Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v DAC [2017] NSWCATOD 98 Hearing dates: 13-17 March 2017, 15-18 May 2017 Date of orders: 28 June 2017 Decision date: 28 June 2017 Jurisdiction: Occupational Division Before: D Cowdroy ADCJ (Principal Member M Fearnside (Professional Member) G Smith (Professional Member) C Berglund (Lay Member) Decision: (1) That the Respondent is guilty of unsatisfactory professional conduct in respect of Complaints 1, 2, 3, 4 and 5; (2) That Respondent is guilty of professional misconduct in respect of Complaint 6; (3) That the Respondent be suspended for a period of 3 months commencing from the date of delivery of the decision of this Tribunal; (4) After the expiry of the suspension the Respondent's medical registration is to be subject to the following conditions: (a) The conditions currently imposed on the Respondent's registration by the Medical Council of NSW. (b) The Respondent must attend for treatment and monitoring by an Addiction Specialist. This specialist should be either an Addiction Medicine Specialist (FAChAM) or a specialist in Addiction Psychiatry (Cert. Addiction Psych.). To authorise the Respondent's treating Addiction Specialist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). (c) The Respondent is not to prescribe for self-medication. (d) The Respondent is not to self-administer: (i) any Schedule 4D or 8 Drug. (ii) any narcotic derivative, non-prescription compound analgesic or cold medication. Such medications must only be prescribed and taken at the direction of the Respondent's treating practitioner. (e) That should the Respondent be prescribed or directed to take a: (i) Schedule 4D Drug, (ii) narcotic derivative, (iii) non-prescription compound analgesic or cold medication, the Respondent must agree to notify the Council Appointed Psychiatrist and the Medical Council of NSW. In addition within seven days the Respondent must provide the Council with written confirmation of such treatment from the treating practitioner. (f) The Respondent must attend either weekly meetings of the Doctors in Recovery Group or other group therapy relating to addiction, or meetings of Narcotics Anonymous (NA) and authorise the Council to confirm the fact of attendance with the convenor of the group. (g) The Respondent must continue random Urine Drug Testing (UDT, in strict accordance with the Council's protocol). (h) That the Respondent should provide for approval by the Medical Council of NSW the name and professional address of a registered senior neurosurgeon in a senior position who has agreed to act as his professional mentor. The nature and frequency of contact with the mentor is to be determined by the mentor in accordance with the Council's Guidelines for Mentors but not less than monthly. The mentor is to be provided with a copy of the Guidelines: (i) The Respondent is to authorise the mentor to report, in an approved format, to the Council every three months, initially for twelve months, about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. (ii) The Respondent is to authorise the mentor to notify the Council of any failure to attend, termination of the mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate. (iii) The Respondent will meet with the mentor for an initial period of 12 months from the date of the first consultation and thereafter for such period as the Council may determine. (iv) In the event that the approved mentor is no longer willing or able to continue as mentor, the Respondent is to nominate another mentor for approval by the Council within 28 days of the cessation of the original mentor relationship. (v) The Respondent is to be responsible for any costs of the mentoring process. (vi) The meetings should include discussion of any personal and/or medical practice issues that may arise. (i) The Medical Council of NSW will be the review body for these conditions. (5) The Tribunal recommends to the Respondent that during the period of the suspension that he comply with the conditions on his registration currently imposed by the Medical Council of NSW (including random UDT). (6) The Respondent is to pay the applicant's costs of the proceedings unless within 14 days of publication of this decision an application is made for a different order. (7) That the interim non-publication order made in these proceedings pursuant to sch. 5D cl 7 of the Health Practitioner Regulation National Law (NSW) in respect of the name of the practitioner be made permanent save and except to the Medical Council of NSW and the Australian Health Practitioner Regulation Agency, and that a permanent non-publication order be made in respect of the names of nurses who testified in the proceedings. (8) That the interim order made pursuant to sch. 5D cl 7 of the Health Practitioner Regulation National Law (NSW) prohibiting the publication of the name of Dr A be made a permanent order in respect of the identity of such practitioner. Catchwords: Professional misconduct – Unsatisfactory professional Conduct - Medical practitioner failing to report drug consumption by fellow practitioner - medical practitioner consuming illicit drugs and misleading statutory inquiry - medical practitioner prescribing drugs for colleague - practitioner guilty of both professional misconduct and unsatisfactory professional conduct. Legislation Cited: Health Care Complaints Act 1993 Health Care Complaints Commission Act 1993 Health Practitioner Regulation National Law (NSW) New South Wales Civil and Administrative Tribunal Act 2013 No 2 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at [56] Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 HCCC v Gow [2008) NSW MT 3 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Health Care Complaints Commission v Safi [2017] NSWCATOD 26 Health Care Complaints Commissioner v BXD (No 2) [2015] NSWCATOD 135 Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408 Law Society of New South Wales v Walsh [1997] NSWCA 185. Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Prakash v HCCC [2006] NSWCA 153 Prothonotary of the Supreme Court of NSW v P [2003] NSW CA 320 Qasim Health Care Complaints Commission [2015) NSWCA Reimers v Medical Council of New South Wales [2015] NSWCATOD Spicer v New South Wales Medical Board & Ors (unreported, Thursday, 19/02/1981) Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) DAC (Respondent) Representation: Counsel: P Strickland SC (Complainant) P Dwyer (Respondent) Solicitors: Health Care Complaints Commission (Complainant) Avant Law (Respondent) File Number(s): 2016/00378757, 1620196 Publication restriction: Pursuant to sch. 5D cl 7 of the Health Practitioner Regulation National Law (NSW), the name of the Respondent save and except to the Medical Council of NSW and the Australian Health Practitioner Regulation Agency, 'Dr A', or the nurses who gave evidence are not to be published or broadcast without the leave of the Tribunal. reasons for decision 1. The Health Care Complaints Commission ("HCCC") has filed a Complaint against the Respondent who shall be referred to as 'DAC' for the reasons provided hereunder. DAC is a neurosurgeon. The Complaint has been made pursuant to sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and s.145A of the Health Practitioner Regulation National Law (NSW) ("the National Law"). There are in fact six complaints included in the final Further Amended Complaint which is relied upon before the proceedings in this Tribunal. 2. DAC does not dispute the majority of facts which are alleged that constitute each complaint. Accordingly, the Tribunal refers to such facts hereunder. Facts 1. The agreed facts are as follows: 2. DAC is a specialist neurosurgeon who is currently working at a public and private hospital in New South Wales. DAC qualified with MBBS from the University of NSW in 2001, and obtained a Fellowship of the Royal Australasian College of Surgeons in 2012. 3. In July 2012, DAC commenced work as a locum staff specialist neurosurgeon at Prince of Wales Hospital (POWH) and worked in that position until 23 February 2013, when his contract expired. He then had a break from work, until June 2013, when he was employed as a locum staff specialist neurosurgeon at a Public Hospital in New South Wales. 4. In September 2013, DAC commenced post-graduate Fellowship training in paediatric neurosurgery at the Hospital for Sick Children in Toronto, Canada and returned to Australia to resume work at a Public Hospital in New South Wales as a Spinal/Neurosurgical Fellow. 5. All work reports confirm that DAC performs with a high degree of clinical skill. There is no suggestion that his practice of medicine, or patient care or safety, have been compromised as a result of actions detailed in the complaints. 6. In February 2012, DAC met Dr A. DAC was then working at the Sydney Children's Hospital (SCH) as a (College-Accredited) Neurosurgical Registrar and Dr A was an unaccredited Neurosurgical Registrar at St George Hospital. They did not develop a significant friendship until July that year, after they both started working on the same day at the POWH, DAC in his first position as a locum staff specialist, and Dr A as a Neurosurgical Registrar. They quickly became close friends. Over the next 9 months, DAC and Dr A socialised out of work together, and worked as part of the neurosurgical team and were rostered together on some shifts. 7. Neurosurgical Fellowship (FRACS) training involves a program under the auspices of the Royal Australian College of Surgeons and the Neurosurgical Society of Australasia. The period of training is for a minimum of 5 to a maximum of 9 years. There are limited College accredited training positions. Therefore, practitioners aspiring to neurosurgery Fellowship may work in unaccredited training positions as a registrar to develop skills and knowledge in neurosurgery and to transfer to accredited positions, subject to examination success and performance appraisal. Neurosurgical registrars may be junior or senior, and they work closely with and are supervised by the consultant neurosurgeons within the Department. In some institutions, a registrar is under direct supervision from a consultant, in others there is a general pool of consultants and trainee doctors. In POWH, the system was a pooled or team system. DAC was one of the staff specialists with whom Dr A worked as a registrar. Dr Erica Jacobson was the Director of Training within the Department during the relevant period. Dr A's training position was a rostered Monday to Friday position, with an overtime component. 