Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr CRF [2016] NSWCATOD 120 Hearing dates: 8 August 2016 Date of orders: 16 September 2016 Decision date: 16 September 2016 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Dr P Anderson, Professional Member Dr S Ieraci, Professional Member S Lovrovich, Lay Member Decision: (1) The registration of Dr CRF (the practitioner) is cancelled. (2) The Medical Council of NSW is requested to advise the Australian Health Practitioner Regulation Agency of Order 1 of these orders as soon as practicable. (3) Under s 149C(7) the practitioner may not apply to the NSW Civil and Administrative Tribunal under s 163A of the Health Practitioner Regulation National Law (the National Law) for a re-instatement order for a period of two years from the date of these orders. (4) The practitioner shall pay the costs of Health Care Complaints Commission of and incidental to the proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: PROFESSIONAL DISCIPLINE – Where it is alleged under the Health Practitioner Regulation National Law practitioner is guilty of unsatisfactory professional conduct and professional misconduct, is impaired and is unfit to practise medicine. Where practitioner concedes the allegations in the complaint – Where practitioner concedes her registration should be cancelled and that she should pay the HCCC's costs. Where dispute as to whether any period should be imposed before practitioner can apply for a re-instatement order and whether or not non-publication order should be made. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Clyne v NSW Bar Association (1980) 104 CLR 186 HCCC v Gow (Supression Order) [2008] NSWMT 3 HCCC v Simring (Suppression Order) [2010] NSWMT 6 Health Care Complaints Commission v Khan [2016] NSWCATOD 32 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 Hogan v Hinch (2011) 234 XLR 506 Qasim v Medical Council of NSW [2015] NSWCA 282 Reimers v Health Care Complaints Commission [2012] NSWCA 317 Welker v Rinehart (No 6) [2012] NSWSC 160 Walton v Momot [1997] NSWCA 143 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr CRF (Respondent) Representation: Counsel: R Graycar (Applicant) M Lynch (Respondent) Solicitors: Health Care Complaints Commission (Applicant) TressCox Lawyers (Respondent) File Number(s): 1520183 Publication restriction: Unless leave is first granted by the Tribunal pursuant to Schedule 5D Cl 7 of the National Law except to comply with Order 1 and 2 of these orders no person or entity shall publish the name of the practitioner, her husband or her friend, Mr AB whose names are set out in the Exhibits before the Tribunal. reasons for decision Introduction 1. Dr CRF (the practitioner) is a 36 year old medical practitioner with a significant history of use of illicit drugs and serious mental health issues, including suicidal ideation and attempted suicide. The practitioner's drug use and mental illness have led to her hospitalisation on numerous occasions including admissions as an involuntary patient. She was first registered in January 2007. She has not worked as a medical practitioner since 2013. Her registration has been suspended since March 2014. 2. The Health Care Complaints Commission (the HCCC) commenced proceedings in the Tribunal in September 2015 seeking orders under the Health Practitioner Regulation National Law (the National Law) that the practitioner's registration be cancelled. The complaints agitated by the HCCC are that the practitioner is guilty of unsatisfactory professional conduct, and professional misconduct. The HCCC further allege the practitioner suffers an impairment and is not competent to practise medicine. It is asserted she is not otherwise a suitable person to be registered as a medical practitioner. 3. At the commencement of the hearing the practitioner's counsel, Mr Mark Lynch, advised us that the practitioner conceded all the complaints brought by the HCCC, and that she did not oppose the making of an order that her registration be cancelled. This concession was consistent with the Reply filed by the practitioner, except in relation to the particulars of impairment pleaded in the complaint annexed to an Application for Disciplinary Findings and Orders. Sensibly, the HCCC did not seek to agitate the various particulars in dispute in the impairment complaint (Personality Disorder, Major Depressive Disorder, or Anorexia Nervosa) but rather relied on the particulars conceded (poly substance abuse, abuse of alcohol, dependence on two benzodiazepines, anxiety including panic attacks, episodes of paranoid psychosis and Bipolar Affective Disorder Type II) to establish the claim. 4. The practitioner did not appear at the hearing. Her counsel advised us she was too unwell to do so. 5. Three issues remained in dispute at the hearing namely: 1. should the Tribunal reprimand the practitioner? 