Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hampshire v Medical Council of NSW [2017] NSWCATOD 140 Hearing dates: 21 August and 14 September 2017 Date of orders: 29 September 2017 Decision date: 29 September 2017 Jurisdiction: Occupational Division Before: F Marks ADCJ, Principal Member Decision: (1) Application for stay dismissed. (2) Costs reserved with liberty to apply. Catchwords: Medical Practitioner registration suspended – application for stay of suspension pending hearing of appeal – principles on stay application Legislation Cited: Health Practitioner Regulation National Law NSW Civil and Administrative Tribunal Act Cases Cited: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 Dr Reid v Medical Council of NSW [2014] NSWCATOD 152 Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 Category: Principal judgment Parties: Dr Robert Hampshire (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: P Griffin SC (Applicant) P Lowson (Respondent) Solicitors: Hicksons Lawyers (Applicant) Medical Council of NSW (Respondent) File Number(s): 2017/00249609 Publication restriction: Non-publication order extending to the identity of, or any material likely to identify any patient of the respondent or any person about whom the respondent was required to express a medical opinion. reasons for decision on stay application Introduction 1. On 4 August 2017 delegates of the respondent Medical Council of NSW determined to suspend the registration of the applicant Dr Robert Hampshire as a medical practitioner pursuant to the provisions of the Health Practitioner Regulation National Law ("the National Law"). Written reasons for their decision were issued by the delegates on 25 August 2017. On 16 August 2017 the applicant instituted appeal proceedings from the decision to suspend his registration, and on the same day filed an application for a stay of the order of suspension. It is that stay application which is the subject of these reasons for decision. The statutory matrix 1. It is uncontroversial that by reason of the provisions of section 165B of the National Law and the definition of an ancillary decision as contained in the Civil and Administrative Tribunal Act, that the determination of this stay application is to be made by me sitting alone, as a "senior judicial officer" for the purpose of the National Law. 2. The power to suspend which reposed in the delegates appointed by the respondent stems from the provisions of section 150 of the National Law, which are in the following terms; 150 SUSPENSION OR CONDITIONS OF REGISTRATION TO PROTECT PUBLIC [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest – (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens – (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must - (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section - (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who - (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act. 1. The jurisdiction and power of this Tribunal to deal with the appeal flows from the provisions of section 159 of the National Law which are in the following terms; 159 RIGHT OF APPEAL [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession - (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under Division 3 or 4 or the alteration of the conditions by the Council; (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. Note: An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K. (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given. 1. I note for present purposes that the appeal is to be by way of a hearing de novo, based on such material as is before the appeal tribunal at the time of the hearing of the appeal. 2. The jurisdiction and power to grant a stay of the order suspending the registration of the applicant after the initiation of an appeal is to be found in section 43 of the Civil and Administrative Tribunal Act ("the CAT Act") which is in the following terms; 43. EFFECT OF PENDING GENERAL APPLICATIONS AND APPEALS (1) This section applies to the making or lodgement of any of the following (a "pending general application or appeal"): (a) a general application for the review or other re-examination of a decision made by an external decision-maker, (b) an external appeal, (c) an internal appeal. Note : See Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 for the effect of pending administrative review applications on administratively reviewable decisions and the making of orders staying or otherwise affecting such decisions. (2) A pending general application or appeal does not affect the operation of the decision to which the application or appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision. (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal. Principles applying to the grant of a stay 1. The general principles which apply to the granting of a stay are set out in the judgment of Wright J, President of the Tribunal in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37. In considering the provisions of section 43(3) of the Civil and Administrative Tribunal Act. His Honour said, at [9]: As a result of the use of "may" in s 43(3) of the Act, the Tribunal has a discretion whether or not to grant a stay. That discretion must be exercised judicially and general principles which apply in relation to the exercise of that discretion can be derived from the terms of s 43(3) itself. Additional guidance can be obtained from the considerations applied by the Courts in deciding whether or not to grant a stay pending an appeal. The applicable principles can be summarised as follows: (1) Generally a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour - s 43(2) and (3) of the Act, Kalafair Pty Limited v Digitec (Australia) Pty Limited [2002] NSWCA 383; (2002) 55 NSWLR 737 at [28], Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. (2) In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Vaughan v Dawson [2008] NSWCA 169 at 16. (3) The mere lodgement of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay - s 43(2) and (3) of the Act, Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]. (4) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal - s 43(3) of the Act. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. (5) The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695. (6) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies - ss 43(3) and 58 of the Act. (7) In exercising the discretion the Tribunal will also weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [21] and [22]. (8) Finally, the overriding principle in an application for a stay is to ask what the interests of justice require - New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83] and Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18]. 