the Council and to attend for thrice weekly urine drug testing. Difficulties arose concerning the compliance with these conditions, and especially the requirement of regular urine drug testing. New practice conditions were imposed by the Medical Council with effect from 12 July 2013. They were in similar terms with an additional requirement that the respondent attend for hair drug testing for amphetamine and methamphetamine. The respondent encountered further difficulties, and certain irregularities came to the attention of the Medical Council. After due enquiry, the respondent's registration was suspended on 16 September 2014 and his circumstances were referred to the complainant for investigation. Those investigations have given rise to the several complaints which are the subject of these dual proceedings. 6. We now set out each of the Notices of Complaint as amended: NCAT Ref 1420315 (The 1st notice of Complaint) The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr Young Hoon Sun ("the practitioner") of Suite 20, Level 2, 650 George Street Sydney NSW 2000 being a medical practitioner under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B1(a)&(l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the judgment possessed 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. PARTICULARS OF COMPLAINT ONE 1. The practitioner consumed the illegal street drug "ice" (methyl amphetamine) on or around 3 October 2011. 2. The practitioner provided misleading, incomplete, inconsistent and/or untruthful information to the Medical Council of New South Wales ("the Council") and/or Council appointed psychiatrists about his consumption of "ice" referred to in particular 1 above, as follows: a) during a telephone call on 19 October 2011 with the Monitoring Officer at the Council, b) in a statement dated 7 November 2011 provided to the Council, c) during an interview on 16 November 2011 with Dr Giuffrida, d) during an interview on 24 November 2011 with delegates of the Council, e) during an interview on 16 March 2012 with Dr Pethebridge. 1. In around April or May 2012 the practitioner prepared or caused to be prepared and/or came into possession of two fabricated boarding passes purportedly issued to the practitioner by Virgin Australia and dated 15 April 2012 and 13 May 2012 respectively. 2. On or around 31 May 2012 the practitioner emailed or caused to be emailed an electronic copy of the fabricated boarding passes referred to in particular 1 above, to the Council with the intention of deliberately misleading the Council as to his whereabouts on those dates. 3. On 5, 6 and 11 October 2012 the practitioner treated patients in his surgery during a period when the practitioner was not undergoing thrice-weekly urine drug testing. The Council had suspended the requirement that the practitioner undergo urine drug testing during this period, on the basis of the practitioner's advice that he would be on holidays interstate during this period. 4. In around October 2012 or on 1 November 2012 the practitioner prepared or caused to be prepared and/or came into possession of two fabricated boarding passes purportedly issued to the practitioner by Virgin Australia and dated 31 September 2012 and 18 October 2012 respectively. 5. On or around 1 November 2012 the practitioner emailed or caused to be emailed an electronic copy of the fabricated boarding passes referred to in particular 3 above to the Council with the intention of deliberately misleading the Council as to his whereabouts on those dates. 6. In or around April 2013 the practitioner arranged for a third party to request, and thereby obtained, a receipt relating to purchases made in around April 2013 from Leisure Coast Bait & Tackle, Corrimal NSW. The practitioner or a third party altered the date on the receipt to 12 October. 7. In or around April 2013 the practitioner arranged for a third party to request, and thereby obtained a backdated receipt relating to a purchase made in around April 2013 from See Side Optical, Thirroul NSW. The sales person at See Side Optical backdated the receipt to 10 October 2012. 8. On 24 April 2013 the practitioner provided to the Health Care Complaints Commission through his legal representatives the two receipts referred to particulars 8 and 9 above, knowing them to be false and/or misleading with respect to the purported purchase dates, contrary to the provisions of section 99 of the Health Care Complaints Act 1993. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B1(c) of the National Law in that the practitioner has contravened conditions to which his registration was subject. PARTICULARS OF COMPLAINT TWO 1. The practitioner failed to attend for thrice-weekly Urine Drug Testing in strict accordance with the Council's protocol, in contravention of health conditions in that: a) On 10 May 2013 the practitioner failed to provide a urine sample as required; b) On 13 15 May 2013 the practitioner provided a diluted urine sample. 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 PARTICULARS OF COMPLAINT THREE 1. Complaints 1 and 2 and the particulars thereof are repeated and relied upon both individually and cumulatively. NCAT Ref 1520109 (The 2nd Notice of Complaint as amended) The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr Young Hoon Sun ("the practitioner") of Primecos Unit 20 2nd Floor, 650 George Street SYDNEY NSW 2000 being a medical practitioner registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: i. Engaged in conduct that demonstrates the 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 related to the practice of medicine PARTICULARS OF COMPLAINT ONE 1. The practitioner provided misleading, inconsistent and/or untruthful information to the Medical Council of New South Wales ("the Council") about his inability to attend a PaLMS collection facility for Urine Drug Testing ("UDT") on Friday 16 May 2014 in an email to the Council's Monitoring Officer, Ms Amy Newton, dated 27 May 2014. 