2. should the Tribunal make an order under s 149C (7) precluding the practitioner from applying under s 163A of the National Law for a re-instatement order for a period of two years (or some other period) OR should no order be made? 3. did the evidence support a finding that there are exceptional circumstances such that the practitioner's name should not be published. Mr Lynch submitted that the practitioner's history of suicidal ideation and attempts to end her life, and risk of suicide on publication of these reasons, constituted exceptional circumstances such that an order should be made. 1. We determined for the reasons set out later in these reasons that a reprimand should not be issued and subsequently recorded on the practitioner's registration. 2. After hearing oral evidence from the psychiatrist appointed by the Medical Council of NSW to examine the practitioner, Dr Robert Fisher, (Dr Fisher) we concluded, based on his evidence, that an order should be made under s149C (7) precluding the practitioner for applying for a re-registration order for a period of two years. We further determined, based on the whole of expert evidence, but particularly that of the practitioner's treating psychiatrist, Dr D Florida (Dr Florida), that if the practitioner's name was published she would be at high risk of suicide, to restrict publication of her name. 3. These are our reasons for our decision that the practitioner is guilty of professional misconduct, is impaired, not competent to practise, and otherwise not suitable to hold registration, and our ancillary orders under s 149C (7) and Cl 7 of Schedule 5D of the National Law. Background 1. We were provided with a detailed chronology by Ms R Graycar, counsel for the HCCC as an aide memoir together with a draft agreed statement of facts. The chronology was a summary drawn from the evidence tendered without objection on behalf of the HCCC. The facts set out in the chronology were not subject of dispute. It is unnecessary that we repeat all of the detailed information in the chronology, but rather now set out significant relevant factual matters including material from the practitioner's statement. Unless noted by us to be an assertion the facts recorded are established on the evidence to the requisite standard of proof. 2. The practitioner was born in 1980. She commenced drinking alcohol when she was 15, and whilst a teenager, is asserted to have developed an eating disorder. The practitioner asserts her mother had a serious drug and alcohol problem during the practitioner's childhood and adolescence. The practitioner's husband, also a medical practitioner, has also used illicit drugs and has been managed in the Impaired Registrants' program. 3. The practitioner commenced a Bachelor of Medical Science degree in 1998 which degree she obtained in 2001. She subsequently sat the GAMSAT examination and was successful at her second attempt at this examination. The practitioner obtained the degrees of Bachelor of Medicine, Bachelor of Surgery in 2007. 4. The practitioner's medical records and her self-reporting to Dr Fisher, disclose that she commenced using illicit drugs (marihuana and then Methylenedioxy-methamphetamine (MDMA) and Ecstasy in 2000) when she was aged 20/21 years. Thereafter she continued to use MDMA in combination with amphetamines, as well as Diazepam. 5. The practitioner met her husband in 2004 when he was also a medical student. They married in 2007. 6. In 2007 the practitioner underwent an intern year at a Sydney hospital. During this period her drug use escalated and she used both Ecstasy and Cocaine. The following year, whilst employed at the same Sydney hospital, she first used crystal methamphetamine, smoked, and also took Gammahydroxybutyrate (GBH). The practitioner reported to Dr Fisher she had "consumed prodigious quantities of crystal methamphetamine, at times using continually over six weeks". She also reported that her weekly expenditure on drugs (obtained from friends and dealers) of "thousands of dollars per week, often $200.00 to $400.00 per day". 7. The practitioner also reported to Dr Fisher that she had become paranoid while using crystal methamphetamine in 2012. 8. In 2009 the practitioner was appointed to the position of Senior Resident Medical Officer in the Emergency Department of a large Sydney public hospital. During this period the practitioner underwent a three month rural hospital rotation. She asserts she was lonely, profoundly unhappy and had suicidal thoughts. She was referred to a psychiatrist who made a diagnosis of Bipolar Affective Disorder Type II. 9. In 2010 the practitioner was appointed as Emergency Department Registrar as an advanced trainee in emergency medicine for a period of 12 months at the same large public hospital. She resigned from this position in July 2011 because she found the work too stressful. 10. In July 2011 the practitioner obtained employment with a locums' agency and her drug use escalated. 11. In December 2011 the practitioner commenced an interstate relationship with Mr AB. Mr AB was a crystal methamphetamine user. The relationship was characterised by violence perpetrated by Mr AB on the practitioner. 12. On 31 December 2011 the practitioner fell and hit her head whilst intoxicated. 13. In 2012 the practitioner consulted her general practitioner for depression.By June 2012 the practitioner asserts her drug taking increased and she engaged in "risk taking behaviour". 