1. Although an appeal under section 159 of the Act is a hearing de novo, and strictly speaking the reasons for the making of the underlying decision become less relevant, nevertheless those reasons will have relevance in examining the prospects of a successful appeal. For example, the reasoning adopted by the delegates from whose decision the appeal is brought might be flawed thus rendering it more likely that an appeal will succeed. (See the approach taken on appeal to the reasoning of the delegates in Dr Reid v Medical Council of NSW [2014] NSWCATOD 152 at [107] and following). 2. I shall return to a consideration of these principles after considering the evidentiary material which is available and the nature of the underlying proceedings, including the appeal. 3. As will be seen, the applicant submitted, amongst other things, that it was appropriate to set aside his suspension and allow him to continue to practice as a medical practitioner subject to certain practice conditions being imposed. The parties took differing positions about the power of the Tribunal to impose practice conditions if determining to stay the operation of the suspension of registration. Having regard to the manner in which I have determined that these proceedings should be disposed of, it is not necessary that I give detailed consideration to this controversy, but I shall describe it briefly because it remains a live and undetermined issue. In the interests of those responsible for the application of the Act, which serves an important function in the regulation of health practitioners in New South Wales, and in the interests of health practitioners whose conduct may expose them to the possibility of suspension of their registration, as well as to the legal practitioners who represent parties before this Tribunal, it is important that this controversy be resolved. 4. The controversy arises from the manner in which section 159C of the Act operates on the provisions of section 159(1)(a) and (b) .Section 159C is in the following terms; 159C TRIBUNAL'S POWERS ON APPEAL [NSW] (1) On an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper. (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of. 1. Section 150(1)(a) and (b) allow for either suspension of registration or the imposition of conditions. Section 159C deals separately with a suspension from the imposition of conditions, and this flows logically from the alternative remedies provided for in section 150. However, the Tribunal when dealing with an appeal from a suspension is limited in the orders that it may make to the termination of the suspension or the variation or confirmation of the period of suspension. There is no power specifically provided for conditions to be imposed if the Tribunal on appeal concluded that it was appropriate to impose conditions in lieu of a suspension of registration. The only power to deal with conditions on appeal is that contained in subsection (1) of section 159C, namely to revoke, vary or confirm conditions imposed by the Council from which the appeal is brought. 2. It was the submission of the applicant in these proceedings that the Tribunal is empowered when granting a stay of an order of suspension to do so subject to the imposition of conditions on his registration. Assuming the approach to the construction of section 159C is correct, it was submitted on behalf of the applicant that this Tribunal is empowered to impose registration conditions as a condition of the grant of a stay by reason of section 43 (3) of the CAT Act. The imposition of conditions is specifically referred to in the subsection and the discretion to impose conditions should not be fettered by any limitation on the ultimate power of the Tribunal to make final orders on the disposition of the appeal which, as I have previously set out, arguably excludes the power to impose conditions in conjunction with the revocation of suspension. 3. For reasons which I shall shortly state, it is not necessary that I consider this matter for the purpose of the determination of this application, and it is not appropriate that I seek to postulate any concluded view about the matter. However, to the extent that my observations might be of assistance generally, the submission made on behalf of the applicant appears to me to be a valid one, and one which would avoid reading down the otherwise wide discretion granted in section 43 (3) (subject to the caveat contained within the provisions of the subsection, that the condition must be "appropriate to secure the effectiveness of the determination of the application or appeal.") In making this general observation I am cognisant also of the necessity to consider what is meant by "the effectiveness of the determination of the……appeal" in the context of the particular proceedings. 4. Before considering the application of the principles stated above to the circumstances of these proceedings it is necessary to have regard to the relevant factual circumstances as disclosed in the evidence adduced in these proceedings. The factual matrix 1. The applicant is currently aged 69. He gained qualifications in medicine in 1975 and in psychiatry in 1983. Information made available for the purpose of these proceedings indicates that the applicant has had a long involvement with the respondent and its predecessors dating back to 1990. At various times, he has had practice conditions imposed on his registration, has been classified as an impaired practitioner, has undertaken mandatory counselling and medical treatment, and has been the subject of a number of complaints. In addition, his registration has been the subject of cancellation. Prior to the occurrence of the most recent incidents which again brought him to the attention of the respondent, the applicant was the subject of continual monitoring concerning a medical condition and his conduct. I shall return to these matters later. 2. A complaint concerning the conduct of the respondent was made to the Health Care Complaints Commission ("HCCC") on 26 April 2017 by a person who had consulted him on 7 April 2017 for a medico legal evaluation, through a contact established by her solicitors. She said that on 14 April 2017 at about 7 pm she accidentally called the respondent's telephone number on her mobile phone, but immediately terminated the call when she realised what had happened. The applicant immediately called her and they had a short conversation in which he asked her to call him later that evening. Following some text communications there were some further telephone conversations and text messages in which the applicant made a number of lewd and sexually related comments. The person concerned provided details to the HCCC of the times when the telephone calls occurred and a printout of the text messages which the applicant had sent her. 3. When confronted with the allegations made by this person, the applicant caused his solicitor to write to the HCCC admitting the facts as contained in the complaint, asserting that there were "extenuating circumstances surrounding the reasons for the conduct" and seeking an opportunity for the applicant to discuss these when he next attended Dr Nick O'Connor, a psychiatrist appointed by the respondent scheduled for 11 July 2017 as well as at a forthcoming interview with the respondent which was to take place on 18 August 2017. 