2. The practitioner provided misleading, inconsistent and/or untruthful information to the Medical Council of New South Wales ("the Council") about his inability to attend a PaLMS collection facility for UDT on Friday 14 August 2014 Wednesday, 13 August 2014 in an email to the Council's Monitoring Officer, Ms Amy Newton, dated 16 14 August 2014. 3. On 11 February 2014 the practitioner provided misleading, inconsistent and/or untruthful information to the Council-appointed Psychiatrist, Dr Petherbridge, in that that he told Dr Petherbridge that he had attended two mentoring sessions when in fact he had not attended any mentoring sessions. 4. On or after 21 28 April 2014 until his registration was suspended on 16 September 2014, the practitioner failed to advise the Council notify the National Board that on 21 April 2014 he was arrested and charged by NSW Police with possession and supply of a prohibited drug (methyl amphetamine). 5. The practitioner presented or procured another person to present a forged or altered drivers licence (NSW licence number 11551379 – expiry 8/1/15) to collection staff at PaLMS Hornsby as identification for UDT on 4 August 2014 and 8 August 2014. 6. On at least one occasion prior to 4 August 2014, the practitioner presented or procured another person to present a forged or altered drivers licence (Queensland licence number 34418348 – effective 5/5/11, expiry 5/516) to collection staff at PaLMS Hornsby as identification for UDT. 7. The practitioner provided misleading, inconsistent and/or untruthful information to Council delegates at a hearing convened under s150 of the National Law on 16 September 2014 about the number and types of driving licences he had held, his compliance with UDT and the nature and extent of his illegal drug use. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: i. Contravened conditions to which his registration was subject; and/or ii. Engaged in improper or unethical conduct related to the practice of medicine. PARTICULARS OF COMPLAINT TWO 1. The practitioner failed to attend for thrice weekly UDT in strict accordance with the Council's protocol, in contravention of Health Condition 8 on his registration in that he: a) failed to immediately notify the Council of his absence from UDT on 27 December 2013, b) failed to sign the chain of custody form for the urine samples he provided to PaLMS on 16 October 2013 and 30 May 2014, c) provided a dilute urine sample to PaLMS on 20 January 2014 d) failed to notify the Council immediately of his absence from UDT on 7, 9 and 12 May 2014, and failed to provide a satisfactory explanation for these missed tests, e) failed to attend a PaLMS collection facility for UDT on 16 May 2014, f) provided a urine sample at Hornsby Hospital Emergency Department on 16 May 2014 that was unable to be tested in accordance with the Council's UDT protocols because the specimen seal was not intact, g) failed to attend for UDT on 11 June 2014, h) failed to attend a PaLMS collection facility for UDT on 13 August 2014 i) provided a urine sample at Hornsby Hospital Emergency Department on 13 August 2014 that was unable to be tested in accordance with the Council's UDT protocols because there was no security seal attached to the specimen, j) failed to pay PaLMs accounts for UDT resulting in the results for the following dates being withheld: 30 August 2013; 4, 6, 9 & 11 September 2013; 24 & 26 February 2014; 23 June 2014 and 8 August 2014. 2. Between 12 July 2013 and 16 September 2014 the practitioner failed to attend for treatment by a psychiatrist of his choice at the frequency to determined by his psychiatrist (monthly), in contravention of Health Condition 3 on his registration. 3. Between 16 December 2013 and 16 September 2014 the practitioner failed to attend monthly meetings with a Sydney based mentor, in contravention of Practice Condition 2 on his registration. 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 PARTICULARS OF COMPLAINT THREE 1. Complaints One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively. The evidentiary material re the First Notice of Complaint 1. The complainant tendered into evidence an extensive volume of documentary material, which supported the allegations contained in the several complaints and the particulars upon which proof was based. During the course of the hearing, Counsel for the complainant referred us to so much of this material as was necessary to sustain each particular of each complaint. This process was undertaken to enable us to understand the nature and extent of the misconduct alleged against the respondent, so that he could respond to it and to enable us to appreciate the import of this evidence in the context of these proceedings. As we have said, the respondent had formally admitted that he was guilty of each of the complaints as particularised. Accordingly, it is only necessary that we make brief observations concerning this material. We should add that the respondent gave oral evidence. 2. The respondent has conceded that he consumed methyl-amphetamine on or around 3 October 2011 contrary to the practice conditions then imposed on his registration. He lied about this consumption as set out in particular 2 of Complaint One. 3. The remaining particulars 3 to 10 demonstrate that the respondent was prepared to lie, and to go to great lengths to create false documentation concerning his whereabouts in order to avoid having to undergo thrice – weekly urine drug testing and to mislead the Council accordingly. 