Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Noore [2017] NSWCATOD 145 Hearing dates: 27-29 September 2017 Date of orders: 19 October 2017 Decision date: 19 October 2017 Jurisdiction: Occupational Division Before: D A Cowdroy ADCJ OAM QC, Principal Member M Cox, Professional Member C Gardiner, Lay Member G Smith, Professional Member Decision: (1) That Dr Faizur Noore is guilty of unsatisfactory professional conduct in respect of Complaints 1, 2 and 3. (2) That the suspension imposed upon Dr Faizur Noore pursuant to s.150 of the National Law be lifted pursuant to s.150G of the National Law subject to the conditions set out in Annexure A hereto. (3) That Dr Faizur Noore pay the costs of and incidental to these proceedings unless within 21 days an application is made by him for a different order. Catchwords: Professional misconduct-unsatisfactory professional conduct-medical practitioner consuming illicit drugs-practitioner prescribing drugs to person with whom practitioner had close personal relationship contrary to cl 3.14 of Code of Conduct for Doctors in Australia- prescribing drugs to person when practitioner had no specialist experience for treatment in the subject matter-Practitioner suffering from substance and depressive disorder. Substance use disorder Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Practitioner Regulation National Law (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 Reimers v Medical Council of New South Wales [2015] NSWCATOD 38 Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 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 Spicer v New South Wales Medical Board and Ors (unreported, NSWCA, Thursday 19 February 1981) Health Care Complaints Commission v Do [2014] NSWCA 307 Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Faizur Rahman Noore (Respondent) Representation: Counsel: P Aitken (Applicant) S Barnes (Respondent Solicitors: Health Care Complaints Commission (Applicant) TressCox Lawyers (Respondent) File Number(s): 2017/00138540 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the persons known as Person A and Person B in the Complaint attached to the Application and the name of any other person that would identify the names of those persons is not to be published or broadcast without the leave of the Tribunal REASONS FOR DECISION 1. The Health Care Complaints Commission ("the Applicant"), by Application for Disciplinary Findings and orders filed on 9 May 2017, seeks orders for confidentiality pursuant to s64 of the Civil and Administrative Tribunal Act ("CAT Act") in relation to persons known as Person A and Person B in the Complaint attached to the Application. Further, the Applicant seeks an order, pursuant to s.149A of the Health Practitioner Regulation National Law (NSW) ("the National Law"), that Dr Faizur Rahman Noore ("the Respondent") be cautioned, reprimanded or conditions be imposed upon him in his Practice and alternatively, orders pursuant to s.149C of the National Law to suspend or cancel the registration of the Respondent. The Applicant also seeks costs. Conduct complained of 1. By its complaint, the following information is provided in respect of the Respondent (who, for convenience, shall also be referred to as "the Practitioner"). The Complaint "Dr Faizur Noore ("the practitioner") of [address], being a medical practitioner registered under the National Law, BACKGROUND The practitioner was first registered with the Australian Health Practitioner Regulation Agency (AHPRA) on 17 December 1985. In 1993 he became a Fellow of the Royal Australian and New Zealand College of Psychiatrists. In 2001 he became a Fellow of the Faculty of Pain Medicine, Australian and New Zealand College of Anaesthetists. During the relevant period the practitioner was employed as a consultant liaison psychiatrist and specialist pain medicine physician at Nepean Hospital until April 2015 and thereafter solely in the capacity of pain medicine physician as well as in the role of Visiting Medical Officer in pain medicine at Liverpool Hospital. COMPLAINT ONE 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, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the particulars of this Complaint in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. PARTICULARS OF COMPLAINT ONE Person A 1. In or around August 2015 the practitioner inappropriately prescribed Caverject to Person A in circumstances where; a. the practitioner had a close personal and sexual relationship with Person A contrary to clause 3.14 of the Code of Conduct for Doctors in Australia; and b. the practitioner did not have specialist experience in the area of erectile dysfunction. 2. In or around July or August 2015 the practitioner inappropriately prescribed Diazepam (5mg) to Person A in circumstances where the practitioner had a close personal and sexual relationship with Person A contrary to clause 3.14 of the Code of Conduct for Doctors in Australia (published March 2014). 