4. Before dealing with the report of Dr O'Connor I refer to practice conditions which had previously been imposed on the applicant's registration for some years. Relevantly, for the purpose of the consideration of these proceedings what were described as "Public Practice" conditions precluded the applicant from possessing, prescribing, supplying, dispensing or administering any drug of addiction, being a Schedule 8 drug, from working more than 35 hours a week and limiting the number of patients seen each week. Significantly, Public Practice condition number 6 required the applicant "To seek Council approval prior to changing the nature or place of practice." 5. In addition, the applicant was subject to "Private Health" conditions forbidding him from self-administering certain drugs of addiction, requiring him to attend for treatment and review by a general practitioner at least three monthly, and to attend for treatment by a psychiatrist and cardiologist as required from time to time. He was also required to attend for review by a psychiatrist appointed by the Council on a six monthly basis and to attend for a Review Interview at the Council and for neuropsychiatric testing as required. Significantly, Private Health conditions numbers 8 and 9 were to the following effect; 8. To limit his alcohol intake to social consumption, defined by the Council as being not more than 2 - 3 standard drinks in any 24-hour period, with a minimum of two alcohol - free days per week. A standard drink contains not more than 10 g alcohol. 9. To abstain from any use of sedative medications, including benzodiazepines and Stinox (zolpidem). 1. Dr O'Connor provided a report to the respondent dated 14 July 2017. Without traversing all of the matters referred to in that report, it is sufficient for present purposes to note the following matters; 1. Dr O'Connor had last seen the applicant in January 2017. He thought that the applicant "was unable to provide a coherent account of his progress since I last saw him…." The applicant told him that his brother had recently died, he was still suffering from the consequences of the earlier death of his son, and his relationship with his partner had irretrievably broken down. The applicant attributed these matters as well as anxiety following the recent HCCC complaint as contributing to general anxiety and insomnia from which he was suffering. 2. In addition to treating clinical patients, the applicant had commenced seeing patients for assessments and legal reports every 3 to 4 weeks on a Friday travelling to two country areas. He had not previously informed Dr O'Connor that he was undertaking this type of work and the circumstances applying to it. 3. In describing what happened on 14 April 2017 the applicant told Dr O'Connor that he had attended a birthday lunch on a friend's boat. He was unable to recall the name of the person whose birthday was celebrated but did recall the name of the owner of the boat. He was unable to recall who else was in attendance. He said that he had been drinking most of the day but was unable to recall what happened after leaving the boat. He could not recall any of the telephone interactions with the person which occurred that day because he was "drunk" and in addition he had taken a sleeping tablet, temazepam, before going to bed. The applicant told Dr O'Connor that he was "appalled and deeply ashamed of his behaviour" which was the subject of the complaint and acknowledged that it constituted a boundary violation, misconduct "and may have traumatised" the person concerned. 4. In the course of the consultation Dr O'Connor noted that the applicant was vague when asked to give details about the dates of certain activities and how long he had been taking vortioxetine, an antidepressant. 5. When asked by Dr O'Connor to comment on his breach of health conditions by consuming a large amount of alcohol and using a benzodiazepine sedative the applicant told him that "for some time he had regarded these conditions as "harsh and unnecessary."" 6. In the opinion of Dr O'Connor, the applicant was suffering from generalised anxiety because of the HCCC complaint, some symptoms of depression and some memory impairment which had been noted by others who had reviewed the applicant in February 2017. On that occasion, it was also noted that the applicant became "irritable and flustered when he is challenged" and Dr O'Connor thought that this "could be consistent with some new cognitive impairment." 7. Dr O'Connor noted that there had been a clear breach of Private Health conditions 8 and 9. He thought that the "most likely contributing factors" to the behaviour of the applicant on 14 April 2017 was that it resulted from a combination of significant intoxication coupled with a benzodiazepine sedative "in the context of probable impaired cognitive function." He recommended that the applicant undergo a neurocognitive assessment to assess the extent of his memory and cognitive impairments and that he be referred for assessment by a physician specialising in drug and alcohol matters. He also recommended regular review by the respondent's psychiatrist, and the applicant's own treating psychiatrist and general practitioner. 1. The applicant was referred for neuropsychological assessment and opinion to Mr Andrew Rock, a senior clinical neuropsychologist. Mr Rock interviewed the applicant on 24 July 2017 and had access to a number of Interview Reports, the complaint made to the HCCC in April 2017 and the report of Dr O'Connor of 14 July 2017. Mr Rock was able to express an opinion based on this material, the results of his consultation with the applicant and the results of a number of neuropsychological tests which he administered. The basis for the conclusions and findings made by Mr Rock were not the subject of any discussion or analysis in these proceedings. In summary, Mr Rock had regard to the applicant's level of education and professional attainment and on this basis assessed him as being ranked at about the 95th percentile of his age group in general mental ability. However, the administration of Full Scale IQ tests demonstrated that the applicant ranked below the 9th percentile which he described as "an unexpected decline from the superior to the mildly impaired range in general intellectual functioning relative to his background. His level of performance was relatively consistent in verbal comprehension, perceptual reasoning, working memory and speed of processing." In addition, the applicant ranked below the 9th percentile on the Working Memory Index "consistent with mildly impaired ability to hold information in mind while manipulating it to solve problems." Mr Rock described other aspects of his assessment of