4. With respect to particular 1 of Complaint Two, the respondent said firstly that, although he had failed to provide a urine sample on 10 May 2013 because he was unable to leave his practice at the time, he did attend the following day with a urine sample and this is corroborated in the evidence. The date of 13 May 2013 was amended to 15 May 2013. The respondent said that he was unable to explain why his urine would have been diluted other than that he may have drunk some water before the sample was taken. He was never told that he should not drink water before giving a sample. 5. We note for completeness that the particulars relied upon in connection with complaint Three are identical to those which apply to the two earlier complaints. The evidentiary material with respect to the Second Notice of Complaint 1. The same evidentiary process was followed as applied the first notice of Complaint. 2. The particulars of Complaint One cover the period from May 2014 to September 2014. All of these particulars were conceded by the respondent. He did, however, in the course of cross-examination, provide some valuable insight as to the circumstances surrounding these matters. The respondent made a number of admissions which we shall summarise, but we should stress that the evidence which he gave with respect to these matters and with respect to the other matters contained within the Amended Notice of Complaint are the subject of a Certificate given under section 128 of the Evidence Act, 1995 (NSW). 3. In general terms, the respondent conceded that he had proffered a number of false excuses for his failure to attend for urine drug testing because he was taking methamphetamines from time to time during this period in order to assist him in dealing with the stressful circumstances which he was then experiencing. He was concerned that if he attended for urine drug testing there would be a positive result. In general terms, the respondent conceded that he was guilty of all of the particulars referable to his failure to attend for urine drug testing, save that he did not at any stage connive at producing a diluted sample. 4. The respondent conceded that he had failed to notify the National Board of the police charges because he was unaware that he was required to do so, and the lawyer who was then representing him had not advised him that he should do so. 5. With respect to particular 7, the respondent asserted that, although he had been untruthful to the Council delegates at the commencement of the hearing, he had in fact been much more truthful as the hearing progressed. We agree and the complainant conceded that the respondent's misconduct at the commencement of the hearing was ameliorated by his later changed attitude. 6. The respondent's evidence concerning the various matters referred to in particular 8 of Complaint Two included an admission that the failures to attend for urine drug testing generally were brought about by his concern that there would be a positive result because he was continuing to take methamphetamines. In the period 7 to 14 May 2014, the respondent said that he was having difficulties dealing with the liquidator of his business and had been locked out of his premises. He had already been charged by the police, was not working that week and was under considerable pressure. In addition, the respondent had injured his leg and was immobilised to some extent. During the course of cross-examination the respondent conceded that the problems that he was encountering with respect to his leg were used by him as an excuse for not attending for urine drug testing, thus permitting him to use drugs during this period. 7. With respect to particular 8(g), the respondent said that the facility was not open on 11 June 2014, and he did not tell the Council this because he assumed that the Council would have been aware that this was a public holiday. We do not regard this as a serious matter. The respondent had undergone drug testing on 10, 12, and 13 June so, in this instance, there does not seem to have been a risk to the public as a result of the non-compliance. The respondent's pattern of less than strict compliance with health conditions at the time was, however, a marker of his poor insight into the protective nature of his health conditions. 8. With respect to particular 8(j), the respondent acknowledged that he was late in payment, but once payment had been made the results were released, and they were all negative. 9. The respondent conceded his failure to comply with the matters referred to in particulars 9 and 10 and expressed regret that he had not met with the psychiatrist except on a couple of occasions, and had not met with the mentor because, if he had done so, this would have assisted him in dealing with the stressful situation which he was then encountering. The respondent's evidence generally 1. In the course of giving evidence and, concurrently, making submissions, the respondent said that he had been suspended from practice for a period of 21 months and had been in custody awaiting trial for the last 15 months. He said that he was now "clean", and was able to think clearly with insight. He acknowledged that the conditions had been imposed on his registration as part of a scheme to assist him in rehabilitating himself whilst continuing to practise medicine. He said that he was unsuccessful in completing the programme because he had relapsed into drug addiction and that his behaviour, the subject of the majority of the complaints, was undertaken to cover up that he was again taking drugs. 