8. Between early October 2012 and 22 February 2013, on a number of occasions while they were socialising outside work and on weekends, Dr A and DAC consumed the drug gamma-hydroxybutyrate, known as GHB. 9. GHB is a water-soluble substance that is readily available on the street and has no legal use in Australia. It is usually taken orally in a drink. Common doses range from 0.5 to 5 grams. A volume measurement cannot be accurately converted into a dose as the concentration of the drug in the solution is unknown. In liquid form the maximum possible concentration is 750 mg/ml and the concentrations in illicit preparations are usually lower. 10. The effects of GHB are those of a central nervous system depressant and similar to alcohol. It may cause disinhibition, amnesia, confusion and anxiety. The effects of GHB are short acting and it is quickly eliminated from the body. At very high doses it induces sleep. Over dosage can result in coma and death. Dependence on GHB can occur rapidly resulting in withdrawal symptoms. These include anxiety, dysphoria, memory problems, insomnia, nausea and tremor. In severe cases GHB withdrawal can be life threatening. 11. DAC concluded work at POWH on 23 February 2013. He was unemployed for three months while he waited for a visa to travel to Canada to work (although he later did a three month locum from June to August 2013). Dr A continued to work at the POWH after 23 February and there is some evidence that he appeared to his colleagues to be tired and not coping as well as he had. 12. In early April 2013, DAC and Dr A had discussions that they had developed some dependency on GHB and needed to stop taking it. They discussed a plan to wean themselves off that drug, with the assistance of the pharmaceutical drug pregabalin (commercially available as Lyrica), a medication usually used to treat neuropathic pain. Although there was no romantic relationship between DAC and Dr A, it is evident that there was a deep emotional bond between the two, and DAC had developed an emotional dependency on the friendship. 13. From around mid-April 2013, Dr A took a week of leave from work and was due to return to work on 22 April 2013. 14. On 21 April 2013, Dr A was found deceased, having overdosed on self-administered heroin. The last phone calls made by the deceased were to a known heroin user and supplier. It is not suggested that DAC has ever used heroin or had any knowledge that Dr A was using heroin. 15. DAC's illicit use of the recreational drug GHB was detected as a result of the death of Dr A, an event which was unconnected to DAC. 16. On 1 May 2013, two members of the NSW Police Force attended on the home of DAC and informed him that Dr A had passed away. DAC was shocked and distressed at the loss of his friend. He spoke to the officers about his relationship with Dr A. DAC admitted to having consumed GHB with Dr A on occasions, and to having prescribed Lyrica to Dr A to help him withdraw and wean himself from the drug. 17. Text and WhatsApp communications between Dr A and DAC in April 2013 suggest that they considered they were both addicted to the drug GHB and were both attempting to complete detoxification, with the assistance of Lyrica. The evidence is that Dr A had continued to use a number of other illicit drugs that he did not disclose to DAC, including cocaine and heroin. 18. DAC has been monitored by a urine drug testing protocol imposed by the Medical Council of NSW on 17 July 2014. From May to August 2013, prior to going to Canada, he voluntarily participated in urine drug testing organised by Dr Olav Nielssen. The Complaints 1. The Tribunal will consider each of the complaints in turn. The Tribunal will also state DAC's response and then consider the evidence and make findings seriatim. Complaint 1 1. The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: 1. engaged in conduct that demonstrates the judgment or care 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; 2. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the particulars in themselves justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of these particulars are taken together, a finding of unsatisfactory professional conduct is justified. Background to Complaint 1 1. The practitioner obtained his MBBS in 2001 and attained Fellowship of the Royal Australian College of Surgeons (FRACS) on 5 July 2012. From January 2011 until July 2012, the practitioner completed his training as a senior neurosurgical registrar at POWH and Sydney Children's Hospital. 2. The practitioner met Dr A, a medical colleague, in or about February 2012. The practitioner and Dr A worked together at the hospital in late 2012 and in early 2013 up to 23 February 2013. Dr A was an unaccredited trainee in neurosurgery at the hospital assisting in surgery and working under the supervision of qualified neurosurgeons. The practitioner was a staff specialist consultant neurosurgeon at the hospital. 3. The practitioner formed an informal mentoring relationship with Dr A and they became close friends. The practitioner stopped working at the hospital on 23 February 2013 but kept in regular contact with Dr A, who continued working at the hospital, until about 20 April 2013. Particulars of Complaint 1 1. (1) Between about early October 2012 and 22 February 2013 the practitioner obtained and used illicit drugs including ecstasy, GHB, and cocaine in a social context on weekends. The practitioner's illicit drug use was improper and/or unethical and/or demonstrated a lack of judgment or care because: 1. the practitioner's position at the hospital meant that he may have been or was at risk of being called in at short notice to provide care to patients or advice to medical colleagues and nursing staff; 2. the practitioner's capacity to practise was at risk of being detrimentally affected due to the physical or psychological effects of the drugs or drug withdrawal when consumed in close temporal proximity to the performance of his clinical duties at the hospital. Respondent's Reply to Complaint 1 1. The respondent does not admit 1(a). 2. The respondent admits particular 1(b). 3. In relation to 1(b), the respondent admits that his illicit drug use during October 2012 and 23 February 2013 was improper or unethical or demonstrated a lack of judgment because his capacity to practise was at risk of being detrimentally affected due to the possible physical or psychological effect in close temporal proximity to the performance of his clinical duties at the hospital. 4. The respondent admits that this amounts to 'unsatisfactory professional conduct'. 5. The respondent does not admit professional misconduct. Consideration 1. The only ground challenged to Complaint 1 relates to the issue of whether the practitioner engaged in unsatisfactory professional conduct or professional misconduct because he may have been unable to have attended at the hospital at short notice as provided in particular 1(a). 2. The practitioner acknowledges that between early October 2012 and 23 February 2013 he consumed GHB between 6 and 9 times, mainly in a club setting and occasionally at someone's home. He also acknowledged occasionally using ecstasy and cocaine. The practitioner maintains he realised that he might have been called in at short notice to the hospital but states that he always made sure that appropriate arrangements were made for his patients and that if he was called in after he had recently consumed GHB, he would decline to attend the hospital or to provide medical advice. The practitioner likened his conduct to one who consumed alcohol. 3. The practitioner draws comfort from the cross-examination of Dr Rajesh Reddy, specialist neurosurgeon and currently Head of Neurosurgery POWH, when he acknowledged in his cross-examination that it was appropriate for neurosurgeons, as part of their social life, to be able to drink alcohol. When it was put to him that it was "not inappropriate or improper to be intoxicated on alcohol, in some circumstances?", Dr Reddy replied "In some circumstances". When asked what the circumstances were, Dr Reddy responded: "…Every surgeon has a different set of standards and codes that they follow and if I had done a complex operation, such as what we've discussed previously, then I would probably choose not to be socialising actively in the days after that, in the off-chance that something would happen." 1. Dr Reddy continued: "If I was planning on doing that, then I would be – I would delegate or I would request one of my colleagues to come up, be the on-call person, or someone else who might be more suited to looking after their case and I would probably make it clear to the Registrars that if something goes wrong that is the person to contact." 1. Dr Reddy confirmed that in those circumstances where the patient had been handed over, the professional obligations had been discharged. 2. There is no actual evidence of any arrangements made by Dr DAC for the weekends in the requisite period for another person to be nominated as his substitute. Quite apart from the lack of evidence of such alternative arrangements, the Tribunal rejects the attempt to equate the consumption of GHB, ecstasy and cocaine with alcohol. As an initial consideration, consumption of these 3 drugs is illegal, while consumption of alcohol is not illegal. Gamma-hydroxybutyrate (GHB) is described: "as a short-chain fatty acid that is an endogenous precursor and metabolite of gamma-aminobutyric acid (GABA). Systemically administered GHB can cross the blood-brain barrier, resulting in central nervous system mediated effects such as sedation, sleep, abnormal electroencephalogram, and anaesthesia." (See Journal of Clinical Psychopharmacology, Vol 35, No 3, June 2015, p.313.) 1. The evidence of Professor Olaf H. Drummer contained in his report of 13 January 2017 refers, inter alia, to the effect of GHB: "The drug is rapidly removed by the body with an apparent elimination half-life under 1 hour as mentioned by Professor Christie. In most situations the observable (acute) effects of GHB have dissipated within several hours, and often only a few hours with lower doses; however, there may be still some residual (metabolic and cognitive) effects that persist for some hours later that may be relevant for a practicing [sic] surgeon." 1. With respect to mixing cocaine with GHB, in answer to a question asked of him, Professor Drummer said: "I maintain that combined use of psychoactive drugs are more likely to increase overall adverse symptoms than counteract or reduce these particularly when it comes to fine motor skills required for surgery; although some individual symptoms may be attenuated, but the concept of using a stimulant such as cocaine to counteract the depressant effects of alcohol or GHB is not correct." 