14. In April 2013 the practitioner's employment with the locum agency was terminated due to her poor attendance record. 15. The practitioner asserts she abstained from using crystal methamphetamine between 1 June 2013 and 25 June 2013. However on 18 June 2013 the practitioner reported to her general practitioner that during her abstinence from crystal methamphetamine she had been drinking up to 80gms of alcohol daily and taking Xanax. She reported self-harm and suicidal thoughts. She told her general practitioner that she had, on occasions, attended work whilst drug affected. 16. On 25 June 2013 the practitioner and her general practitioner made a notification to the Australian Health Practitioner Regulation Agency (AHPRA). 17. In July 2013 the practitioner first consulted Dr Keith Roberts, psychiatrist (Dr Roberts). She reported to Dr Roberts excess consumption of alcohol (2-14 drinks per day) engaging in sexual risk taking behaviour, self-harm cutting along her veins with a Swiss Army knife or Leatherman knife and using crystal methamphetamine and cocaine whilst at work at a public and private hospital. She also reported being paranoid. 18. In July 2013 the practitioner was admitted to Flinders Medical Centre Emergency Department following a deliberate drug overdose. She became subject of a statutory treatment order. The practitioner was noted to have a significant risk of absconding and making continued suicide threats. At the time of her admission the practitioner's provisional diagnosis was "Overdose". A notification was made by a practitioner at the Flinders Medical Centre to AHPRA. 19. On 23 July 2013 the practitioner was admitted, on a voluntary basis, to a Sydney clinic. She attended drug and alcohol sessions and cognitive behaviour groups. At a consultation with Dr Roberts shortly after this admission the practitioner reported she had avoided drug use and cut back on alcohol. She expressed a wish to have a career in pathology. 20. In September 2013 the practitioner travelled interstate where she again used crystal methamphetamine. 21. On 30 September 2013 the practitioner attended her first appointment with Dr Fisher. The practitioner made significant disclosures of her drug usage to Dr Fisher and also reported engaging in promiscuous behaviour to obtain drugs. The practitioner asserts she found the interview confronting and recommenced using crystal methamphetamine and GBH. 22. In October 2013 the practitioner was admitted to a Sydney major public teaching hospital after overdosing on crystal methamphetamine, GBH and 33 benzodiazepines. She required intubation and discharged herself against medical advice. Following this admission a mandatory notification was made by a practitioner at the hospital to AHPRA. She was assessed for eligibility to into the Stimulant Treatment Program (STD), a program designed for people who wish to reduce or cease their use of stimulants. 23. In November 2013 the practitioner relapsed into crystal methamphetamine use. 24. In November 2013 the practitioner suffered a deep vein thrombosis in her calf and developed a pulmonary embolism. 25. Between December 2013 and January 2014 the practitioner visited Mr AB interstate and he also travelled to Sydney. They both used crystal methamphetamine, MDMA and cocaine. About this time the practitioner's weight had reduced to 47kgs. The practitioner continued to use crystal methamphetamine and MDMA in January 2014. 26. In January 2014 the practitioner self-reported to her then treating psychologist that she had been raped on three occasions by strangers and drug dealers. She also reported to Dr Roberts that she had, in January 2014, worked in a brothel as a sex worker. 27. On 21 January 2014 the practitioner was admitted to the emergency department of a Sydney hospital following a motor vehicle accident in which her husband was driving the car. The clinical notes record the practitioner was under the influence of alcohol, that she had smoked ICE just before the accident and consumed Diazepam 120mg and 2.5mg of morphine. 28. The practitioner attended on Dr Fisher on 25 February 2014. Dr Fisher diagnosed the practitioner as suffering an impairment namely "a paranoid state preceded by a Mixed Anxious Depressive State, which either developed as a direct result of use of crystal methamphetamine or as a consequence of the withdrawal from heavy and sustained use of crystal methamphetamine". 29. On 7 March 2014 the practitioner attended an Impaired Registrants' Panel which was adjourned until after her next psychiatric appointment. On 13 March 2014 the practitioner's registration was suspended under s 150 of the National Law. 30. In March 2014 the practitioner failed to attend a scheduled appointment with Dr Roberts. She relapsed into the use of crystal methamphetamine during 2014. 31. In May 2014 the practitioner was admitted to an interstate health service following an incident of domestic violence by Mr AB when she suffered fractured ribs. 32. Later in May 2014 the practitioner attended a Centre for Addiction Medicine when she was suffering acute pain as a result of her fractured ribs. She subsequently did not attend scheduled appointments at the Centre. 