the applicant in varying degrees. Significantly, Mr Rock concluded that the neuropsychological testing which he conducted revealed "clinically significant limitations in concentration, constructional skills, object naming, and ability to persist with strategies; mildly impaired perceptual reasoning, working memory and general intellectual functioning; and at least moderately impaired memory, accuracy (as opposed to quantity) of recall, and a self-monitoring and inhibitory control." He thought that these deficits were "likely multifactorial in origin and in the context of the reported history the pattern of deficits appears reasonably consistent with the effects of hypertensive encephalopathy, potentially exacerbated by the impact of excess alcohol consumption on an ageing and vulnerable brain. Psychological factors such as mood may also be exerting a limited negative impact on performance." He thought that the applicant was "performing in the impaired range in many core facets of cognition, well below the level expected given his estimated premorbid ability and professional role. In my opinion his cognitive deficits are reasonably likely to manifest in abnormal difficulty maintaining concentration; abnormally limited and inaccurate recall of new information; and abnormal difficulty in monitoring his own performance, implementing strategies, and regulating his behaviour." He thought that these deficits were likely to compromise the applicant's ability to absorb and retain client information and implement strategies efficiently "impacting for example on ability to develop informed formulations and treatment plans." It was the opinion of Mr Rock that the mental deficits which he described "seem reasonably likely to detrimentally affect his capacity to practice his profession at this time." He considered that the applicant was "impaired" as that word is defined by the Act. (I note that although Mr Rock does not refer to the definition in the Act, "impairment" is defined in section 5 as being; " 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……") Reasons for Decision of the delegates 25 August 2017 1. The delegates provided comprehensive reasons for their decision to suspend the applicant's registration. Those reasons were not available to the applicant at the time that he lodged his appeal or filed the application for the stay the subject of these proceedings. These reasons are helpful in that they set out information which was provided to the delegates by the applicant during the course of conducting their hearing. 2. The delegates asked the applicant to confirm that his current medication was the same as that referred to in the Review Interview Report of 16 February 2017. The applicant omitted to make any reference to Ritalin which he had informed Dr O'Connor he had been taking for about two years. The applicant was asked to respond to an extract of the report of Dr O'Connor concerning this. He did not reply but told them that he believed that taking Ritalin "was associated with increased alcohol consumption." The applicant was unable to provide any information satisfactory to the delegates as to why he had failed to mention that he was taking Ritalin either at the review in February 2017 or at the hearing before them. He did say however that he had decided eight weeks previously to cease taking Ritalin and whether or not he did take it was his own decision. 3. The applicant was unable to recollect the circumstances in which a Dr Kneebone had diagnosed and treated him for ADHD. 4. The delegates questioned the applicant concerning his intake of alcohol having regard to the existing Private Health Condition 8. He told them that if he went out to dinner he would share a bottle of wine with a friend. He was reminded that half a bottle of wine was roughly equivalent to 4 or more standard drinks. The applicant told the delegates that he went out 1 – 2 nights per week and either Saturday or Sunday nights. He said that the frequency of his drinking had increased over the last two years, but not the volume. The applicant was reminded that he had said that during the Friday, 14 April 2017 he had consumed 6 or more standard drinks whilst on the boat. 5. The applicant informed the delegates that he had taken one 10 mg temazepam tablet two nights a week for insomnia and that he had done this for the last two years. He conceded that at both the Review Interview in February 2017 and during the assessment with Dr O'Connor in July 2017 he did not admit to taking temazepam. Furthermore, the applicant disagreed with the opinion of Dr O'Connor about the possibility of an adverse reaction when taking temazepam and alcohol simultaneously. The delegates commented that on the basis of the information given to them by the applicant he was taking a benzodiazepine 1 to 2 nights a week and drinking 3 to 4 nights a week so that up to 6 nights a week he was either drinking or taking benzodiazepines. Prior history 1. The power to suspend which is exercised by the respondent, and which I shall shortly discuss, is subject to the provisions of section 41O of the Act which is in the following terms; 41O OTHER MATTERS TO BE TAKEN INTO ACCOUNT [NSW] In the exercise of any of its functions under Subdivision 2 or 7 of Division 3 of Part 8 with respect to a complaint about a registered health practitioner or a student, a Council must have regard to any of the following matters, to the extent the Council reasonably considers the matter to be relevant to the complaint. (a) another complaint or notification about the practitioner or student made to the Council or the National Agency, or made to a former Board under a repealed Act, including a complaint – (i) in respect of which the Council, the Commission or a National Board has decided no further action should be taken; and (ii) that is not required to be referred, or that the Council or the Commission decides not to refer, under Division 3 of Part 8; (b) a previous finding or decision of a Council inquiry in relation to the practitioner or student; (c) a previous finding or decision of a board inquiry, professional standards committee or a tribunal established under a repealed Act in respect of the practitioner or student; (d) a written report made by an assessor following an assessment of the practitioner's professional performance; (e) a recommendation made, or written statement of decision on a performance review provided, by a Performance Review Panel in relation to the practitioner. 1. It will be seen that it is mandatory to have regard to the matters referred to in that section in determining, for present purposes, whether it is appropriate to suspend the registration of the applicant. Accordingly, it is necessary to examine these matters for the purpose of ascertaining whether they might reasonably be considered relevant to determining whether registration should be suspended, and the likely prospects of a successful appeal. 