1. Professor James Bell provided a report concerning the use of GHB and an associated drug, GBL. He said: "GHB and GBL "G" can refer to two drugs, gamma-hydroxybutyrate (GHB) and gamma-butyrolactone (GBL), a precursor of GHB. The two drugs (GBH and GBL) have identical actions, although GBL is more potent and more rapidly-acting. GBH/GBL are drugs predominantly used by gay men attending clubs, and are often used in chemsex. The drugs produce relaxation, confidence and well-being, and are used for socialising, sleep, and sex. G drugs have a narrow therapeutic index, and overdose is not rare, which is why the drug is usually measured with an eye-dropper. For socialising and for sex, the usual dose of GBL is around 1-1.4mL. When used for sleep the dose is slightly higher, and induces prompt sleep for 3-4 hours, with no "hangover". Within clubbing circles, use of illicit drugs is normalised. Most users of G also use other party drugs – particularly cocaine or other stimulant drugs. Problems of acute toxicity from G are not rare, especially when the drugs are used in conjunction with other psychoactive drugs. Adverse events associated with GHB/GBL intoxication include amnesia, confusion, incoordination, dizziness, myoclonus, and reduced coordination (NEPTUNE 2015). Most users of GHB/GBL do not develop problems of dependence. Dependence on G is characterised by inability to abstain, continued use despite harm, and impaired social and occupational functioning. Dependent users often withdraw from friends and family and move in small circles of G-dependent friends. Absenteeism and job loss can occur (Bell, 2011)." 1. Dr Jonathon R. Ball, neurosurgeon and spinal surgeon, provided a report dated 17 February 2016 and provided oral testimony. He considered that the responsibility of a neurosurgeon was, as stated (5.2 of report): "A neurosurgeon has a "24/7" responsibility for the patients under their care, unless alternate arrangements have been made. The nature of neurosurgical conditions means there are often after-hour emergencies or complications that arise. The responsibility for the management of a patient admitted under the care of a neurosurgeon, remains with that neurosurgeon. Arrangements for colleagues to 'cover' for a neurosurgeon are often made for the purposes of leave, illness or special occasions. When 'on-call', a neurosurgeon has additional responsibility for new presentations and consultations regarding neurosurgical conditions." 1. In respect of the drugs consumed in the relevant period, Dr Ball stated (5.2 of Report): "Illicit drug use may impact on the safe practice of medicine through the direct effect of intoxication and/or the after effects of fatigue that may follow periods of intoxication. I am not in a position to comment on the physiologic and/or toxicological side effects of the amount of drugs taken by Dr DAC or the duration of any after-effects. I am not aware of what 'non drug use' periods existed between the intoxication and the work periods. I am not aware of what arrangements Dr DAC made for the care of his patients during periods of intoxication. In general terms, illicit drug use can be considered as a "health condition or impairment that could adversely affect your judgment, performance or your patient's health" according to the Code of Conduct. The appropriate management would therefore be to seek professional help and not rely on self-management. Additionally, I believe the majority of neurosurgeons would believe that the use of illicit drugs in close temporal proximity to periods of work would be inappropriate behaviour." 1. In answer to the question of arrangements that should be made following consumption of illicit drugs, Dr Ball stated (5.5 of Report): "Illicit drug use may impact on the safe practice of medicine through the direct effect of intoxication and/or the after effects of fatigue that may follow periods of intoxication. The impact of illicit drug use on safe practice would depend on the duration of intoxication effect, the duration of any after-effects/fatigue and the responsibilities of the affected practitioner at the time. As mentioned in the response to 5.2, a neurosurgeon often has ongoing responsibilities for their own patients even when they are not at work or on call. Arrangements for colleagues to 'cover' for a neurosurgeon are often made for the purposes of leave, illness or special occasions." 1. The Tribunal accepts the above evidence and finds that the attempt to equate the use of GHB or other illicit drugs as having a similar effect to alcohol is misplaced. The composition of illicit drugs, their strength and effects are unknown and are not predictable. 2. The Tribunal notes the practitioner's admission that during the relevant period he suffered from "substance abuse disorder". In view of this concession and of the unchallenged facts, the Tribunal considers that the conduct engaged in by the practitioner, albeit on a social occasion, conflicted with his professional duties as a neurosurgeon. In the absence of any known arrangements having been made for a substitute to the practitioner to care for his patients, the risk existed that the practitioner may have been called in on an emergency. In view of the drug-affected condition in which he placed himself, he would not have been able to perform any responsible function, nor even give advice by telephone. 3. The Tribunal concludes that such conduct fell below the standard required of a neurosurgeon. Accordingly, the Tribunal concludes that particular 1(a) has been established. Acknowledgment of Particular 1(b) 1. The practitioner admits his conduct as alleged constitutes unsatisfactory professional conduct. The Tribunal is satisfied that the practitioner's use of GHB, cocaine and ecstasy detrimentally affected his capacity to practise due to the physical and psychological effects of the drugs demonstrates unsatisfactory professional conduct. In this regard, the examination of Professor Bell is instructive when he said: "…would regard that as very risky drug use. It runs the risk that when you get back to work on Monday you're not perhaps quite as sharp, you risk depletion of neuro transmitters, that's what happens after binges that involve cocaine particularly… …because you're becoming focused on drugs as a primary source of reward, if you like, in life and which is one of the hallmarks of dependence. And it happens to people quite unexpectedly. My experience with GBL and GBH users is that they're people who don't think of themselves as addicts, they have jobs, degrees, relationships, but suddenly find that they can't live without G and that's the risk." 1. The practitioner has admitted that he was affected by his consumption of drugs during the relevant period. Professor Drummer referred to the dependence on GHB as follows: "Dependence to the drug can occur rapidly resulting in withdrawal symptoms when the drug is withheld after repeated use. These include anxiety, dysphoria, memory problems, insomnia, and nausea, and can lead to tremor, seizures, agitated psychosis, and even delirium." 1. Professor Drummer stated that the withdrawal phase can last for months. He also stated: "In a person who has become dependent on a drug, one would expect a withdrawal phase – reaction by the body to seek more drugs. Withdrawal states, e.g. GHB, will adversely affect human performance, particularly the ability to concentrate and perform fine motor and complex cognitive functions." 1. Taking into consideration the wilful consumption of drugs by the practitioner, which was inconsistent with his obligations as a neurosurgeon, the Tribunal finds that such conduct constituted unsatisfactory professional conduct. Complaint 2 1. (2) The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: 1. 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; 2. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the particulars in themselves justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of these particulars are taken together, a finding of unsatisfactory professional conduct is justified. Background to Complaint 2 1. As for Complaint One. Particulars of Complaint 2 1. Between about early October 2012 and 22 February 2013 whilst the practitioner and Dr A were both working in the neurosurgery department at the hospital, the practitioner was aware that Dr A was using illicit drugs including gamma-Hydroxybutyrate acid (GHB), ecstasy and cocaine. During that period, the practitioner's: 1. Use of illicit drugs with Dr A in a social context on weekends; 2. failure to encourage Dr A seek professional help concerning the risk Dr A may pose to his patients or himself by his illicit drug use; 3. failure to encourage Dr A to participate in a professional treatment program; 4. failure to notify Dr A's superiors at the hospital of Dr A's drug use, was improper and/or unethical and/or demonstrated a lack of judgment or care. Respondent's Reply to Complaint 2 1. The respondent admits the facts of particulars (a) to (d). 2. The respondent does not admit Complaint 2. 3. At the relevant time he did not think it was necessary for him to engage in a professional treatment program to deal with weekend recreational drug use. Practitioner's Submissions 1. The practitioner accepts that his own conduct in using drugs in a social context in the relevant period was improper and he has expressed genuine remorse for such action. He has also expressed regret at having used drugs in a social setting with Dr A. The practitioner recognises that because he was in a more senior position, such conduct was inappropriate. 2. The practitioner notes that initially the complainant had alleged that the practitioner was duty-bound, pursuant to ss.140 and 141, to report Dr A, but such complaint did not proceed. Instead, the allegation was made as currently framed, namely that the conduct constituted unsatisfactory professional conduct or professional misconduct. Whilst the Tribunal does not know the motivation for altering the complaint, the Tribunal notes that s.141 requires a reporting where a registered health practitioner forms a reasonable belief that the other registered health practitioner has behaved in an untoward manner "in the course of practising the first health practitioner's profession…". In the present circumstances, events surrounding Complaint 2 do not necessarily relate to that concept, but rather from the acknowledged facts gleaned in circumstances not arising from "the course of practising…". 