33. In May to July 2014 the practitioner again used crystal methamphetamine. 34. In August 2014 the practitioner attended a drop in clinic and reported suicidal ideation and requested a detoxification assessment. 35. In September 2014 the practitioner was taken to the Emergency Department of a Sydney hospital by NSW Police. The practitioner had taken 40mg diazepam with alcohol and cut her arm superficially three times. A drug screen detected benzodiazepines and opiates. 36. Following her discharge from hospital the practitioner failed to attend a number of appointments with treating doctors and clinics. She resumed almost daily use of crystal methamphetamine. 37. In early November 2014 the practitioner was again brought to the Emergency Department of a Sydney hospital by NSW Police. She was "scheduled" for threatening to kill herself with a knife, consuming 42 Valium tablets and 8 panadeine forte tablets, but denied suicidal ideation. 38. In December 2014 the practitioner again engaged in drug usage. She asserts she has not taken crystal methamphetamine or any illicit drugs since 8 December 2014. After her husband and father's intervention, the practitioner ceased her relationship with Mr AB. 39. In January 2015 the practitioner admitted herself to a Sydney clinic suffering from anorexia nervosa and seeking to detox from benzodiazepines and medically prescribed Dexamphetamine. She was discharged at the end of February 2015. The practitioner asserts she was abstinent from drugs but "struggling with feelings of depression and hopelessness". 40. In March 2015 the practitioner was admitted to hospital in the ACT where she was detained under the relevant legislation pursuant to a psychiatric treatment order until 24 April 2015. On discharge she lived with her parents and consulted a general practitioner and psychiatrist for management of Bipolar Affective Disorder Type II and severe depression. 41. In July/August 2015 the practitioner was admitted to a clinic under the care of her present treating psychiatrist, Dr Danielle Florida (Dr Florida). She was again admitted to the clinic under Dr Florida as an in-patient in October 2015. She commenced attending sessions at Partners in Recovery and Doctors in Recovery. During an exercise period at the clinic she ruptured her anterior cruciate ligament. 42. In November 2015 the practitioner was admitted to a Sydney hospital when she suffered a bowel obstruction as a consequence of analgesic medication used for her knee pain. She thereafter was referred to a clinic under Dr Florida's care. 43. In December 2015 the practitioner underwent surgery to repair her damaged cruciate ligament. 44. In February 2016 the practitioner attended a review consultation with Dr Fisher. 45. In March 2016 the practitioner again experienced depression and was re-admitted to the clinic. 46. In April 2016 Dr Florida reported that the practitioner's current mental state was not stable and that she remained "depressed and intermittently suicidal". 47. In December 2015 the hearing before the Tribunal scheduled for 14,15 and 16 March 2016 was vacated due to the practitioner's incapacity to give instructions. The matter was listed for a further three days commencing on 6 June 2016. Based on evidence from Dr Florida those dates were also vacated, and the matter listed for hearing in August 2016. 48. In April 2016 the practitioner was transferred from the clinic to a Sydney hospital for treatment for a bowel obstruction and pneumonia. She was discharged into the care of her family in early May 2016. 49. At the date of the hearing the practitioner remained under the care of Dr Florida. The relevant law The onus and standard of proof 1. The onus or burden of proof is that of the HCCC. It is well established, due to the protective nature of the jurisdiction and the seriousness of the complaints both for the practitioner and the public, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. The objects of the National Law 1. The objects of the National Law, found in s 3 and particularly in NSW in s 3A, guide and direct the Tribunal in its decision making. At the heart of all proceedings is the mandate to ensure decisions protect the health and safety of the public. Also relevant is that a Tribunal ensure only those practitioners who are fit to practise are registered if a claim of not suitable to practise is established. 2. Against our reference to the objects of the legislation, it is relevant at this point in our reasons that we record that protective orders made at the end of a hearing are not intended to punish the practitioner, but to protect the public (see Clyne v NSW Bar Association (1980) 104 CLR 186). Where complaint is conceded in writing 1. It is a matter of discretion for a Tribunal whether or not to conduct an inquiry into a complaint when the subject matter of the complaint is admitted by the registered practitioner in writing (see s 165H of the National Law). The submissions filed on behalf of the HCCC state: In light of [the practitioner's admissions in relation to Complaints One, Two, Four and Five the complainant submits that it is not necessary for there to be an inquiry into the subject matter of those complaints. 