3. On or around 22 August 2015 the practitioner sent a text message to Person A stating, "To help you with your cash flow I write scripts you know what for you which you can sell'. Person B 1. In or around August 2015 the practitioner inappropriately prescribed Caverject to Person B in circumstances where; a. the practitioner had a personal relationship with Person B contrary to clause 3.14 of the Code of Conduct for Doctors in Australia; and b. the practitioner did not have specialist experience in the area of erectile dysfunction. Self-Prescribing After 9 December 2015 the practitioner issued a prescription for Diazepam in a false name in circumstances where: a. his registration has been suspended on 9 December 2015; he backdated the prescription to 6 or 7 December 2015; and b. he issued the prescription for his own use. COMPLAINT TWO Has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of medicine. PARTICULARS OF COMPLAINT TWO 1. The practitioner suffers from: a. substance abuse disorder; and b. depressive disorder COMPLAINT THREE is not competent to practise the profession of medicine under section 139 of the National Law as the practitioner does not have sufficient physical and/or mental capacity to practise the profession. PARTICULARS OF COMPLAINT THREE 1. The practitioner suffers from an impairment as particularised in Particular 1 of Complaint Two above. 2. The practitioner's impairment is of a sufficient nature and degree to impair the practitioner's mental capacity to practise the profession. SCHEDULE TO COMPLAINT OF THE HEALTH CARE COMPLAINTS COMMISSION CONCERNING Dr Faizur Noore REFERENCE IN COMPLAINT IDENTITY OF PERSON Person A Suppressed Person B Suppressed" The Respondent's Reply 1. The Respondent admits the conduct referred to under Complaint 1 and under Complaint 2. The Respondent does not admit that he is not competent to practise medicine as alleged in Complaint No 3. Background of Respondent 1. The Respondent was born on 24 August 1962. He attended the University of Sydney between 1981 and 1985 and thereafter Yale University in 1985 in the final year elective term. He was awarded his MBBS in 1986. 2. Following his qualification he undertook postgraduate studies at the University of Sydney between 1990 and 1993, attaining a Master in Medicine (Psychotherapy) in 1994. 3. In 1993, as has already been referred to in the Complaint, he became a Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP); and in 2001 he became a Fellow of the Faculty of Pain Medicine, Australian and New Zealand College of Anaesthetists (FPMANZCA). 4. The Respondent has held several important positions. From 2013 to 2015 he was a Specialist in Pain Medicine and Deputy Director Pain Management Services, Nepean Hospital. He has held other appointments, such as Supervisor, Supervisors of Training (Aus/NZ/Singapore/Hong Kong) for FPMANZCA; Member of the Education Committee for FPMANZCA; Member of the Curriculum Redesign Group FPMANZCA; Member of the Training Unit and Accreditation Committee FPMANZCA. 5. With respect to positions involving Pain Management, the Respondent has been a Member of the Executive Committee for Pain Management; Member of the Evaluation Committee for the NSW Pain Management Model of Care (2012-2016). 6. The Respondent has been involved in teaching of Pain Fellows; Anaesthetic Registrars, Interns and Residents in respect of both Medicine and Psychiatry; was an Examiner at the University of Sydney, the University of New South Wales and the University of London (St Mary's Hospital Campus). 7. The Respondent has attended conferences in both Singapore (2014) in relation to a Workshop relating to Borderline Personality Disorder and at the University of Sydney (2014) concerning Pharmacotherapy in Pain Medicine. 8. In his career the Respondent has served at St Vincent's Hospital Darlinghurst and Liverpool Hospital as an Intern; then a Resident Medical Officer at Westmead Hospital. He was a Registrar in Psychiatry at Westmead Hospital from 1988 to 1992; then Senior Registrar in Psychiatry at that Hospital from 1992 to 1993. He became the Senior Registrar in Psychiatry at St Mary's Hospital, Paddington, London (1993-1994); undertook a Locum VMO in Consultation – Liaison Psychiatry at St George Hospital, Kogarah (1994-1995) and was Director, Consultation – Liaison Psychiatry at Sutherland Hospital from 1995 to 2000. 9. The Respondent has undertaken research in several areas, including Parkinson's disease, Depressive Illnesses, Psychiatric Involvement with HIV patients; and since 2000 has been investigating the rates of physical and sexual abuse in patients with chronic and recurrent abdominal pain. He has published numerous academic papers. Facts surrounding the Complaint 1. On 26 August 2015, as the result of Police investigations, it became apparent that the Respondent had become a user of crystal methamphetamine (MA). Such use followed a period when he had ceased alcohol consumption. He initially reported a relatively brief period of MA use but subsequently admitted to commencing MA use in 2013. 2. When the matter came to the attention of the Medical Council of New South Wales, shortly after August 2015, proceedings were instituted under s.150 of the National Law. On 9 December 2015 an inquiry was conducted by the Medical Council of New South Wales and on 28 January 2016 it published its reasons. As a consequence, on that day, pursuant to s150(1)(a) of the National Law, the Respondent's registration was suspended with effect from 5.00 pm on Wednesday, 9 December 2015. 