3. The hearing of the complaints extended over 9 hearing days during which a vast amount of evidence was placed before the Tribunal. The Tribunal has been provided with a series of text messages sent from the practitioner to Dr A and from Dr A to the practitioner and also a series of "WhatsApp" messages passing between the two practitioners. Often the language used in the text messages is base, salacious, personal and crude. They describe the unconditional infatuation which the practitioner had for Dr A. The responses from Dr A do not indicate any such level of infatuation but do indicate that the two practitioners had formed an unusual relationship. 4. The relationship had developed particularly from approximately October 2012 and, subject to a period of approximately one month in or about March 2013, remained until the death of Dr A on 21 April 2013. The Tribunal does not consider it necessary to refer in detail to the messages. However, the significance of the messages lies in the fact that the practitioner, who was a consultant at the POWH, occupied a position of consultant, whereas Dr A was more junior, namely a neurosurgical registrar. The role of the practitioner should have been as mentor to the more junior neurosurgeon. As such, the practitioner, according to the publication entitled Good Medical Practice: A Code of Conduct for Doctors in Australia ("the Code of Conduct") specifically addresses the minimisation of risk where another's performance is suspected of being at risk. Pursuant to the Code, a practitioner is obliged to draw any such risk to the attention of the appropriate authorities (see 6.2 and 6.3 of the Code of Conduct). 5. Such matter was specifically commented upon by Dr Ball when he observed in his written report dated 4 February 2017: "While there is not a mandatory notification requirement in this situation, the presence of a mentoring relationship would lead to the existence of a duty of care for our colleagues and those under our supervision. This is outlined in several sections of the "Medical Board of Australia Code of Conduct for Doctors in Australia" – 4.4.5 Acting as a positive role model for team members, 6.3.4 Taking steps to protect patients from risk posed by a colleague's conduct, practice or ill health, 6.3.5 Taking appropriate steps to assist your colleague to receive help if you have concerns about a colleague's performance or fitness to practice, 6.3.6 If you are not sure what to do, seeking advice from an experienced colleague, your employer, doctors' health advisory services, professional indemnity insurers, the Medical Board of Australia or a professional organisation. 9.3.3 Encouraging a colleague (whom you are not treating) to seek appropriate help if you believe they may be ill and impaired. If you believe this impairment is putting patients at risk, notify the Medical Board of Australia. It may also be wise to report your concerns to the doctor's employer and to a doctors' health program." 1. The Tribunal is satisfied that the practitioner owed, as his primary duty, a duty to patient care. Knowing that Dr A was consuming illicit drugs as specified in the complaint, it was incumbent upon him to report Dr A. The Tribunal is mindful of the evidence of Professor Bell, referred to in respect of the previous complaint that the risk that drugs of the kind consumed would continue to have an effect in days following their consumption puts patients potentially at risk. 2. There is also evidence that other medical specialists noted a deterioration in the performance of Dr A at this time. For example, Dr Erica Jacobson, neurosurgeon employed as the Clinical Supervisor for all trainees at POWH at the relevant period observed of Dr A: "2. [Dr A] is a registrar. He is essentially the frontline of our department. He manages the patients under our guidance. He assists in surgery. The scope of surgery includes brain and spine. 3. In the last 4 months or so he was having problems with insomnia and his work performance dropped off. He would take spontaneous days off and uncharacteristically silly mistakes [sic]. He looked tired and terrible. He looked dreadful in the face and I thought he might have been sick." 1. Dr Jacobson questioned Dr A concerning his state and Dr A informed her that he had insomnia, and that at one stage he had not slept in five days. Dr Jacobson told him to seek medical advice and to take time off. 2. In the relevant period, another person noticed Dr A's drug consumption. Ms B, a nurse, informed the New South Wales Police that she met Dr A in October 2012 for the first time socially outside of work hours. She stated that doctors and nurses would socialise also in the crowd and that the venues were "gay venues". She stated it was "the gay Doctors and some of the female nursing staff who formed this social group". 3. On this occasion Ms B noticed Dr A take two ecstasy pills although she stressed that Dr A was not gay, nor did he attend gay venues previously. She was also aware that he would consume cocaine. 4. In view of the admissions made by the practitioner that Dr A was consuming illicit drugs, which is confirmed by the content of the text messages and WhatsApp messages, the Tribunal considers that the conduct constitutes a finding of unsatisfactory professional conduct. The Tribunal is satisfied that the practitioner was so overcome with his affection for Dr A that he subverted his responsibility to notify Dr A's superiors when there was a clear risk that patients could be exposed to potential harm. The Tribunal considers such failure by the practitioner to so notify as egregious conduct especially since the practitioner was a mentor of Dr A. Complaint 3 1. The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: 1. engaged in conduct that demonstrates the knowledge or 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; 2. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the particulars in themselves justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of these particulars are taken together, a finding of unsatisfactory professional conduct is justified. Background to Complaint 3 1. As for Complaint One. Particulars of Complaint 3 1. From 10 March 2013 to 15 April 2013 the practitioner failed to encourage Dr A to seek professional help in circumstances where: 1. In or around March 2013 the practitioner prescribed and/or supplied Dr A with Temazepam (amended orally on 13.3.17, T36.24); 2. on 8 April 2013 the practitioner prescribed and/or supplied Propranolol to Dr A; 3. the practitioner knew that Dr A was addicted to GHB; 4. the practitioner knew that Dr A had been using GHB regularly from at least February 2013; 5. the practitioner knew that Dr A was suffering from physical and/or mental symptoms which Dr A attributed to his GHB use and withdrawal. 1. On 9 April 2013 the practitioner received WhatsApp and text messages from Dr A which strongly suggested that Dr A had taken GHB that day while he was working at the hospital on neurosurgical cases. The practitioner failed to notify Dr A's superiors at the hospital or any health practitioner authority on or shortly after 9 April 2013 about Dr A's drug use and the risk Dr A may have posed to himself or his Persons [sic: patients] due to his use of GHB. 2. On or shortly after 9 April 2013 the practitioner failed to encourage Dr A to seek professional drug withdrawal treatment. 3. On or shortly after 9 April 2013 the practitioner failed to notify any professional medical or health practitioner authorities concerning Dr A's drug use and the risk Dr A may have posed to himself or his patients due to his use of GHB. Respondent's Reply to Complaint 3 1. The respondent admits particular 1. The respondent did encourage Dr A to seek professional help during the relevant period, 10 March to 15 April 2013. The respondent acknowledges that he did not encourage him strongly enough to do so given the particulars admitted. With respect to the sub-particulars: 1. The Respondent admits that he has a recollection of writing one script for Temazepam in March 2013. This complaint originally read 10 March 2013, and the respondent could not admit to writing a prescription on that date. The complaint was amended orally on 13.3.17. 2. The respondent admits that he prescribed Propanolol to Dr A. 3. The Respondent admits that he knew Dr A was addicted to GHB. 4. The Respondent admits that he knew Dr A had been using GHB regularly from at least February 2013. 5. The respondent admits that he knew that Dr A was suffering from physical and/or mental symptoms which Dr A attributed to his GHB use and withdrawal. 1. The respondent does not admit particular 2. The respondent did not read the text message dated 9 April 2013 as suggesting that Dr A had taken GHB that day while he was working, although he acknowledges that he should have been aware of that possibility. The respondent points to the fact that his own judgement was impaired at that time, and his judgement was affected by the fact that he had had numerous conversations with Dr A about not using drugs at work. 2. The respondent admits particular 3. 3. The respondent admits particular 4, and that to fail to notify his superiors at that time was unethical or improper. He did not believe that Dr A posed a risk to his patients but he acknowledges that he should have done. 4. The respondent admits Complaint 3. He admits that on the basis of particulars (1), (3) and (4), his conduct amounts to 'unsatisfactory professional conduct'. He does not admit that it amounts to professional misconduct and points to his own level of impairment throughout this period. Respondent's Submissions 1. In substance, the respondent admits that he issued prescriptions to Dr A of Temazepam and Propranolol as alleged whilst he knew that Dr A was addicted to GHB and that Dr A had been so addicted since about February 2013. The practitioner further knew that Dr A was suffering from withdrawal symptoms. 2. The practitioner also admits that he did not encourage Dr A to seek professional drug assistance and admits that he did not notify the appropriate authorities of Dr A's condition. 3. The non-admission by the practitioner relates to whether he was aware that Dr A was taking drugs while at work. The practitioner maintains that he had several conversations with Dr A to the effect that drugs would never be taken in those circumstances. However, the evidence establishes that on 9 April 2013 the following text messages were sent by Dr A to the practitioner: 1. At 1:37pm Dr A sent a text to the practitioner as follows: "0.8ml so far today. Not unhappy with that. Just did a 4hr case with Ralph [Dr Mobbs] and fid [sic: did] well. Writing op report now instead of running to the bathroom." 