2. The respondent said that he realised that he had now lost everything including his profession, his practice, his premises and that he was now homeless. He realised also that he had wasted the long training which he had undertaken to qualify in both medicine and dentistry. He had also lost his reputation, his own self-respect and the respect of his family and friends. He understood that the suspension of his right to practise was required in order to protect the public 3. The respondent said that he wanted an opportunity to rehabilitate himself and to recover from his drug addiction. He would attend a residential rehabilitation course and other programs, consult a psychiatrist, undertake urine drug testing and comply with other conditions. He was also concerned that his surgical skills would become "rusty." 4. We shall revisit the respondent's evidence and submissions when considering his present circumstances by reference to the protective orders which should be made. 5. We should add for completeness that the respondent asked that we continue the current suspension from practice with the imposition of strict practice conditions including the continued participation by the respondent in the Impaired Registrants Panel, all of which would apply once he was released from prison. Of course, the date of release will depend upon the outcome of the criminal proceedings which are not yet concluded. The complainant sought an order for the cancellation of the respondent's registration and, having regard to the concessions made by the respondent in his evidence, submitted that a period of three years be fixed before the respondent would be permitted to reapply for registration. 6. Having regard to the evidence given in the proceedings and the concessions and admissions properly made by the respondent, we are comfortably satisfied that each of the complaints and each of the particulars of the complaints are proven, and we so find. Is the respondent guilty of professional misconduct? 1. These proceedings are regulated by the Health Practitioner Regulation National Law ("the National Law"). The complainant asserts, and the respondent concedes, that the respondent is guilty of professional misconduct. Misconduct of this kind is defined in section 139 E of the National Law in the following terms: 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. 1. This definition in turn makes reference to the definition of unsatisfactory professional conduct which is defined, in part, as follows: 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. (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. 1. We commence our consideration of whether the respondent is guilty of professional misconduct by observing that, at all relevant times, he had been placed on the Impaired Registrants Panel. The National Law has been formulated to allow health practitioners who are impaired to continue to practise under conditions which are designed to protect the safety of the public. The respondent was so placed because of his drug dependency. It is hopefully not necessary for us to discuss in any detail the dangers posed to the public by exposure to a surgeon who is drug dependent and whose surgical and other professional work may be unduly affected by drugs. The respondent was permitted to continue to practise medicine with conditions imposed which would have the effect of protecting the public and also enhancing his ability to undertake rehabilitation. To some extent, therefore, the respondent was in a privileged position of being permitted to continue to practise medicine even though he was the subject of an impairment. 2. It is a trite observation that practice conditions imposed in these circumstances must be strictly observed. It follows that a failure to comply with them is a serious matter, and especially so in the circumstances of these proceedings because the failures were achieved through conduct involving dishonesty and deceit. 3. Of course, the respondent was driven by his need to consume drugs which, as he conceded, destroyed his sense of morality and ethics and his judgement. Although the respondent's dependency explains his misconduct, it does not excuse such misconduct. So much is clear from the judgment of Basten JA (Campbell and Hoeben JJA agreeing) in the New South Wales Court of Appeal in Reimers v Health Care Complaints Commission [2012] NSWCA 317. His Honour said at [12]-[14]: 12. So understood, the first proposition is untenable. Gross, repeated, incompetent medical practice does not cease to be such because it is caused by an addiction to alcohol, heroin or other drugs. This was not a case where the practitioner was held to be unaware of his condition or its consequences. That he continued to practice as an anaesthetist whilst unable to exercise the necessary care, skill and judgment, could reasonably be found to constitute professional misconduct. The conclusion of the Tribunal that there was professional misconduct was, at least, unsurprising. 