3. In the course of its decision, the following was noted: "There is no concrete evidence in the form of UDT results that Dr Noore has stopped using ice. There are no protections in place to prevent relapse, such as engagement with or even identification of a treating practitioner or service. There is no evidence of steps taken to reassure the Council about Dr Noore's performance in the workplace, including any impacts on patients, such as identifying or confiding in a senior colleague. The history Dr Noore has provided to us is one of escalating drug use leading to impaired judgement. We cannot be reassured on the basis of his oral evidence alone that his judgement is no longer impaired. While we understand that this has been a difficult time for Dr Noore and that he has experienced shame and regret for his actions, the fact that he has not taken any action in the 3 months since being contacted by NSW Police, to support his evidence or to indicate that a program of recovery and support has commenced does not reassure the delegates." Evidence before Tribunal 1. Before the Tribunal, evidence was adduced from Dr Bruce Westmore, who provided two reports, namely on 19 April 2016 and 14 August 2017. As appears from the Reports, the commencement of the use by the Respondent of MA resulted from personal reasons which it is unnecessary to disclose. The Respondent informed Dr Westmore that he stopped using MA from 20 December 2015, and told Dr Westmore that that was his "clean date". It was noted that the Respondent was taking Lexapro, 10mg per day, which he stated had "really helped". 2. In his first report (19 April 2016) Dr Westmore noted that the Respondent had engaged in several strategies to overcome his substance use problems and made certain recommendations for the rehabilitation of the Respondent. 3. In his second report dated 14 August 2017, Dr Westmore noted that the dosage of Lexapro had increased to 20mg per day, which commenced in February 2016. During the second interview with Dr Westmore on 9 August 2017, the Respondent acknowledged that he had had two relapses, namely in April 2016, which continued to 24 June 2016; and again, from 16 December 2016 to 26 December 2016. 4. Dr Westmore made the following psychiatric diagnosis of the issues suffered by Dr Noore in his first report, as follows: "PSYCHIATRIC DIAGNOSTIC ISSUES Dr Noore suffers from a Substance Use Disorder and he currently suffers from a Depressive Disorder. The differential diagnosis would include a moderate to severe Adjustment Disorder with depressed and anxious mood (my provisional diagnosis), or in the alternative, a Major Depressive Disorder. Despite the serious nature of the matters now being considered, he does not have an Antisocial Personality Disorder and, based on his history, no other personality disorder could be diagnosed, although clearly he does have some underlying vulnerabilities, these possibly arising from his exposure to a range of traumatic early childhood experiences." 1. In the course of his second report, Dr Westmore observed: "5. Dr Noore does currently suffer from an impairment pursuant to Section 5 of the National Law. The most relevant impairment is the Amphetamine Use Disorder and the accompanying Depressive Disorder which is likely to be complex in its aetiology. 6. In relation to whether or not Dr Noore is currently "fit to practice the profession of medicine", I would indicate that it is my opinion that he does remain "vulnerable to further relapses" at this particular time. The basis for that opinion is the highly addictive nature of his illicit drug of choice, its easy availability and his previous history of decompensating at times, particularly in stressful situations. Having said that, however, I cannot give you a sensible prediction as to what his real risk/relapse potential [sic]. I certainly would acknowledge that he is taking multiple appropriate steps to try and maintain sobriety and to try and maintain his professional skills. I also believe that he is greatly "shamed" because of his behavioural problems and I note the very negative impact his recent relapses have had on him personally and on his family life. I think these will be powerful motivating factors to help him maintain his sobriety. Should Dr Noore be able to return to medical practice then it will be essential that multiple supports and supervisions be put in place." 