1. We note that after these submissions were prepared the agreement was reached between the parties that Complaint Three was established with reliance only on the particulars acknowledged by the practitioner. 2. On 16 June 2016 the practitioner's solicitors filed a Reply on her behalf in which she admitted a number of the complaints, but did not admit Complaint Four or Complaint Five (not competent to practise as a medical practitioner in that she does not have sufficient mental and/or physical capacity to practise as a medical practitioner and is otherwise not a suitable person to hold registration). 3. We are satisfied that the Reply, being a document signed by the practitioner's solicitors as her Agent satisfies s 165H in respect of Complaints One and Two it is unnecessary for us to conduct an inquiry into those complaints. 4. Subsequently by letter dated 3 August 2016 addressed to the HCCC, and copied to the Tribunal the practitioner's solicitors noted they were instructed the practitioner conceded she was not currently competent to practise as a medical practitioner. Subsequently on 5 August 2016 the practitioner's solicitors again wrote to the HCCC, with a copy to the Tribunal, in which letter it was noted that the practitioner maintained her position in relation to the particulars in Complaint Three, but that she admitted Complaints Four and Five. 5. The concessions in respect of Complaints Four and Five were reiterated orally by the practitioner's counsel at the commencement of the hearing. Thus, given the concessions made in writing by the practitioner's solicitors, it was unnecessary for us to conduct an inquiry into the subject matter of the complaint. Unsatisfactory professional conduct 1. The HCCC assert unsatisfactory professional conduct as defined in s 139B (1) (a) and (l) of the National Law. Those provisions are as follows: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following-- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. Professional misconduct 1. Complaint Two asserts the practitioner is guilty of professional misconduct. Professional misconduct is defined in the National Law in the following terms: 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. Impairment 1. Complaint Three asserts the practitioner has an impairment as defined in s 5 of the National Law. Impairment is defined in s 5 as follows: "impairment", 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; or … 1. Complaint Four asserts that the practitioner is not competent to practise the profession under s 139 of the National Law. Section 139 (a) relevantly 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; and .. Not suitable to hold registration 1. Section 144 of the National Law sets out the grounds on which a complaint may be made. Section 144 (e) provides as follows: The following complaints may be made about a registered health practitioner: (a) … (b)… (c) … (d) … (e) A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. Discussion and conclusions unsatisfactory professional conduct and professional misconduct 1. The particulars of unsatisfactory professional conduct are succinctly summarised in the outline of submissions for the HCCC. The submissions note: This complaint is particularised by [the practitioner] having attended work on a number of occasions between June 2012 and April 2013 while under the influence of illegal drugs including crystal methamphetamine (ICE) and cocaine and not notifying her employer of her abuse of, and dependence on, illegal drugs. 1. The same particulars are relied on to ground the complaint of professional misconduct. 2. The reasons of the delegates at the s150 proceedings are telling. The delegates recorded: [the practitioner] gave conflicting evidence regarding attending work whilst being drug affected. She initially stated she had not attended work whilst drug affected, describing ringing in sick rather than attending under the influence of drugs. However, later in the hearing, she described a period where she would use crystal methamphetamine and cocaine prior to going to work, she would stop at a service station on the way to work to use, and she would again use crystal methamphetamine and cocaine whilst at work. She would use codeine to decrease her dilated pupils to reduce the likelihood that others would suspect she was using stimulants. She stated she had only attended a few shifts whilst drug intoxicated … and believes she was functional at that time and that no one she worked with had any idea she was abusing drugs. 