2. A convenient summary of the history of the applicant's previous interaction with the respondent and its predecessors may be gained from a Review Interview Report conducted on 16 February 2017 in which the applicant was interviewed by Drs K Arnold and M- A Friend. This Report was included in the papers made available to the Tribunal for the purpose of the hearing of these proceedings, and no issue was raised by either party as to the relevant accuracy of its contents. 3. In 1990, the applicant relinquished his right to prescribe Schedule 8 drugs following a report that he had self-administered pethidine for injuries sustained in 1988 and had been suffering from depression for a period of two years. In 1992 a Professional Standards Committee imposed practice conditions because the applicant had written prescriptions for self-medication for pethidine without having an authority to do so, and had developed a dependence on pethidine. He had substituted false urine samples to avoid detection. He was found to have been suffering from an impairment, hence the imposition of the conditions. The applicant breached those practice conditions and was found guilty of professional misconduct by the then Medical Tribunal. He had surrendered his registration prior to the commencement of those proceedings and had requested that his name be removed from the register. The Tribunal ordered that his name not be reregistered and that no review take place for two years. 4. In 1999 the applicant successfully applied for reregistration. The Medical Tribunal found that there was no evidence of continued abuse of pethidine since 1990, that the applicant's impairment was caused by his addiction, and that on this basis it was appropriate that he be reregistered, however subject to an extensive set of practice conditions. He was placed in a health program, which he left, with the approval of the Medical Board in 2003. 5. A number of intermittent complaints were made about the applicant concerning reports of intoxication between 2004 and 2009. However, despite investigation and the conduct of a Performance Interview, no further action was taken against the applicant. 6. The applicant failed to complete an annual renewal process and his registration was deleted on 3 August 2009. He had continued to practice although he had been informed that he was not registered and not covered for professional indemnity insurance. In October 2009 the then Medical Board was advised by practitioners at St Vincent's Hospital that it was believed that the applicant had consumed vodka and Xanax which had caused him to become ataxic and incoherent. The Board received a further notification on 23 December 2009 from a staff specialist at Royal Prince Alfred Hospital that the applicant had been admitted with a history of slurred speech, unsteady gait and "subtle changes in both intellect and emotions." 7. The applicant's application for reregistration made on 4 January 2010 was referred to a Schedule 1 enquiry which was conducted on 18 March 2010. The applicant explained previous reports of incoherence and slurred speech as being the result of sustained and extreme hypertension which caused, in his words, "very limited brain reserve". He described his episodes of confusion and behavioural disturbance as being caused by even one drink of alcohol, or the adjustment of his medication or low doses of a sedative. He thought that the fact that he recommenced taking Ritalin could also have caused slurred speech and confusion. He attributed his problems also to a condition of cerebral oedema. 8. In their reasons for decision, the members of the Panel referred to a number of discussions which they had held with treating and Board-nominated specialists. They concluded that during the period September 2009 to January 2010 that the applicant's "intermittent confusion…. was an organic-brain syndrome of vascular aetiology." They concluded that extreme hypertension followed by marked hypotension was the cause of his episodic confusion, neurological signs and behavioural disturbance and falls in late 2009. There was no actual evidence that some of his presentations were caused by the effects of alcohol or substances such as benzodiazepines and Stilnox. The Panel noted that in the period February to March 2010 that the applicant's intermittent confusion may have been due to the effect of taking Ritalin. Furthermore, the Panel noted that the Board appointed psychiatrist, Dr O'Connor said that he was not concerned about the registration of the applicant provided this occurred with appropriate practice conditions to enable support and monitoring to occur. 9. Psychometric testing was arranged and a report was received dated 28 April 2010 from a Board-nominated neuropsychologist, Dr Alexandra Walker. The Panel noted that it was the opinion of Dr Walker that the results of neuropsychological assessment indicated "the presence of mild cognitive impairment" which might arguably have an impact upon his ability to practice but which would be compensated by the nature and extent of the applicant's "well-established knowledge, many years of clinical experience, and some awareness of the reduction of his memory, which may encourage him to use compensatory strategies…." Dr Walker thought that the applicant's cognitive capacity should be the subject of regular monitoring for any psychological or medical factors that might impair it. 10. On balance, the Panel was of the opinion that the applicant should be reregistered subject to a number of practice and health conditions. In so concluding the Panel noted that the applicant had not complied with his conditions which led to him being found guilty of professional misconduct in 1990 and that this factor militated towards ensuring that appropriate conditions directed to compliance should also be imposed. 11. Subsequently, in 2011 the respondent determined to commence proceedings under section 150 of the Act seeking the applicant's registration be suspended because he was in breach of a number of the practice conditions. The applicant responded that the breaches had occurred because other practitioners had failed to notify the respondent of matters which would have indicated compliance with the conditions. Section 150 proceedings were conducted on 21 June 2011 but it was ascertained that at that stage the applicant had not renewed his registration which had expired on 14 May 2011. He applied for reregistration which was granted on 27 July 2011. 12. A Medical Tribunal found the applicant guilty of unsatisfactory professional conduct in practising without professional indemnity insurance between 1 January 2008 and 3 August 2009 and in breaching practice conditions. The applicant made admissions as to some of the complaints made against him which were found proven, and others, which he resisted were found not proven. The applicant was reprimanded and a fine was imposed. The then existing practice conditions were strengthened. 