1. Dr Westmore considered the prospect that Dr Noore would be able to return to practice and observed that there would need to be restrictions, including thrice weekly urine drug tests and to continue with intense treatment with all his clinicians and to remain free of all illicit drugs. Further, he would need to continue with Alcoholics Anonymous and Narcotics Anonymous; and with the Doctors in Recovery Group. Dr Westmore also recommended that there be a limit on the number of hours which Dr Noore be permitted to work and in respect of his workload, to reduce some of the general stressors in his life. 2. Dr Westmore continued: "8. The treating psychiatrist Dr Miller notes Dr Noore's traumatic early life and the impact these events is likely to have had on him and other family members. I note in particular that he witnessed the death of his sister and his mother's mental health problems and, ultimately, his mother's murder during a home invasion. Dr Miller, as noted earlier, diagnosed Dr Noore as suffering from a Narcissistic Personality Disorder. Dr Noore himself readily agreed with that particular diagnosis and although I indicated in my first report that I was not able to identify any major or significant personality pathology in Dr Noore, I would defer to the opinion of Dr Miller who has had the opportunity to have had extended contact with Dr Noore over an extended period of time. …" 1. Having observed that Dr Noore appeared "reasonably optimistic that his personality issues could be changed, treated and altered", Dr Westmore concluded: "Because of the nature and extent of his various addiction problems, and the highly addictive nature of his drug of choice, I am of the view that Dr Noore will require long term support and supervision from the Council, probably extending over many years. He is at this time, however, highly motivated and very active in terms of his recovery and I would see that as being a positive prognostic indicator, despite the other possible negative indicators I have identified." RESPONDENT'S EVIDENCE Dr Deepinder Miller 1. Dr Deepinder Miller, Consultant Physician in Psychiatry, provided a report dated 8 August 2017. Dr Miller has seen Dr Noore twice weekly since 2 February 2016. She was not aware of the relapses, during the period of her consultations with him which occurred in April to June 2016; nor of the shorter period of relapse in December 2016. However, Dr Miller accepted the explanation of Dr Noore that if such relapses were revealed at the time of their occurrence, he feared being "judged, admonished and "sacked" as a patient". Dr Noore also expressed his fear that if his therapy sessions were abruptly ceased, he would lose an important support person in his life when he had so few left. 2. Dr Miller has been a continuous source of support for Dr Noore since 2 February 2016. In August 2017 she diagnosed his condition as: "DIAGNOSIS Dr Noore is suffering from: 1. Adjustment Disorder with mixed anxiety and depressed mood. 2. Narcissistic Personality Disorder, insecure type. 3. Amphetamine Use Disorder, currently in remission." 1. Dr Miller expressed the following conclusion: "I am of the opinion that Dr Noore is fit to resume practising medicine, however he should return to his profession in a graded manner. It would be my recommendation that he initially return to clinical work on a part-time basis under supervision and that his hours of practice should be gradually increased to full-time work over a three to six month period, as determined by his clinical supervisors." 1. Dr Miller was extensively cross-examined. It became apparent that she had had a very positive and extensive influence on Dr Noore's recovery. She referred to the shame he experienced, resulting from the first relapse and the second relapse; his sense of loss when his family decided to have nothing to do with him; of the significance of support networks to assist in Dr Noore's recovery. She considered that whilst no guarantee could be made, that Dr Noore would not relapse, she considered the risk as "very small to negligible". She expressed such opinion based upon the fact that there is an extensive support network for Dr Noore, he has undergone significant therapy, and for the past 12 months his friendships have been resumed and his family, especially his daughter whose support he values immensely, has resumed contact with him. 2. Dr Miller considered that the risk of relapse was one, possibly two on a scale of ten. 3. If Dr Noore were permitted to practise, she considered that he would require category B supervision. Such a category would allow him to undertake daily work without constant supervision. Dr Noore also believed that he should return to work on a graded basis, initially commencing at two days per week and after a month, increasing to three days and progressively increasing thereafter to a full workload. 4. She considered that such gradual return to work would minimise the risk of regression. However, she considered that there should be regular appointments with his supervisor to de-brief and that he should have ready access to supervision. 