1. At 1.50pm Dr A sent a text message to the practitioner stating: "Thanks man, how much you had today [sic]? I just had 0.5. Not unhappy with that." 1. The practitioner responded: "I had none at first, then just had 1.5. Bit annoyed by that, but I was just feeling too miserable." 1. At the time Dr A sent his message indicating that he had "just had 0.5" the records show that he had completed assisting in surgery. Further, the practitioner must have known that the message was sent by Dr A from the hospital and it is not disputed that 0.5 relates to 0.5ml of GHB. 2. Later that day, at 2008 hours, Dr A sent a text message to the practitioner as follows: "I had another ml post op. My legs are begging for more but my neck is killing. Baclofen has been a great help. Total for the day is 2ml. Not bad." 1. The practitioner replied: "Awesome man. That is awesome. Did you spread the news you are taking next week off?" 1. The practitioner made no enquiry of Dr A of the time when he consumed the difference between 0.5 and 1.5ml. However, there is another message which immediately follows which overwhelmingly establishes that Dr A was, in all probability, consuming GHB at work. In response to the practitioner's reply (which was sent at 2009 hours), Dr A responded at 2012 hours: "Didn't really get a chance, was in theatre all day and didn't see anyone." 1. For the practitioner to maintain that he did not appreciate, in spite of these messages, that Dr A was consuming GHB while at work is simply incredible. The Tribunal does not accept such version as portrayed by the practitioner. Not only is the Tribunal satisfied that the practitioner was aware of those circumstances, but it is also satisfied that in those circumstances particular 2 is satisfied. 2. In answer to the whole of Complaint 3, the Tribunal is satisfied that the conduct of the practitioner amounts to unsatisfactory professional conduct. Complaint 4 1. The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: 1. engaged in conduct that demonstrates the knowledge or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; 2. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the particulars in themselves justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of these particulars are taken together, a finding of unsatisfactory professional conduct is justified. Background to Complaint 4 1. As per background in Complaint One. Particulars of Complaint 4 1. From 10 March 2013 to 10 April 2013, the practitioner inappropriately prescribed and/or supplied Dr A with Temazepam in circumstances where he: 1. was aware or ought to have been aware that Dr A was addicted to GHB; 2. did not have sufficient clinical experience treating insomnia in adults; 3. was in a close personal relationship with Dr A contrary to Part 3.14 of the Medical Board of Australia's Code of Conduct; 4. was himself regularly using GHB at that time and as such his professional judgment was likely to be impaired as a result of his own drug use. 1. On or about 15 April 2013, the practitioner inappropriately prescribed and/or supplied Dr A with Pregabalin to address Dr A's addiction to GHB in circumstances where the practitioner: 1. Did not have sufficient experience with addiction medicine; 2. Was in a close personal relationship with Dr A contrary to Part 3.14 of the Medical Board of Australia's Code of Conduct. 3. Was himself regularly using GHB at that time and as such his professional judgement was likely to be impaired as a result of his own drug use. Respondent's Reply to Complaint 4 1. The respondent admits particular 1. 2. The respondent admits particular 2. 3. The respondent admits Complaint 4. He admits that on the basis of particulars (1) and (2), his conduct amounts to 'unsatisfactory professional conduct'. He does not admit that it amounts to professional misconduct and points to his own level of impairment throughout this period. Respondent's Submissions 1. The practitioner points out that there is an overlap in the particulars as the same issues arises under Complaint 3. However, the practitioner acknowledges issuing the prescriptions and readily admits that it was inappropriate for him to prescribe such drugs. He states that he was unaware of the Code of Conduct provisions and notes that the Code does not specifically prohibit prescribing or providing treatment "to those close to you". The practitioner, however, acknowledges that he had no expertise in addiction medicine but is an experienced medical practitioner. He states that he accepts responsibility for such prescriptions. The practitioner submits that he himself was impaired throughout the period from March to April because of his own addiction to GHB. The practitioner submits that Dr A was dominant in their personal friendship; that Dr A was an experienced drug user and Dr A introduced the practitioner to GHB in October 2012. The practitioner also states that Dr A diagnosed the practitioner as having an addiction to GHB in April 2013. Further, it is submitted that Dr A notified the practitioner of his own withdrawal scheme involving the use of Pregabalin and Baclofen. 2. The practitioner submits that it is obvious from the text and WhatsApp exchanges that the practitioner had become emotionally dependent upon Dr A for advice on how to withdraw and accepted such advice. It is stated that it is "in that context that he wrote two prescriptions for drugs for his friend and it cannot be that two prescriptions, even in this circumstance, amounts to conduct that is so far below standard as to justify a finding of professional misconduct…". Consideration 1. The Tribunal is unable to assess the true number of prescriptions written by the practitioner for Dr A. The Tribunal notes, however, that in the text messages on 8 April 2013 Dr A sent the following message to the practitioner: "Yeah I guess, long lasting. Can you do another script for Temaz tonight yule?" 1. Such message was sent at 10.52pm. 2. The practitioner replied at 10.53pm: "Of course my brother." 1. The remainder of the message has been redacted and the Tribunal is therefore unable to see what further message was sent. 2. The Tribunal notes the practitioner claimed that he prescribed Temazepam from 10 March to 10 April 2013 to Dr A, which he did for the treatment of Dr A's insomnia and not for his GHB withdrawal. The respondent conceded that such prescription was "extremely inappropriate". 3. Following the death of Dr A, police located a packet of Temazepam at Dr A's premises and the label shows that the practitioner was the person to whom the prescription was issued and is dated 10 March 2013. The practitioner denies having provided such package to Dr A. Whether the package was supplied to Dr A on that day is uncertain, but the text messages show that both the practitioner and Dr A were in close geographic proximity. Irrespective, the Tribunal is satisfied that the prescription was highly inappropriate in the following circumstances. 4. The practitioner maintains that during the period from the end of February until the end of March 2013 he had "absolutely no knowledge" of Dr A's drug use. Such assertion is incredible in view of the extent of contact between the two during this period as evidenced by the text messages and WhatsApp messages; the sharing between the two of illicit drugs and the unusually close relationship which had been created in the preceding period. There is other evidence which shows that the practitioner was aware. The nurse, Ms B, who is referred to previously, recalls the social event in October which she attended with the practitioner, Dr A and others where she observed Dr A taking ecstasy. Such conduct is supported by another registered nurse, Ms C. She testified that in October 2012, Dr A was in a group which included Ms B and the practitioner. She said: "The drug activity for each of us included taking one or two pills (of ecstasy) and snorting lines of cocaine." 1. Taking into consideration that the practitioner was not qualified or experienced in the prescription of such medications, nor is there any evidence that he gave any consideration to the harmful effects of a combination of one or more of those drugs prescribed when he knew that Dr A was taking GHB, the Tribunal concludes that such conduct constitutes unsatisfactory professional conduct. Accordingly, Complaint 4 is established. Complaint 5 1. The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has: 1. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the particulars in themselves justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of these particulars are taken together, a finding of unsatisfactory professional conduct is justified. Particulars of Complaint 5 1. At a hearing of the Medical Council of NSW under section 150 of the National Law on 17 July 2014, the practitioner stated that to his knowledge, Dr A had never used GHB in the workplace, when the practitioner knew this evidence to be false or misleading or he was reckless as to the truth of the evidence. 2. At such hearing, the practitioner stated that when he was using GHB, he did not notice any particular withdrawal effects in terms of a change in mood and that the medication had stopped working, when the practitioner knew this evidence to be false or misleading or he was reckless as to the truth of the evidence. 3. In his interview with the Health Care Complaints Commission pursuant to section 34A of the Health Care Complaints Commission Act 1993 on 16 December 2014, the practitioner stated words to the effect that "there is no doubt in my mind that Dr A would not do drugs at work", when the practitioner knew this evidence to be false or misleading or he was reckless as to the truth of the evidence. Respondent's reply to Complaint 5 1. The respondent does not admit Complaint 5. 2. The respondent does not admit any of the particulars that make up this complaint. Consideration 1. This complaint is substantially different from the previous complaints in that it relates to an entirely different subject matter. 