1. While we appreciate that the practitioner has serious psychiatric problems, her conduct in attending work whilst under the influence of drugs was a deliberate action, carried out knowingly and with complete disregard for the safety of patients attending the public and private hospital at which she was working. We are reminded of the comments of Basten JA in Reimers v Health Care Complaints Commission [2012] NSWCA 317. In that case the practitioner argued that he could not be guilty of professional misconduct when he was found to suffer an impairment. His Honour noted: The applicant says that if impairment were established, as the Tribunal found, he cannot be guilty of professional misconduct: written submissions, paragraph 9. That proposition, however, elides two ideas which need to be separated. The applicant must say either that conduct which results from an impairment cannot be professional misconduct, or that it is manifestly unreasonable to treat misconduct which is the result of an impairment as professional misconduct warranting deregistration. 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. 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. 1. The seriousness of the practitioner's conduct is succinctly captured in the final paragraph of Dr Fisher's report where he says: [the practitioner's] conduct does not excuse away the dangerous, self-destructive and antisocial behaviour in which she has engaged over many years. This has occurred, despite being intelligent, and being able to say that if she continues to use crystal methamphetamine, it is likely that she will die. 1. The practitioner's conduct exposed patients to significant risk. She engaged in serious and deliberate conduct with complete disregard to her patient's safety. Her actions in taking codeine to minimise the risk of detection demonstrates the deliberate nature of her conduct. We have no hesitation in finding her conduct was both unsatisfactory professional conduct and professional misconduct. Complaint Three, Four and Five 1. As noted earlier in these reasons Complaint Three was conceded on the practitioner but limited as to the particulars. The particulars of the complaint are more than adequately covered in the expert reports prepared by Dr Fisher. We are satisfied that the practitioner does suffer from long established poly-drug use, particularly the use of crystal methamphetamine, and that she has abused other drugs including cocaine, ecstasy in various forms and GBH. She has also abused alcohol, and has demonstrated dependence on medications including alprazolam and diazepam, suffered anxiety including panic attacks, and episodes of paranoid psychosis. She has been diagnosed as suffering Bipolar Affective Disorder Type II. 2. We are also satisfied on the evidence, particularly the reports of Dr Fisher and Dr Florida, and Dr Fisher's oral evidence, that the practitioner does not currently have the necessary mental capacity to practise as a registered medical practitioner and she is not currently a suitable person to hold registration. 3. It follows we are satisfied that the practitioner's registration, which is currently suspended, should be cancelled. Imposition of a reprimand 1. The HCCC asked that the Tribunal reprimand the practitioner although this proposal was not strongly pursued. In the course of submissions Ms Graycar referred to the fact that the practitioner had engaged in criminal conduct associated with her drug use. We note that the particulars of the complaint as pleaded are confined to the practitioner's actions in working whilst under the influence of drugs and failing to notify her employers of her drug addiction. Without minimising the matters pleaded, which the practitioner concedes, we find it would be unsafe to consider criminal conduct when there is no evidence of criminal charges or offences before us. 2. Ms Graycar was unable to refer us to any authority where a superior Court or another Tribunal had, in addition to making a cancellation order, also imposed a reprimand. We note that a reprimand is one of the actions under s 149A that can be imposed by the Tribunal if the subject matter of the complaint is admitted by the practitioner. 3. Mr Lynch submitted that we should not reprimand the practitioner as to do so would be unnecessary, the practitioner conceding her registration should be cancelled under s 149C. This action (cancellation) he submitted, was in effect the ultimate penalty that could be imposed on a practitioner rendering a reprimand otiose. 4. We find merit in Mr Lynch's submissions, and decline to issue the reprimand sought. We also take into account the necessity for the practitioner to demonstrate to a subsequent Tribunal that she is drug free, her mental health diagnosis treated and stable, and reform of character if she is to be re-instated to the register. Section 149C (7) of the National Law 1. By letter dated 3 August 2016 addressed to the HCCC the practitioner's solicitors noted the HCCC proposed seeking an order that the practitioner be precluded from applying to the Tribunal for a period of two years and that order was opposed. 2. At the hearing Mr Lynch submitted that because of the high hurdle the practitioner will face in seeking a re-instatement order that an order under s 149C (7) was unnecessary. He submitted the practitioner may never seek re-instatement, or if she does, that she would be foolish to prematurely bring such an application. Evidence in support of application 1. The HCCC rely on Dr Fisher's report dated 22 June 2016 where he opines: I would suggest that she apply for re-registration at some future date when she has demonstrated stability of mood, persisting abstinence from prohibited substances over a lengthy period of time (in the order of years rather than months) and that she also demonstrate reform of character over a similar period. 