5. Dr Miller considered that his treatment should continue into next year at least. She was confident that, whereas Dr Noore had effectively lost all support mechanisms when he commenced his use of MA, which resulted in his matrimonial separation and divorce from his wife and his children, Dr Noore is now positive, is willing to take responsibility and should be able to cope. 6. Dr Miller considered that the addiction to MA was caused by depression and such depression had existed for many years, resulting from traumatic events in Dr Noore's life. Dr Noore's father was a diplomat. As such, his family were required to travel and live in many parts of the world and their periods in any one country were insufficient to form stable friendships. Further, the relationship between the father, who was described as "demanding" and Dr Noore's mother, was often difficult. There was much friction between the parents, both of whom have now passed away. In his early life, an accident occurred when Dr Noore lost his sister and he had blamed himself all his life for her death. Dr Miller considered that these past traumas had to be addressed and that they were the cause of the initial depression. Dr Noore had become very insecure and had attempted to conceal such feelings by bravado. 7. Dr Miller considered that Dr Noore should remain in Sydney to work, where he has all his support mechanisms available, and that he is fit now to resume. With the support of his family, friends and professional colleagues in a group practice, he should continue to progress. Dr Craig Rodgers 1. Dr Craig Rodgers is a General Practitioner who has expertise in drug rehabilitation and management. 2. Dr Rodgers was first consulted by Dr Noore on 21 December 2015. Dr Rodgers has provided a report dated 22 July 2017 in which he provided his diagnosis and treatment. Dr Rodgers referred Dr Noore to Dr Miller. It is apparent that Dr Noore has also relied heavily upon the support of Dr Rodgers. Dr Rodgers considered that whereas, on his first few consultations he considered that there was a risk that Dr Noore would take his own life, Dr Noore is now more stable, his thinking and concentration capacities have increased and the craving for MA has decreased. 3. Dr Noore had testified that he had two recent incidents when he briefly thought of MA: one in a dream, approximately 2-3 months ago, and another whilst he was walking on Cronulla Beach, which came to him as a "flash". Dr Rogers did not consider that such thoughts were necessarily indicative of further use. 4. Dr Rodgers considered that Dr Noore had been preparing himself for return to work. The low mood, difficulties with organisation and concentration and "staying on track in conversations" were no longer present. 5. Dr Rodgers was extensively cross-examined concerning a letter he had written to Dr Noore's insurers on 29 June 2016. In such letter, Dr Rodgers had referred to the difficulties then being experienced by Dr Noore, and stated that he (Dr Noore) was unfit to resume work; that he had a high relapse rate; was still quite anxious and depressed, and was not ready to return to work. 6. Dr Rodgers' testimony was that such condition was no longer applicable and that Dr Noore could return to work subject to conditions. 7. It should be noted that Dr Miller had also written to the insurer in or about June 2016 expressing similar views to those which Dr Rodgers had expressed at that time. Dr James Yu 1. Dr James Yu is the Principal of Sydney Spine and Pain Clinic. Dr Yu has provided a letter to the Tribunal stating that he will readily provide a suitable position for Dr Noore if he is permitted to practise and will provide the required supervision. His letter indicates that he would envisage commencing Dr Noore as a Pain Medicine Physician (under Level 1 supervision) and that for the first two months his work would be restricted to consultations and delivery of lectures; after two months Dr Noore would be able to see chronic pain patients under Level 1 supervision and to perform physical and psychosocial assessment of chronic pain patients under supervision. Thereafter, his work would progress. 2. Dr Yu anticipated conditions which might be imposed on Dr Noore's registration which include only being permitted to practise in a group practice approved by the Medical Council; obtaining Council's approval prior to changing the nature or workplace of his practice; having a supervisor; undergoing urine drug screening and continuing his current treatment with his medical practitioners. Dr Yu noted that he will be pleased to serve as his work supervisor and that he would be able to comply with any conditions which the Tribunal might impose. CONSIDERATION Principles 1. Section 3A of the National Law requires that the "protection of the health and safety of the public must be the paramount consideration" when considering inter alia an application to practise medicine. Inherent in such requirement is that the applicant to practise must be considered to be a "fit and proper person" to practise. In Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at [56], Toohey and Gaudron JJ said of such definition: "However, depending on the nature of the activities, the question may be 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 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] NSWCA 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 authorities establish that, where the failure to observe the high standard required of those engaged in their profession occurs, action may be taken 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. It is well recognised that action may be required by the relevant authority to protect the public from further transgression: see Law Society of New South Wales v Walsh [1997] NSWCA 