13. The second proposition is also untenable. There is no doubt that addiction is a condition which may, perhaps should, evoke sympathy. The degree to which a criminal offence is caused by a mental illness, including addiction, may properly be reflected in the sentence imposed. Nevertheless, "protection of the community" is a relevant sentencing principle and may, within limits of proportionality identified by reference to the seriousness of the offence, extend rather than restrict the sentence: The Queen v Veen [No 2] [1988] HCA 14; 164 CLR 465. But the underlying purpose of a disciplinary order of deregistration is not primarily punitive, but protective. That is not to impose some artificial dichotomy of punitive and protective orders, contrary to Rich v Australian Securities and Investments Commission [2004] HCA 42; 220 CLR 129. Rather, it is to recognise the primary object of the Medical Practice Act which was "to protect the health and safety of the public by providing mechanisms designed to ensure that ... medical practitioners are fit to practise medicine": s 2A(1). Misconduct which could be classified as professional misconduct may properly lead to deregistration. 14. In short, the applicant's submission that impairment cannot be professional misconduct is true, but only in the sense that an impairment is not conduct. An impairment may manifest itself in conduct or, to reverse the relationship, an impairment may explain particular conduct in part or in whole. There is no substance in the complaint that the decisions of the Tribunal on the various complaints were manifestly unreasonable. That being so, the challenges to the deregistration order must also fail. 1. We also adopt as being relevant to our determination of these proceedings the following observations by the Tribunal in Health Care Complaints Commission v Mitchell [2015] NSWCATOD 151. At [67]: 67. Mr Mitchell's conduct in breaching the Practice Conditions and his dishonesty in attempting to conceal, deny and mislead as to his breaches, when taken together, are of a very serious nature. They demonstrate a lack of insight into the need to act scrupulously with regard to his professional obligations and to show proper respect to the requirements of the Council imposed upon him. In the Tribunal's view it is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. The Tribunal is satisfied that Mr Mitchell is guilty of professional misconduct under section 139E of the National Law. 1. We are unable to divorce our consideration of the circumstances in which the respondent breached the practice conditions from the fact that they were imposed because he was drug dependent. Accordingly, the fact of his drug dependency is part and parcel of the circumstances which are relevant to the disposition of these proceedings. This places our consideration of this matter in a different category to one where, for example, the practice conditions were imposed solely by reference to the keeping of appropriate clinical records in the context of a health practitioner who was otherwise competent and fit to practise. The protection of the public assumes greater significance in evaluating the seriousness of the misconduct of the respondent in breaching the practice conditions involving, as we have said, dishonesty and deceitfulness, in addition to continuing to take methamphetamines. 2. We are of the opinion that the misconduct of the respondent, as found by us to have been proven, is of such a serious nature that it is unbecoming of a medical practitioner and is of such gravity that the respondent's registration should be cancelled. It follows that we are entitled to conclude that the respondent is guilty of professional misconduct, and we so find. 3. It then becomes necessary to determine what protective orders should be made as a consequence of this finding. Consideration of the circumstances of the respondent in the context of appropriate protective orders 1. In determining what orders are appropriate we are guided by relevant principles established by appellate court authority. In Health Care Complaints Commission v Do [2014) NSWCA 307, Meagher JA (with whom Basten and Emmett JJA agreed) said at [34]-[37]: 34 The National Law establishes a registration and accreditation scheme. That scheme, by Div 3 of Pt 8, includes provisions for the making of complaints about registered health practitioners and the determination of those complaints, including in relation to serious complaints, by the Tribunal. The objectives of that scheme, as described in s 3(2), include to "provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered" and to "facilitate access to services provided by health practitioners in accordance with the public interest". The provisions in Pt 8 concerning the making and dealing with of complaints are provisions substituted in the National Law by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). Section 3A of the Law provides that in the exercise of those functions "the protection of the health and safety of the public must be the paramount consideration". Section 4, which applies to the National Law as in force in New South Wales, also requires that an entity having functions under it "is to exercise its functions having regard to the objectives and guiding principles" set out in s 3. 35 The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 36 In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37 In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. We are conscious that in determining the nature and extent of any protective orders we must take into account a primary regard for the protection of the health and safety of the public in the practice of medicine by this respondent and whether, in all the circumstances, the misconduct which we have found would render the respondent being characterised as having a character so unbefitting a medical practitioner that his registration should be cancelled. We acknowledge that it is integral to our functions and powers that we also take into account the necessity to uphold appropriate professional standards and to send a message to other medical practitioners that misconduct of this kind will not be tolerated. All of these matters are well established by relevant authorities, and succinctly summarised in the extract from Do set out above. 