13. The applicant underwent a series of Review Interviews between 2011 and 2017. The last of those interviews took place on 16 February 2017. The Reviewers said that the applicant presented as "a little more irritable and argumentative than usual" and they found him to be "a little perseverative and disorganised, and at times it was difficult to understand his train of thinking, particularly when he tried to explain his appointment schedule." They were concerned that he was not having a regular medical follow-up and that his blood pressure had not been checked for some time. They recommended that the applicant provide a letter from his general practitioner or cardiologist, but otherwise recommended no changes to the then existing practice conditions. The evidence of the applicant in these proceedings 1. The applicant gave evidence and was cross-examined. He outlined his current financial circumstances. He has limited assets and no debts. This follows from his discharge from bankruptcy in August 2015. Prior to his recent suspension he was earning approximately $800,000 per annum gross and between $400,000 and $500,000 per annum net. 2. The applicant said that he was profoundly affected by the death of his son, then aged 19 over three years ago. As a result, he suffered from episodic depression and insomnia which he had never encountered previously. He said that he currently takes antidepressant medication daily. 3. In describing his consumption of alcohol, the applicant said that he only drank on social occasions and in the evenings and would share a bottle of wine with a dinner partner. When pressed in cross examination he said that he drank up to half a bottle of wine on these occasions and acknowledged that consumption at this level was in breach of his practice condition. He said that that was his habit in January 2017. Furthermore, the applicant said that he would possibly drink more than a half bottle of wine when dining with a female companion. At first the applicant said that he viewed consumption of half a bottle of wine as roughly compliant with the practice condition but then conceded that he did not adhere to this practice condition at that level of consumption. 4. The applicant said that he had been taking sleeping tablets for the last 2 ½ years which had been prescribed by his general practitioner or which he had taken from his girlfriend. He acknowledged that he had thereby breached condition number 9. 5. The applicant said that over the last 10 years he had seriously noted a difference in his cognitive function and that this constituted a cognitive decline. However, he vehemently denied the assessment made by Dr O'Connor that he was impaired in his practise of medicine and stated that he was going to retain his own neuropsychologist. 6. The applicant was questioned about the medicolegal work which he conducted in country areas. He conceded that he had not informed the respondent about this work but denied that he was either misleading the respondent or knowingly concealing this information from it. Later, he conceded that he had misled the respondent by not informing it of the nature and extent of this work. He said however that this did not represent a breach of his condition. 7. In general terms, the applicant said that he resented the imposition of the practice conditions upon him and he resented having to submit to regular interviews with representatives of the respondent. Overall, he was resentful of his present circumstances and said that the respondent "does not like me." The relevance of sec 150 to these proceedings 1. I have earlier set out the provisions of section 150 of the Act, which are at the heart of these proceedings. There is a discussion of the general nature of the provisions of section 150 and their application in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 which I adapt for the purpose of these proceedings, and which commences at [56]: (1) The exercise of the power to suspend will have grave consequences for a medical practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. The grave consequences are accommodated within the need to ensure that we are satisfied to the Briginshaw standard that we can safely make the conclusions necessary to make a determination that section 150 is enlivened including a consideration of the nature and status of the material upon which any such conclusions are made. (2) The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that those exercising it need not embark upon a detailed enquiry, and may base their reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (See the cases cited in R and Medical Board of Australia [2013] WASAT 28 at [24] and following). …. (4) Nevertheless, the "draconian" nature of the power is such that great care needs to be taken to ensure that there is some proper and appropriate basis for making any order. This will involve an appropriate examination and consideration of the nature and extent of any misconduct alleged against the practitioner. The decision-maker "must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach" (R and Medical Board at [28]). (5) It will also require the formation of a "reasonable belief... That because of the health practitioner's conduct (or) performance...., the practitioner poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety" (R v Medical Board at [28]), or to do so otherwise in the public interest. This quotation needs to be qualified to the extent that "necessary" is not the test contained in the Act. (6) Any conclusions which are made in the course of determining that section 150 is enlivened are made for the purpose only of that determination, by reason of the ability to rely on information and material which may not otherwise be strictly admissible in administrative or judicial proceedings. (7) It is also necessary to consider the nature of the section 150 proceedings from which this appeal is brought. The provisions of section 150 have been set out above. We make the following observations about these provisions: (a) There are two requirements to be satisfied when determining whether the section is enlivened, namely the protection of the health or safety of any person or persons, and the public interest. (b) These requirements are expressed to be in the alternative. …. (d) In any event, if either of the health or safety or public interest ground is made out, then it is mandatory that the Council either suspend or impose practice conditions, subject to the Council being satisfied that it is appropriate to do so for the stated reasons. …. (f) A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits. (g) Section 150 empowers the Council to either suspend or impose conditions on the registration of the medical practitioner if circumstances warrant either of these steps. These powers are also available in circumstances where complaints have been initiated against a medical practitioner under the Act. The exercise of those powers by the Medical Tribunal is conditional upon findings of unsatisfactory professional conduct or professional misconduct. The process which we are undertaking is removed from any consideration of whether the medical practitioner might, at some stage, be found guilty of either unsatisfactory professional conduct or professional misconduct on the basis of some complaint which to date has not been initiated. (h) There is very little consideration within the provisions of the Act as to the manner in which the Council or its delegates are to conduct themselves in determining whether the necessary preconditions to the use of the available powers under section 150 are satisfied. For present purposes, it is sufficient that we observe that the principles of natural justice, including procedural fairness, should apply to the extent reasonably necessary. 