2. A hearing was conducted by the Medical Council of NSW pursuant to s.150 of the National Law on 17 July 2014. The practitioner told the Tribunal that he did not observe any withdrawal symptoms from his use of GHB. He said: "I personally, when I was using GHB, didn't notice any particular withdrawal effects in terms of a change in my mood or other than the medication stopped working … making me feel…" 1. The text messages passing between the practitioner and Dr A revealed a different situation. On 11 April 2013 the practitioner wrote to Dr A: "Got the crazy leg pains … just gonna ride it out." 1. The message was sent at 11 minutes past midnight. On the same day, the practitioner sent a message stating: "…I am a bit struggskies. The container I took with me last night didn't have a lid on properly and it all leaked out." 1. The practitioner acknowledged that the container contained GHB and that he was endeavouring to administer it rectally. He did this to obtain a rapid and increased effect of GHB. 2. On 12 April 2013 another message was sent in response to a message from Dr A. Dr A stated that he: "Woke up with the draws this morning. 2 Lyrica, no Baclofen, gonna try push through." The practitioner responded: "F… me too. Struggskies." Dr A: "Your symptoms?" Practitioner: "Anxious as F…. Scratchy. Restless." 1. At 1340 hours on the same day the practitioner referred to the fact that he was: "hurting like F… but trying to divert myself". Dr A responded after a short interlude "Shame cuz I know your pain". Later on the same day the practitioner responded, "…I have been really okay. Not today. Really not coping." Shortly thereafter he sent another message: "Not sure what to do. Just gonna try and keep pushing on." 1. On 13 April at 1338 hours the practitioner sent the following text to Dr A: "…Could I maybe swing by for some G (just a bit)?" At 1354 hours the practitioner wrote: "Hey bruz, I am suffering." Later on the same day at 1642 hours Dr A sent the following message: "I know duh. I mean how are you doing as it trails off?" The practitioner responded: "I am pretty much screwed." Later on the same day at 2133 hours the practitioner wrote: "Withdrawskies at bay. Otherwise the same. Pretty miserable." 1. On 14 April the practitioner sent the following text at 2332 hours: "Couldn't sleep. All F… up. Went and got G from Dan on credit. Much better now. Will start winning tomorrow." 1. On 15 April 2013 the practitioner wrote to Dr A: "I realise it is the G that makes me upset like this. I have known it for months. I need your help to fix it. I need your support. No one knows." 1. There are numerous other messages which graphically show that the practitioner understood that he was suffering from the effects of GHB. The Tribunal will not recite all of them, but for example, one such message sent on 16 April 2013 reads: "For months I have struggled to understand my appalling behaviour, these mood swings that have come out of nowhere. Admitting that this was the cause has been the hardest but best thing I ever did … all due to G. Crazy." On the same day at 17.26 the practitioner sent another message: "I am sorry, I know you are sleeping. I am withdrawing like a motherfucker and I don't know what to do. I want to had (sic: have) 2.5 so badly." 1. Against this evidence, the Tribunal is satisfied that the practitioner did suffer from withdrawal symptoms and that he misled the section 150 inquiry by denying any withdrawal symptoms. 2. The Tribunal now addresses the information provided to the interview held pursuant to s.34A of the Health Care Complaints Commission Act 1993 on 16 December 2014. During the course of that hearing the practitioner said: "[Dr A] was doing this longer than me. He had already taken Baclofen and Lyrica. When he first said he was taking G after he had come home from work [sic]. I have to say too that we talked all the time about the importance of this and not having any relationship to work. He would not be intoxicated at work and certainly would not have any during work." 1. The Tribunal has referred already to the text messages which clearly indicate that Dr A was consuming GHB at work: see extract of texts at [77]-[82]. The Tribunal does not accept that the practitioner was so impaired throughout this period that he did not recognise the clear effect of the message. In the circumstances, the Tribunal finds that the practitioner misled the inquiry. The Tribunal also notes that the practitioner provided inconsistent evidence with regard to his use of GHB rectally. 2. The Tribunal finds that the conduct of the practitioner constitutes unsatisfactory professional conduct in respect of Complaint 5. Complaint 6 1. The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. Background to Complaint 6 1. As per background in Complaint One. Particulars of Complaint 6 1. Complaints One to Four and the particulars thereof are repeated and relied upon both individually and cumulatively. Respondent's reply to Complaint 6 1. The respondent does not admit Complaint 6. Consideration 1. This complaint, in substance, encompasses the complaints referred to in 1-5. Again, the practitioner maintains that because he was impaired, due to his own drug addiction, he is not responsible. 2. The Tribunal has heard disturbing evidence, much of which centres upon the use of drugs by the practitioner and by Dr A. The Tribunal has also heard alarming evidence suggesting the widespread consumption of drugs both by qualified medical practitioners and by nursing staff, albeit such incidents occurred (subject to those already referred to) in social settings. The evidence establishes that at least four staff of a single hospital consumed drugs together outside of the hospital and outside of work hours. The Tribunal will request that the Registrar forward a copy of these reasons to the New South Wales Minister for Health. The Tribunal's concern relates to the potential danger to patients as a result of the residual effects of drugs taken by practitioners and nursing staff. 3. Particularly with respect to the practitioner, it is clear that he was at pains, during the section 34A interview, to downplay drug use and that of Dr A. He told the interview: "As I've said in multiple forums now … he [Dr A] would never do drugs at work. It was stupid and dangerous. There is no doubt in my mind he would not do drugs at work or be drunk at work." 1. As already considered, the Tribunal finds such answers to be untruthful in view of the text messages passing between the practitioner and Dr A. But there are other disturbing features of the practitioner's conduct which we will summarise as follows: 1. At a social event at [an] Hotel, Dr A became unconscious and fell. A security guard offered to telephone an ambulance which the practitioner promptly rejected. The inference can be drawn that had an ambulance been called, Dr A would have been admitted to hospital where the drug use of not only himself but also the practitioner is likely to have been exposed. 2. The practitioner agreed to delete the WhatsApp messages passing between himself and Dr A at Dr A's request. The messages were only recovered by the police during investigations into the death of Dr A. 3. The practitioner stated, following Dr A's death, that he would cooperate with the police in all ways. However, he did not proffer the address of the drug dealer who supplied drugs because, he says, the police did not ask him for it. 4. Following a police interview with one of the nursing staff, the practitioner learnt that she had provided a written statement. The practitioner criticised the nurse for providing such a statement. 5. The practitioner stated that he had not noticed anything unusual about the conduct of Dr A. However at least two other medical practitioners noticed that the performance of Dr A had deteriorated markedly in the early part of 2013, so much so that he was noticed to make silly mistakes. It caused Dr Jacobson to suggest to Dr A that he should take a week off to rest. 1. All of these incidents satisfy the Tribunal that the practitioner has done his utmost to conceal his drug taking and that of Dr A. The only explanation proffered by the practitioner is that he was so totally infatuated by Dr A that he was, together with the consumption of GHB, impaired. The Tribunal rejects such submission. 2. The Tribunal adopts the observations of Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200 where his Honour said: "[T]he statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner. …" 1. The Tribunal considers that the remarks aptly attach to the conduct of the practitioner and the Tribunal concludes that Complaint 6 constitutes professional misconduct. Disciplinary Action (A) Practitioner's Expertise 1. The Tribunal has been provided with references which demonstrate that the practitioner has outstanding talent and is an excellent neurosurgeon. References have been provided by Dr James T. Rutka of the Division of Neurology of the Hospital for Sick Children in Toronto. The letter refers to the practitioner as being "an outstanding Neurosurgeon". It states that the practitioner: "…took charge of the Paediatric Neurosurgery service on several occasions when our Chief Paediatric Neurosurgery Fellow was absent or away. He quickly stepped up to the plate on these occasions and ran the service like a master." 1. The letter refers to the fact that the practitioner performed complex paediatric neurosurgical cases "at the highest level possible". 2. The letter does not state that the author is aware of the complaints made against Dr DAC, who worked at the hospital in 2013. 3. Dr Ralph Mobbs has provided both written and oral testimony. He confirms as follows: "My opinion of Dr DAC professionally is that he is of a high standard with regards to his neurosurgical knowledge, technical prowess, patient interaction and with his professional interaction with colleagues." 1. Dr Erica Jacobson (referred to above) has also referred to Dr DAC's excellence as a neurosurgical doctor and of his particular kind and caring nature towards patients and parents. 2. Dr Jacob Fairhall, neurosurgeon, provided both a written and oral testimony. He expressed disappointment at the conduct of the practitioner but stated: "His clinical knowledge and judgment were excellent. His surgical outcomes were comparable to all his peers. He developed good rapport with both medical and paramedical staff." 1. Dr Andrew Kam, neurosurgeon and spinal surgeon, has provided a written statement. He considers Dr DAC to be of good character "despite his recent indiscretions…". 2. Dr Mitchell Hansen has provided a statement. It acknowledges that he is aware of Dr DAC's conduct and states that his "performance as a neurosurgeon is exemplary. He is known to be safe and very conscientious by his colleagues. There is no concern for his insight or work ethic by them." Dr Hansen expressed the opinion that he did not believe that any restrictions on his practice were necessary. 