185. Further, it has been held that where a practitioner shows a reckless disregard for the law with respect to the prescribing of drugs, such conduct may demonstrate unfitness to be a medical practitioner: see Spicer v New South Wales Medical Board and Ors (unreported, NSWCA, Thursday 19 February 1981) at 5-6 where Hope JA, with whom Reynolds and Hutley JJA agreed, said: "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. More recently, 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. It has also been recognised that where conduct is regarded as sufficiently serious, deregistration or suspension from practice may involve an element of punishment: see Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. Present Circumstances 1. The Tribunal observes that there is no evidence that any patient has suffered as a result of any of the conduct which has led to Dr Noore's suspension. Further, the Tribunal notes the very extensive experience and expertise which Dr Noore has attained in his practice of psychiatry. The Tribunal also takes into consideration the fact that Dr Noore has developed a deep insight into himself and his own conduct and of the particular circumstances which led to his suspension. He has engaged in long-term psychotherapeutic treatment with Dr Miller and 12 step meetings including Doctors in Recovery. 2. Although, at the s.150 Hearing, Dr Noore did not disclose all of the circumstances, the Tribunal noted his explanation that he was given very short notice of such hearing which led him to be inadequately prepared, and notes that within a very short time thereafter, his solicitors wrote to the Members of the Hearing Panel to correct certain inaccuracies. Dr Noore was also in the active phase of MA addiction and his judgment was impaired at the time by that. 3. The Tribunal also notes that when the police communicated with Dr Noore, he promptly sought medical assistance from Dr Craig Rodgers, who has expertise in drug-related matters, and thereafter from February 2016 has consulted Dr Miller twice weekly. 4. Dr Noore made the concession that although none of his patients had suffered; he felt that in fact they could have because he may not have been able to provide them with the very best treatment or advice because of his impairment. Certainly the hospital records of his peers record that his behaviour, towards the end of 2015, was unusual in that he appeared aggressive and his relationships with other work colleagues were breaking down. 5. Dr Westmore considered that Dr Noore is in the early stages of recovery and will require considerable ongoing treatment. Nevertheless, he considered that Dr Noore could return to practice subject to conditions. He considered that the chance of relapse was around 6/10. 6. Dr Miller considered that the chance of relapse was very low and on the scale, could be 1-2/10. 7. Dr Craig Rodgers also considered that Dr Noore could return to practise medicine and that the chance of relapse was small to moderate. 8. All treating practitioners agreed that the prospect of a relapse could not be wholly excluded. 9. Dr Noore has now been suspended for a period approaching two years during which time he has undergone intense treatment. The Tribunal notes there were two relapses, each of which occurred in the context of identified stressors. However, the Tribunal is satisfied that the risk of relapse is low in view of the fact, particularly, that his family has made it plain that their relationship with him will cease in the event there is any further relapse. Further, Dr Noore has sufficient insight to realise that the loss of his family connection, and the loss of his profession, would be so calamitous that he will not proceed to engage in drug taking. This assumes Dr Noore's ongoing engagement in his treatment program including meetings of Doctors in Recovery, Narcotics Anonymous, Alcoholics Anonymous, regular treatment with Drs Miller and Rodgers and monitoring through three times weekly UDT. 10. It is apparent from the medical reports that Dr Noore has made a substantial improvement. On 20 November 2016 Dr Miller had written to the insurer of Dr Noore expressing the view that she was not comfortable with Dr Noore returning to his duties at that stage. Dr Miller's opinion essentially confirmed those of Dr Rodgers expressed to the insurer on 29 June 2016. Applicant's Submission 1. The Applicant submits that Dr Noore's disorders are of such severity as to deprive him of sufficient physical and/or mental capacity to practise medicine. Accordingly, the Respondent should be permanently removed from the Register of Practitioners. 