1. It is appropriate when considering the milieu against which this stay application is to be determined that I repeat that what is sought to be stayed is a determination made by the delegates of the respondent to suspend the registration of the applicant. That determination was made under the provisions of section 150 of the Act. The determination of the appeal which is brought by the applicant will involve a hearing de novo of a determination whether the registration of the respondent should be suspended under section 150 of the Act. One of the matters that I will consider in determining whether to grant a stay of the suspension order is the prospects of the success of the appeal. Accordingly, and for this purpose, I will need to take into account those matters which will be relevant to the determination of the appeal. One of those matters will be the state of the evidence before the Tribunal constituted for the purpose of the appeal. Because the appeal proceedings will involve a hearing de novo including the ability to receive fresh evidentiary material and the determination is to be made on the basis of the state of the evidentiary material as at that the date of determination it is appropriate to have regard to such material as is currently available before me when evaluating the prospects of success of the appeal for the purpose of the stay proceedings. The applicant's admitted misconduct 1. There can be no doubt, as conceded by the applicant that he engaged in misconduct of a serious kind on 14 April 2017 when he behaved inappropriately in a series of text messages and telephone conversations with a person whom he had seen a week previously for the purpose of a medicolegal assessment. 2. Practice conditions are imposed for a reason, namely to protect the public, and to assist a practitioner in avoiding creating any undue risk to the public. It is only necessary to recite the provisions of section 3A of the Act to illustrate this. 3A OBJECTIVE AND GUIDING PRINCIPLE [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. The respondent has consistently breached the practice condition restricting his consumption of alcohol. Furthermore, there can be no doubt the he knowingly breached that condition. It is common knowledge that the consumption of half a bottle of wine will comfortably exceed three standard drinks. So much is clear from a cursory glance at the mandatory label which is displayed on every bottle of wine. It is clear from the evidence of the respondent that he resented the nature and extent of this practice condition and the restriction that imposed on his consumption of alcohol. The evidence is not confined to one isolated incident, and, for the purpose of the determination of these particular proceedings I am comfortably satisfied to the requisite Briginshaw standard that the applicant has, on many occasions breached this practice condition. This, of course, may ipso facto constitute unsatisfactory professional conduct as defined in the Act. Apart from this, such conduct of the respondent indicates that he is not prepared to comply with the statutory regime which applies to the regulation of medical practitioners in New South Wales. 2. In the same way, there is evidence that the respondent has consistently and regularly breached the practice condition relating to the consumption of sedative medications including benzodiazepines. Again, this also indicates a lack of preparedness to comply with the statutory regime by which the practice conditions were established. 3. The respondent appears to me to have dismissed out of hand the need to inform the respondent of the change to the place of his practice as required by Public Practice condition number 6. A person seeking to ensure compliance with a practice condition would normally furnish the required information if in doubt, or at least make enquiries to ascertain whether he or she is obliged to make notification as required. There is no indication that the applicant took either step. It seems to me that the words used in this practice condition are clear. When travelling to country areas to undertake regular medico-legal work the applicant was clearly changing his place of practice. I cannot comprehend that he would think otherwise. Again, this is indicative of a deliberate, rather than inadvertent, failure to comply with this practice condition. 4. In that the respondent blames his behaviour on 14 April 2017 on the excessive amount of alcohol that he consumed that day, coupled with the fact that he took a sleeping tablet, the respondent has admitted that his behaviour created a risk to the public, from which it needs protection. 5. Furthermore, the persistent and regular conduct of the respondent in failing to comply with practice conditions is indicative that the creation and imposition of practice conditions are not sufficient to protect the public from this applicant. 6. Finally, all the historical matters concerning the applicant's prior involvement with the respondent and his prior misconduct are relevant to be taken into account under section 41O. The applicant's impairment 1. When one reads the latest report of Dr N O'Connor coupled with the report of Mr Rock, there is compelling evidence from which I can be comfortably satisfied to the Briginshaw standard that the applicant suffers from an impairment which may have some impact upon his ability to practice as a specialist psychiatrist. 