3. The Tribunal carefully considered the positive and supportive references from neurosurgical colleagues which have been detailed above. However, these contrasted markedly with evidence that was heard at the Tribunal hearing. The private messages passed between the practitioner and Dr A displayed a very different portrayal of the practitioner. Such evidence caused the Tribunal to be concerned that the references provided for the practitioner were based on an incomplete understanding and knowledge of his conduct and the potential impact that this conduct could have had on his professional obligations. 4. The practitioner acknowledged that he had suffered from severe substance use disorder. This was consistent with evidence from his treating psychiatrist, Dr Nielssen, his Council-appointed practitioner, Dr Fisher and expert evidence provided by Professor James Bell (Addiction Medicine Specialist). 5. The practitioner abused cocaine, GHB and MDMA in a period from October 2012 to February 2013 in a pattern acknowledged by his treating psychiatrist, Dr Nielssen to be representative of a substance use disorder. 6. During April 2013, there was evidence that the practitioner's use of GHB had escalated to the point that he was severely impaired by his addiction to GHB and benzodiazepines combined with abuse of alcohol. Professor Bell noted that the practitioner had misguidedly attempted to use alcohol to assist in GHB withdrawal. The Tribunal accepts that the evidence is overwhelming that the practitioner had suffered from a severe addictive disorder in April 2013. 7. The Tribunal accepted evidence from Dr Nielssen that from 2014 the practitioner had remained abstinent from addictive substances except alcohol. 8. The Practitioner stated that he had not engaged in group therapy, meetings of Doctors in Recovery, meetings of Narcotics Anonymous (NA) or received treatment by an Addiction Psychiatrist/Addiction Medicine Specialist. He reported that he had received extensive therapy but had not seen his drug and alcohol counsellor or Dr Nielssen more frequently than yearly over the past two years. The Tribunal heard evidence that the practitioner considers that his risk of relapse to addictive substance use is extremely low, if not absent. The rationale proposed for this low risk is the negative consequences experienced in his previous episode of addictive disorder in 2013. The Tribunal considers that this demonstrates limited insight on the part of the practitioner with respect to the potential risk of relapse to addictive disorders. 9. The lack of insight with respect to the severity of the practitioner's addiction is starkly revealed by the message he sent to Dr A saying that he had "taken 8 zannies" (Alprazolam, Xanax). The practitioner attempted to resile from the accuracy of the statement saying it was an exaggeration to gain attention. Taking such medications in such doses with alcohol represents the severity of his addiction. The combination of alprazolam and alcohol is significantly dangerous. 10. In the Written Reasons for Decision of the Proceedings under Section 150 dated 3 September 2014 it was noted: "In the Delegates' view Dr DAC's use of GHB represents a serious and ongoing addiction to this drug. Dr DAC will always have a high risk of relapse in relation to this or other drugs. In the Delegates' view this constitutes a significant impairment. The Delegates are troubled by Dr DAC's conviction that his past drug use does not amount to an addiction and therefore is not as significant problem as the Delegates consider it to be…he does not appear to have a full appreciation of the seriousness of the situation. This lack of insight is of concern to the Delegates…" (p.11) 1. The Tribunal accepts that addictive disorders are chronic, relapsing conditions and without treatment, it is considered by the Tribunal that the practitioner is at high risk of relapse. The practitioner has been reported to have maintained abstinence in a period in which he has been contained by conditions imposed by the Council. It is probable, that with no ongoing treatment combined with his limited insight, the practitioner would relapse to substance abuse on removal of conditions on his registration. Therefore, the Tribunal considers it necessary to impose conditions on the practitioner's registration that would prompt the practitioner to seek further treatment of his addictive disorders with a view to developing insight in the need for ongoing treatment and abstinence from all addictive substances. 2. The Tribunal does not consider that the suggestions made by the HCCC are sufficiently tailored to meet the requirements for public protection. Accordingly, the Tribunal has altered the conditions to ensure, as far as possible, that the public are protected. (B) Consideration 1. The Tribunal is mindful of the excellence of the practitioner in his profession and of the love he expressed for his work. The Tribunal accepts that the practitioner is an entirely dedicated and competent neurosurgeon. The Tribunal is also conscious that there is no suggestion that any patient has been prejudiced in their care or treatment by Dr DAC. Further, Dr DAC has been engaged in surgery throughout the period from 2014 to the present, namely three years, whilst these proceedings have been prepared for hearing. 2. The Tribunal's task is to determine whether the practitioner is a fit and proper person to retain the privilege of being a medical practitioner. The jurisdiction of the Tribunal is not punitive, but rather is protective. Its role is to ensure that those who seek the services of a medical practitioner will not be exposed to untoward conduct. By analogy to those who practise as qualified lawyers, where a departure from the high standard required of those engaged in their profession occurs, it is the function of the Law Society to mark the seriousness of the practitioner's conduct: see Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408 at 441. Action is required by the relevant licensing authority to protect the public from further transgression: see Law Society of New South Wales v Walsh [1997] NSWCA 185. 3. In considering the extent of any disciplinary action, the Tribunal must consider whether the practitioner is a "fit and proper person" to practise. Such definition was considered and explained by the High Court of Australia in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at [56] where Toohey and Gaudron JJ said (inter alia): "However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question." 1. The observations of the New South Wales Court of Appeal in Spicer v New South Wales Medical Board & Ors (unreported) Thursday, 19/02/1981) are instructive when Hope JA with whom Reynolds and Hutley JJA agreed, observing at 5, 6: "In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way which is reckless and which shows a disregard to the law it cannot be said that he is fit at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfit to treat those addicted or habituated to drugs but that unfitness in itself demonstrated his present unfitness to be a medical practitioner." 1. The Tribunal also notes in its consideration the observations in Reimers v Medical Council of New South Wales [2015] NSWCATOD 38 at paragraph 53 where the Tribunal referred to a decision of the Supreme Court of New South Wales, Court of Appeal in Prothonotary of the Supreme Court of NSW v P [2003) NSW CA 320 when Young CJ in Eq (Meagher and Tobias JJA agreeing) said: "Unfortunately, the experience of courts is that it is only too easy for people to relapse into drug culture if the pressure of life becomes too great. Accordingly, it is necessary to look very closely into this aspect of the case. The maxim "once an addict, always an addict" is unfortunately true. Once a person has been an addict, the best that could be expected is to look to see a person with the willpower to know when to see the red light, when to seek appropriate professional help in time of great stress and pressure, and seek that help and abide by the advice that is given". 1. The practitioner urges the Tribunal to impose a reprimand. The complainant seeks a suspension of practice for a period of three months with conditions. The Tribunal is satisfied that the conduct of Dr DAC warrants disciplinary action. The paramount object of such action is to protect the public and is not intended to be punitive: see Prakash v HCCC [2006] NSWCA 153 at [91], where Basten JA said (inter alia): "However the public interest includes indirectly, the standing of the medical profession and the maintenance of public confidence in the high standard of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so." 1. In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA said (inter alia) at [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." 1. Where the conduct is regarded as sufficiently serious to warrant deregistration or suspension from practice, an element of punishment may be required: see Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. The Tribunal considers that a suspension is warranted to remind the practitioner of his professional duties and to mark the seriousness of the offence. Conditions will also be imposed following upon suspension. 2. In imposing the suspension, it is not to be implied that the Tribunal considers the Respondent to be unfit for future practice. As already referred to, the expertise of the Respondent is not in question. Rather, the suspension is imposed to mark the seriousness of his past misconduct: it should not be interpreted as suggesting that the Respondent is unfit to resume his full duties and progress to practising independently as a consultant neurosurgeon. Non-Publication Order 1. The practitioner has sought an order for non-publication of his name and that of Dr A. The Tribunal granted such order at the outset of the hearing, as it was uncertain of the material to be placed before it. The National Law No 86a, Schedule 5D, cl 7(1), Release of information relevantly provides: 1. the person presiding in proceedings before a Committee or a Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case… 1. direct that the name of any witness is not to be disclosed in the proceeding; or 2. direct that all any of the following matters are not to be published – 1. the name and address of any witness; 2. the name and address of a complainant; 3. the name and address of the registered health practitioner or student; 4. any specified evidence; 5. the subject-matter of a complaint . 1. Section 49 of the Civil and Administrative Tribunal Act provides that all matters before the Tribunal are to be heard in public. In the present proceedings, the proceedings have been heard in public. 