2. We commence our consideration of what protective orders should be made consequent upon the finding of professional misconduct which we have made by observing that, in doing so, we shall by necessity need to examine and discuss his behaviour and his conduct. This is a specialist tribunal and in addition to the presence of a judicial officer, is currently comprised of an experienced consultant psychiatrist and general practitioner and a community member with the degree of Doctor of Philosophy and specialist expertise in ethics. All of our combined expertise and experience has been brought to bear when formulating the observations which follow. 3. The situation in which the respondent now finds himself represents a classic narrative of the devastating and destructive power of the methamphetamine drug when consumed by a vulnerable person. 4. The information in the documentary and oral evidence adduced from the respondent on the first day of the hearing left gaps in our understanding about what had happened to him in the years 2009 to 2016. These gaps meant it was not possible to reconcile: 1. His overcoming of the significant disadvantage of arriving in Australia from Korea as a teenager in Year 10 with no English language skills to his progressing 18 years later having dual qualifications as a medical practitioner and a dentist, and with specialist surgical qualifications in the highly specialised sub-speciality of maxillo-facial surgery; with 2. being a professional person who failed to utilise the structure and supports of an Impaired Registrants Programme (IRP) from 2011 to 2014 by non-adherence to the protocols of the UDT programme, producing fraudulent documents to cover up his non-adherence to the UDT protocols, then having his medical and dental registration suspended in a Section 150 Hearing on 16/9/2014 and now being on remand in jail facing criminal charges associated with drug use. 1. This created the question of what has happened to this person to explain his current predicament. We canvassed with the complainant whether we should receive evidence from Dr A. Petherbridge, a consultant psychiatrist who had assessed Dr Sun on three occasions for the Medical Council and who might, in the light of the respondent's admission of the complaints, be in a position to cast a professional light on the explanation for this trajectory knowing as he did the personal and family background history and having himself had the experience of the respondent clearly and apparently convincingly lying to him. It was clear from the evidence before us, including the Section 150 hearing transcript, and a report of a consultant psychiatrist, Dr M. Giuffrida of 5 December 2011 provided to the Medical Council, that the respondent's affairs were in a chaotic condition. He had inadequate professional indemnity insurance to cover the nature of his professional work, was ignorant about the CPD requirements for his areas of practice, he was professionally isolated, was the subject of tax audits, was facing bankruptcy, was the subject of Medicare audits for questionable charging practices, his practice company was facing liquidation, he was locked out of his premises for unpaid debts, and in addition to all of these problems had failed to comply with the practice conditions imposed on his registration. A possible explanation was that up until he returned from a year's sub-speciality training in Korea in 2008, the respondent had always functioned within the structures of training institutions or programmes and that on leaving such structured environments, he then had to manage on his own initiative to deal with extensive new sets of demands such as seeking personal financing loans for his private practice enterprise, hiring and managing staff, acquiring complex equipment and computing software systems, marketing himself to referring practitioners and managing his workload. 2. In the evidence that the respondent gave on the second day of the hearing, he finally provided a coherent explanation of what had happened in the years in question. 3. This began when the respondent said in response to questions from counsel for the complainant that he had lied about being too late to go to the appropriate laboratory to provide a UDS on Wed 13 August 2014 (Complaint One, particular 2). He said that he had smoked methamphetamine on that day after feeling stressed at work which he finished around 1pm, and had attended an unaccredited laboratory instead later in the day as he knew the specimen would not be accepted as valid for testing. He said he did this to avoid detection of his illicit drug use that afternoon. 4. The respondent subsequently conceded that he had been using methamphetamine during the period he was in the impairment program and had then repeatedly tried to cover up his usage. He said he had been compliant for periods of time but had relapsed when stressed. He outlined to us all the losses he faced as a result of his drug abuse which he now openly acknowledged had been ongoing through his years in the Impairment Program, after an initial period of remission from drug use. 5. The respondent said that the drug use had eroded his proper sense of ethical and moral judgement and that he was deeply embarrassed and remorseful about this behaviour. He said he had lost his career, his financial standing, the regard of his colleagues, his family's regard, his good standing in the community and everything he had worked for over the 18 years that he had dedicated to studying to prepare him to practise in his profession. He appreciated too the risk of damage to the good standing of the medical profession and that he was bringing the profession into disrepute. 