2. The applicant attempted to dissuade the delegates from such a conclusion by furnishing them with three redacted medicolegal reports, asserting that their contents were such that they could conclude that he was not impaired. I have perused those reports. Whether and to what extent these reports assist the applicant's assertions in this regard would depend upon an evaluation being made of them by someone with the appropriate expertise, presumably a psychiatrist or clinical psychologist, by reference to the clinical notes and other material relevant to the person about whom the medicolegal assessment was being made. In their written reasons, the delegates made no comment about their reaction to these medicolegal reports. For my part, I do not take them into account in rebutting the clear opinions expressed by Dr O'Connor and Mr Rock, which is the only available evidence concerning any impairment suffered by the applicant. I note, however, that in concluding that the applicant was impaired to an extent which justified suspension of his registration the delegates relied on a number of incidents where the applicant demonstrated a significantly faulty memory and ability to recollect a number of details which they considered were significant. This difficulty with memory and recollection was the subject of comment by Dr O'Connor and Mr Rock. 3. There is prima facie evidence to the effect that the applicant is impaired and that this may impact adversely on his ability to practice as a psychiatrist. Should the stay be granted? 1. In the circumstances considered above relating to the misconduct of the applicant as I have described it, and relating to a cognitive impairment as found by Dr O'Connor and Mr Rock, it must be concluded that the applicant represents a risk to the health and safety of the public if he were permitted to continue to practice as a psychiatrist, and that it is in the public interest that his registration be suspended until the circumstances can be fully and appropriately determined in proceedings before this Tribunal. 2. For these reasons, I conclude that the delegates of the respondent were justified on the basis of the evidence available to them in determining to suspend his registration. There is nothing in the evidence which has been made available to me subsequent to the determination made by the delegates which would militate against the conclusion reached by the delegates. Indeed, the evidence given by the applicant in the proceedings before me has confirmed the basis which was adopted by the delegates and which I adopt for the purpose of evaluating the prospects of the applicant on appeal. Whilst, of course, the opinions expressed by me in this regard will have no bearing on the outcome of the appeal proceedings, and are made solely in the context of considering the exercise of discretion concerning the grant of a stay, I would not characterise the applicant as having good prospects of succeeding in the appeal. Certainly, there is insufficient merit on this basis to militate towards the exercise of discretion to grant the stay which is sought by him. 3. In considering whether to grant a stay as sought by the applicant I take into account the severe financial impact that the inability to practice will have upon him. However, this must be balanced against the public interest in ensuring that practitioners who pose a risk to the health or safety of the public are not permitted to practice medicine. A practitioner found to have an impairment of the kind described by Dr O'Connor and Mr Rock will arguably pose such a risk, as will the fact of the admitted misconduct in which he engaged, coupled with his failure to comply with practice conditions imposed on his registration, as I have described it. 4. The applicant said that if a stay was granted he would undertake medico-legal work only and would not engage in clinical practice. It was implied that he would therefore pose less of a risk to the health and safety of the public. This submission overlooks the significant public importance of the work performed by medical and other health practitioners in providing expert assessments for use by individuals, insurers, employers and especially the courts. Significant rights and obligations are dependant upon assessments made by medical practitioners for medico-legal purposes and these assessments must be attended by competent practitioners exercising great skill in ensuring that their physical and clinical examinations, examination of documentary material, diagnosis and expression of opinion concerning a variety of matters are at the highest possible level. Opinions of this kind expressed by psychiatrists play a significant part in the assessment of claims for workers' compensation, damages for personal injury, matters relating to family law disputes including disputes concerning the care and custody of children, other matters concerning children in need, superannuation disputes and the like. Many of these opinions are expressed in conformity with obligations imposed by the courts and this Tribunal and require practitioners furnishing such opinions to act with great objectivity. I cannot comprehend that work of this nature undertaken by a medical practitioner can have any lesser significance for the protection of the health and safety of the public and in the public interest than clinical work. I reject this submission. 5. Furthermore, I cannot perceive that it is appropriate to grant the stay subject to the creation of conditions as sought by the applicant which, in reality, take the current practice conditions as a base, and create greater detail by requiring the applicant to have a one hour break between patients, to undertake extensive transcription of information and dictate reports immediately after seeing patients, to submit to an audit, to practice under supervision and the like, and to attend for treatment by a psychiatrist specialising in drug and alcohol matters, and significantly, "to have 4 alcohol free days per week and not to drink more than three standard drinks on the other days." I have already referred to the consistent breach by the applicant of his practice conditions over a period of time. There can be no confidence, because of his attitude or, at the least, indifference, that he will abide by practice conditions if it does not suit him. This conclusion militates against the grant of a stay subject to conditions. 6. In circumstances where there are undoubted appropriate bases for the delegates to have suspended the registration of the applicant, and because, for the reasons which I have outlined, the applicant does not have good prospects of succeeding on his appeal, the balance of convenience does not favour the grant of a stay of the suspension of his registration. There are no other factors which would militate towards a contrary result. For these reasons, I dismiss the application. Costs 1. The parties did not make detailed submissions concerning costs, but requested that I make preliminary observations. Having regard to the order which I propose to make dismissing the application for a stay and the basis for that order, I observe that it is arguable that if the respondent seeks a cost order in its favour, that such an order would normally be made. I shall formally reserve costs and grant liberty to apply. Orders I make the following orders; 1. The application for a stay is dismissed. 2. Costs are reserved with liberty to apply which should be exercised within one month of this date. ********** 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: 29 September 2017