2. The Tribunal notes that the HCCC opposed the granting of an interim order in respect of the name of the practitioner at the outset of these proceedings, and opposes the making of a permanent order of non-publication in respect of the name of the practitioner. The HCCC has drawn the Tribunal's attention to the reasons for its final decision in the matter of HCCC v Gow (Suppression order) [2008) NSWMT 3. At (21) the Tribunal said: "inherent in the protection of the public that information about the practitioner be available should a potential patient wish to enquire as to whether the practitioner had been the subject of an order under the Act or should have patient wish to make a complaint. The Medical Tribunal also upholds the standards and reputation of the profession in ensuring that the public retains confidence in the medical profession". 1. The HCCC requests the Tribunal to note that the order for permanent suppression was refused even though the practitioner was not working, had no intention to work again as a doctor, and there is no prospect that he would repeat the conduct that drove the complaints. 2. The Tribunal is mindful of the objective of securing public confidence by denouncing misconduct (see HCCC v Do [2014] NSWCA 307 at [35]), and of the principles relating to open justice as referred to inHCCC v Dr A.[2012 NSWMT 10 (22 June 2012) and of the very special or exceptional circumstances required to justify the making of a suppression order as referred to in such decision at [19]. However, rigid application to stated principles relating to open justice may serve to do injustice in exceptional cases. The Tribunal has carefully weighed up the submissions of both parties and makes the following observations. 3. In respect of Dr A, the order will remain. The Tribunal has evidence of ongoing psychological disturbance being suffered by a close relative of Dr A arising out of Dr A's death. It could cause potential harm to that person if the identity of Dr A is disclosed. The suppression order would be solely for the benefit of persons who have not been involved in any way in the matters which come before the Tribunal, and the potential for psychological harm being caused to such person is an important consideration. No purpose will be served by revealing the name of the Dr A since there is no suggestion that any patient has suffered in consequence of any treatment provided by Dr A. The Tribunal considers that such unusual circumstances take the matter out of the ordinary; that is, that the ordinary principle that the interests of justice requires that the proceedings be made public, is displaced: see Health Care Complaints Commission v Safi [2017] NSWCATOD 26, and warrants the suppression order being continued permanently. 4. With respect to the practitioner, the Tribunal has received extensive written submissions. They relate to concern regarding the practitioner's grief reaction following the death of Dr A which, according to the evidence of Dr Olav Neilssen was resolving, and more particularly, the devastating impact that publication might have upon the practitioner's career prospects. 5. The Tribunal has determined that these proceedings are extraordinary for the following reasons: firstly, the matters which brought the practitioner to the attention of the HCCC were not in consequence of a patient complaint; secondly there is no evidence of any suggestion of malpractice towards any patient; thirdly the matters that brought the practitioner to notice resulted from his personal association with Dr A, and the subsequent involvement with recreational but illicit drugs; fourthly, there is no complaints concerning the practitioner's skill or ability or devotion to his professional work: on the contrary, all of the referees which include esteemed specialists, speak highly of the practitioner; fifthly the practitioner has been engaged in a hospital more than three years where his services have been highly valued; sixthly, there is a risk that, if the practitioner's name were disclosed, Dr A could be identified. 6. But there are two other overarching considerations in favour of a permanent suppression order. Firstly, the authorities relied upon by the HCCC have a common thread, namely that it is important for the public to be able to know whether the medical practitioner has had a complaint against them, so that public confidence can be maintained. Obviously this is desirable where the practitioner has been guilty of malpractice or misconduct involving patients. No such consideration arises in the present circumstances. 7. Further, four years have elapsed since the matters giving rise to the proceedings took place. The Tribunal is aware that there were various enquiries, including a coronial enquiry relating to the circumstances of the death of Dr A, which is no doubt caused delay in bringing these proceedings. Irrespective, the fact is that, with the passing of such time it would be punishment in the extreme if the practitioner were now publicly exposed when in fact there is no valid reason to do so other than to bring the matters to the public's attention. It is not as if the public needs to know of the events because of any possible risk to patient safety. 8. For the reasons the Tribunal will make a permanent order prohibiting the publication of the name of the practitioner. Since three nurses were also witnesses, their names will also be made the subject of a permanent non-publication order. Costs 1. The Tribunal has not heard submissions on costs. However the Tribunal has powers provided by clause 13 of Schedule 5D of the National Law to make an order for costs. The usual rule applies that the party against whom orders are made is to meet the costs of the other party: see Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85]; Health Care Complaints Commission v Do [2014] NSW CA 307 at [51]. The Tribunal will accordingly order that the Respondent pay the costs of the proceedings unless within 14 days an application is made for a different order. Orders 1. The Tribunal makes the following findings and Orders: 1. That the Respondent is guilty of unsatisfactory professional conduct in respect of Complaints 1, 2, 3, 4 and 5; 2. That Respondent is guilty of professional misconduct in respect of Complaint 6; 3. That the Respondent be suspended for a period of 3 months commencing from the date of delivery of the decision of this Tribunal; 4. After the expiry of the suspension the Respondent's medical registration is to be subject to the following conditions: 1. The conditions currently imposed on the Respondent's registration by the Medical Council of NSW. 2. The Respondent must attend for treatment and monitoring by an Addiction Specialist. This specialist should be either an Addiction Medicine Specialist (FAChAM) or a specialist in Addiction Psychiatry (Cert. Addiction Psych.). To authorise the Respondent's treating Addiction Specialist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 3. The Respondent is not to prescribe for self-medication. 4. The Respondent is not to self-administer: 1. any Schedule 4D or 8 Drug. 2. any narcotic derivative, non-prescription compound analgesic or cold medication. Such medications must only be prescribed and taken at the direction of the Respondent's treating practitioner. 1. That should the Respondent be prescribed or directed to take a: 1. Schedule 4D Drug, 2. narcotic derivative, 3. non-prescription compound analgesic or cold medication, the Respondent must agree to notify the Council Appointed Psychiatrist and the Medical Council of NSW. In addition within seven days the Respondent must provide the Council with written confirmation of such treatment from the treating practitioner. 1. The Respondent must attend either weekly meetings of the Doctors in Recovery Group or other group therapy relating to addiction, or meetings of Narcotics Anonymous (NA) and authorise the Council to confirm the fact of attendance with the convenor of the group. 2. The Respondent must continue random Urine Drug Testing (UDT, in strict accordance with the Council's protocol). 3. That the Respondent should provide for approval by the Medical Council of NSW the name and professional address of a registered senior neurosurgeon in a senior position who has agreed to act as his professional mentor. The nature and frequency of contact with the mentor is to be determined by the mentor in accordance with the Council's Guidelines for Mentors but not less than monthly. The mentor is to be provided with a copy of the Guidelines: 1. The Respondent is to authorise the mentor to report, in an approved format, to the Council every three months, initially for twelve months, about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. 2. The Respondent is to authorise the mentor to notify the Council of any failure to attend, termination of the mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate. 3. The Respondent will meet with the mentor for an initial period of 12 months from the date of the first consultation and thereafter for such period as the Council may determine. 4. In the event that the approved mentor is no longer willing or able to continue as mentor, the Respondent is to nominate another mentor for approval by the Council within 28 days of the cessation of the original mentor relationship. 5. The Respondent is to be responsible for any costs of the mentoring process. 6. The meetings should include discussion of any personal and/or medical practice issues that may arise. 1. The Medical Council of NSW will be the review body for these conditions. 1. The Tribunal recommends to the Respondent that during the period of the suspension that he comply with the conditions on his registration currently imposed by the Medical Council of NSW (including random UDT). 2. The Respondent is to pay the applicant's costs of the proceedings unless within 14 days of publication of this decision an application is made for a different order. 3. That the interim non-publication order made in these proceedings pursuant to sch. 5D cl 7 of the Health Practitioner Regulation National Law (NSW) in respect of the name of the practitioner be made permanent, save and except to the Medical Council of NSW and the Australian Health Practitioner Regulation Agency, and that a permanent non-publication order be made in respect of the names of nurses who testified in the proceedings. 4. That the interim order made pursuant to sch. 5D cl 7 of the Health Practitioner Regulation National Law (NSW) prohibiting the publication of the name of Dr A be made a permanent order in respect of the identity of such practitioner. ******** 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: 28 June 2017