1. At our request, Dr Fisher kindly made himself available to answer the panel's questions about the issue of a prohibition period before which the practitioner could re-apply for a registration order. 2. Dr Fisher explained that in view of the practitioner's Bipolar Disorder Type II should would need a period of at least "a year or two" during which period she could be stabilised on anti-depressant medication. He explained that the question of reform of character presented a more difficult problem to forecast noting the practitioner's difficult childhood, her tendency to use drugs when distressed, and need to develop an appropriate moral code. 3. In response to questions posed to him by Dr Anderson and Dr Ieraci, Dr Fisher expanded on his opinion that it would be at least two years before the practitioner could realistically be in a position to seek re-instatement. Discussion and conclusions 1. It is important to note that the power to make an order under s 149C (7) is discretionary. It may be argued that an order should be made when, on the evidence, a practitioner is unlikely to be successful in a re-instatement application for some time. Although premature application may result in dismissal of that application, and an order for costs, the time of the Tribunal (and to the extent not compensated by costs, the contradictor to the application) will have been thrown away and other litigants before the Tribunal will have had their cases delayed. 2. We find the facts in this case readily distinguishable from those in Health Care Complaints Commission v Khan [2016] NSWCATOD 32 where the Tribunal declined to make an order under s 149C (7). In that case the Tribunal took into account the practitioner's age (77 years), his wish to voluntarily surrender his registration and the expert evidence of his declining cognitive health. That Tribunal concluded it was highly improbable that the practitioner would ever seek re-registration. Here the practitioner is young and may, if her rehabilitation and treatment is successful, have many years of professional practise ahead of her. But the current evidence of Dr Fisher, corroborated substantially by Dr Florida, is that a minimum period of two years is required for the practitioner's Bipolar Disorder to be effectively treated, her mental health stable and for her to demonstrate objectively such as by frequent urinalysis that she is drug free. She will need to show steps undertaken to demonstrate that her character is reformed. 3. We are satisfied that the evidence in this case supports the period of preclusion sought by the HCCC. Publication The application and evidence in support 1. As earlier noted in these reasons, the practitioner's solicitors notified the HCCC and the Tribunal that an application would be made that an order prohibiting the name of the practitioner under Cl 7 of Schedule 5D of the National Law be made by the Tribunal. 2. At the hearing Mr Lynch sought that the non-publication order extend to the name of the practitioner's husband, on the basis that publication of his name would identify the practitioner, and to that of Mr AB. In respect of the latter Mr Lynch explained that following the violent attack perpetrated on the practitioner by Mr AB when her ribs were fractured, the practitioner was in fear for her safety if his name was mentioned in these reasons. 3. We can deal shortly with the submission in respect of Mr AB and the practitioner's husband. Non-disclosure of their names is peripheral to these proceedings and does not transgress principles of open justice. We are satisfied their names should be subject of a non-publication order. 4. The evidence in support of the application is principally a letter from Dr Florida forwarded by fax dated 4 August 2016. Dr Florida states "To whom it may concern" and that she is the practitioner's treating psychiatrist. Relevantly she says "In relation to her upcoming HCCC hearing, in my opinion should her name be published, she would be at high risk of suicide". 5. We also took into account Dr Fisher's statement in his report of 22 June 2016 where having referred to the practitioner's Bipolar Disorder he said: During periods of severe depression patients with Bipolar Affective Disorder [are] at an extremely high risk of successful suicide. Figures quoted are of the order of 15% that is 1 in 6 or so people diagnosed with the condition will successfully kill themselves. The authorities 1. Before commencing our discussion it is appropriate we refer to the authorities relied on by the HCCC. 2. At [51] of her submissions, Ms Graycar referred us to the principle that Tribunal proceedings are open and conducted in public and that this reflected the principle "that the administration of justice is carried on in public" by reference to the decision of the former Medical Tribunal of NSW in HCCC v Simring (Suppression Order) [2010] NSWMT 6. The submissions also referred to the decision of the NSW Court of Appeal in Walton v Momot [1997] NSWCA 143. There Handley JA, in dealing with an appeal against an order made by a Judge hearing an appeal from the former Chiropractic Tribunal under predecessor legislation to the National Law said: The general principle provided for in s 46 (3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of the proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of that practitioner. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result. It could decide under s 46 (3) that it will sit in private, or it could make a suppression order under cl 6 (1) in the Third Schedule. This of course reflects the general principle that the administration of justice under our system is carried on in public. This has been repeatedly emphasised by the courts, most recently, for relevant purposes, in John Fairfax & Sons Limited v The Police Tribunal (1986) 5 NSWLR at 465, and by Samuels JA in Bowen-James v Delegate of Director-General Department of Health (40432/91 unreported 29/7/91). The Chairman therefore did not misdirect himself when he said that special or exceptional circumstances had to be established before a suppression order could properly be made. 1. More recent decisions of the Supreme Court of NSW and the High Court dealing with the question of open justice have confirmed that departure from that principle should be limited to exceptional circumstances (see Welker v Rinehart (No 6) [2012] NSWSC 160; Hogan v Hinch (2011) 243 CLR 506 at [20]). 2. The authorities dealing specifically with medical practitioners are summarised in Health Care Complaints Commission v Vo [2014] NSWCATOD 127 at [181]-[185]. 3. Ms Graycar also drew our attention to the decision of the former Medical Tribunal of NSW in HCCC v Gow (Suppresssion order) [2008] NSWMT 3. In that case the Tribunal refused to continue a suppression order in circumstances where the practitioner had a life threatening illness and held potential patients had a right to whether the practitioner had been subject to an order under the relevant legislation. In that case the practitioner had the right to continue practising with conditions on his registration. Discussion and conclusions 1. The expert retained by the Medical Council, Dr Fisher, has highlighted the risk of suicide in a patient such as the practitioner who suffers from Bipolar Disorder if depressed. Dr Florida's brief statement is explicit. It must be read in context of her other reports and the evidence before us including the practitioner's previous serious suicide attempts when depressed. We are satisfied exceptional circumstances exist in this case and that we should make the non-publication orders sought. Costs 1. The practitioner's counsel did not contest the HCCC's application that the practitioner should be ordered to pay its costs. 2. The relevant principles to be applied in this jurisdiction have recently been re-affirmed by the NSW Court of Appeal by Meagher JA in Qasim v Medical Council of NSW [2015] NSWCA 282 at [85] as follows: In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".) 1. In this case although the practitioner has conceded the factual matters pleaded in the complaint, and has not opposed an order cancelling her registration, that concession was not made until late in the day. We do not consider in these circumstances it constitutes exceptional or special circumstances that would warrant a departure from the usual rule of costs following the event. We have also taken into account that the quantum of costs that will be payable by the practitioner have been significantly reduced as the hearing time, as the result of her concessions, was abridged to one day, rather than the three day estimate given by the parties. We are satisfied it is appropriate to make an order that the practitioner pay the HCCC's costs of and incidental to the proceedings. 2. As the result of recent amendments to the National Law (Cl 12 Schedule 5D) if the parties are unable to reach agreement as to the quantum of costs, such costs may be assessed under the assessment scheme provided in the Legal Profession Uniform Law Application Act 2014 (NSW). ORDERS 1. The registration of Dr CRF (the practitioner) is cancelled. 2. The Medical Council of NSW is requested to advise the Australian Health Practitioner Regulation Agency of Order 1 of these orders as soon as practicable. 3. Under s 149C(7) the practitioner may not apply to the NSW Civil and Administrative Tribunal under s 163A of the Health Practitioner Regulation National Law (the National Law) for a re-instatement order for a period of two years from the date of these orders. 4. The practitioner shall pay the costs of Health Care Complaints Commission of and incidental to the proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). 5. Unless leave is first granted by the Tribunal pursuant to Cl 7 of Schedule 5D of the National Law, except to comply with Orders 1 and 2 of these orders, no person or entity shall publish the name of the practitioner, her husband or her friend Mr AB as set out in the Exhibits in these proceedings. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2016