6. The respondent said that he now understood that his struggle with drug abuse as a method of coping would be life long and he accepted the need for medium-term rehabilitation in a residential facility and then long-term counselling in a specialised drug and alcohol counselling setting. He reiterated a number of times that although he was "clean" in the 15 months he had been incarcerated, he was potentially at risk of relapse once back in the community. 7. The respondent was asked, given his insight and acceptance of his drug abuse and its consequences, if he was able to explain how it was that he had become so unwell and to such a degree that he had behaved as he had. In response to this questioning, he said that he had returned from a Fellowship year training in maxillo-facial surgery in Korea as a "golden boy" (ie a success story of a migrant boy made good). He said that he had featured on the Korean version of "60 Minutes" but that after his return to Australia, the death of his brother who was four years older had had a profound and destabilising effect on him. 8. The respondent described the nature of his brother's condition saying on three occasions in evidence that his brother's condition was misdiagnosed. The documents contained information that his brother was suffering headaches, went to his GP who prescribed analgesia without ordering a CT scan and subsequently suffered a cerebral haemorrhage while driving the respondent's car. After five neurosurgical operations to try and save his life, the respondent and his parents agreed to turning off the life support systems for his brother. 9. The respondent described how he was then unable to function - he could not do surgical operations because he had flashbacks of his brother's surgical scars and so he did not work for two months. He said that in this period of time, he went to a pub where he encountered people who introduced him to methamphetamine and that subsequently he began to use this drug to "help" him cope with stress and distress. The respondent said that he had had many months since his imprisonment to review his situation and he realised now at the age 45 years, that on return to Australia at age 38 years, he had been "stupid and immature", and when faced with the tragic loss of his brother he had turned to drugs to cope with his feelings. these drugs, he said, had 'eaten his mind'. 10. We regard this account as having credibility. One can surmise that the respondent was a man used to achieving at a very high standard by dint of his intense application and prodigious intellectual capacity, but within predictable environments. He said that he always expected that he would succeed and do well. He said that when he found himself "on his own" trying to establish himself professionally and financially in the real competitive world, things did not automatically 'go his way'. Then the tragic death of his older brother, placed the respondent as the next son in line for the family expectations of success, given how well he had succeeded to date. This dynamic and the intense distress occasioned by the nature of his brother's demise appears to have overwhelmed his immature coping mechanisms such that he succumbed to drug use and then abuse, with the evident outcomes seen now. 11. The respondent has expressed a desire to undertake appropriate rehabilitation and ongoing treatment once in the community. He expressed a sincere wish to be able to assist his very aged parents financially and regain their regard. However, given that this recovery process is still to be entrained and tested, the respondent would need to provide convincing evidence that he had continued drug free and had been adherent to treatment protocols over some years before being allowed to practise medicine again. Such a conclusion is based primarily upon the need to protect the public from a medical practitioner who is drug dependent, or who might relapse into drug dependency. It is also based on the need to ensure public confidence in the practice of medicine by medical practitioners and to deter others who might be tempted to succumb to taking drugs of addiction, whether for so-called recreational purposes, or otherwise. 12. We conclude in all the circumstances that pertain to the respondent, that the appropriate protective order is to cancel his registration, and we propose to do so accordingly. Based on our understanding of his circumstances as disclosed in the evidentiary material before us, we propose fixing a period of three years before the respondent may again apply for registration. Costs 1. The complainant sought an order for costs in its favour. This is a costs jurisdiction. Whilst the respondent was obviously unhappy about the prospect of having to meet a costs order, there is no argument available to him to resist the making of such an order. It is well-established that impecuniosity is not a reason to decline to make a cost order. 2. We propose to make a cost order in favour of the complainant. Orders 1. The registration of the respondent as a medical practitioner is cancelled pursuant to the provisions of section 149C of the National Law. 2. Pursuant to section 149C (7) of the National Law, a period of 3 years is fixed before the respondent may apply for a review. 3. The respondent is to pay the costs of the complainant in an amount assessed in default of agreement. 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: 22 June 2016