2. Alternatively, the Applicant submits that, accepting Dr Westmore's evidence that Dr Noore is in the early stages of recovery, if the Tribunal considers that Dr Noore should be able to return to practice, stringent conditions should be imposed. Such conditions should include critical compliance conditions as envisaged pursuant to s149A(4) of the National Law. Findings 1. The Tribunal accepts evidence that Dr Noore's aberrant behaviour from 2015 until detection was contributed to by undiagnosed depression contributed to, in part, by numerous traumatic experiences in his early life. The Tribunal accepts Dr Miller's diagnosis that such depression contributed to his addiction to MA. The Tribunal also accepts the evidence that substantial progress has been made by Dr Noore in his recovery and that the chance of relapse, in view of his insight into the consequences, is low. However, the risk of such an occurrence cannot be completely eliminated. For this reason, the Tribunal finds that Dr Noore, having had a suspension of approaching two years, should be permitted to return to practice subject to rigid conditions. 2. The conditions to be imposed will include critical compliance conditions concerning any failure to attend two consecutive urine tests without explanation being provided within 48 hours of the second due testing date. By this means, any relapse should become readily apparent, and the consequences of any such relapse will result in deregistration. Orders 1. The Tribunal makes the following findings and orders: 1. That Dr Faizur Noore is guilty of unsatisfactory professional conduct in respect of Complaints 1, 2 and 3. 2. That the suspension imposed upon Dr Faizur Noore pursuant to s.150 of the National Law be lifted pursuant to s.150G of the National Law subject to the conditions set out in Annexure A hereto. 3. That Dr Faizur Noore pay the costs of and incidental to these proceedings unless within 21 days an application is made by him for a different order. ******** 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 Annexure a Critical Compliance Conditions/Orders 1. To abstain from using Methamphetamine or any other illicit drug. 2. Subject to the exemption provided for below, to comply with the requirements of the Medical Council of New South Wales Urine Drug Testing (UDT) Protocol (as varied from time to time) and attend for thrice weekly UDT at his own expense. To obtain prior approval from the Council for any non-attendance for UDT. To authorise the testing facility to forward all the results of UDT to: 1. the Council appointed psychiatrist 2. treating practitioners 3. the Council 1. Failure to attend for UDT on two consecutive occasions without adequate explanation provided within 48 hours of the second due testing date shall constitute a breach of the critical compliance condition (s 149A (4) and (5). It is not a breach of this condition if a written explanation for a missed test is provided to the Council within 48 hours and that explanation is subsequently accepted by the Council. Furthermore, it is not a breach of this condition if the respondent is rendered incapable of autonomous decision-making or communication. Conditions/Orders 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. To practise no more than 16 hours per week or any more than 6 hours on any given day. 3. To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; or 3. A significant change in health status (including a significant temporary change). 1. must provide the Council with the professional details of the treating practitioner. 1. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; or 3. A significant change in health status (including a significant temporary change). 1. must provide the Council with the professional details of the treating practitioner. 1. To attend for treatment by an addiction specialist of his choice. This specialist should be either an Addiction Medicine Specialist (FAChAM) or a specialist in Addiction Psychiatry (Cert. Addiction Psych.) The addiction specialist could also function as the practitioner's GP or Psychiatrist (as in Conditions 3 or 4) if both qualifications are held. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; or 3. A significant change in health status (including a significant temporary change). 1. must provide the Council with the professional details of the treating practitioner. 1. To attend a Medical Council of NSW Review Interview on a 3 monthly basis, or as otherwise directed by the Council. 2. To attend a review by a Council-appointed psychiatrist on a 3 monthly basis, or as otherwise directed by the Council. 3. To authorise the Medical Council of NSW to forward copies of the Impaired Registrants Panel report, subsequent Council Review Interview reports and other information relevant to his impairment to the Council Appointed Practitioners and his treating practitioners. 4. To take any medication prescribed by his treating practitioners. 5. Not to prescribe for self-medication. 6. 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 weekly meetings of the Doctors in Recovery Group and provide evidence to the Council of this attendance. 2. The Respondent must attend Narcotics Anonymous and/or Alcoholics Anonymous meetings at a frequency recommended by the practitioner's treating practitioner and provide evidence to the Council of this attendance. 3. To practise medicine under Level B supervision (in accordance with the Council's Compliance Policy – Supervision (as varied from time to time). To Nominate a Supervisor prior to commencing employment, to be approved by the Council to monitor and review his clinical practice and compliance with Practice Conditions in accordance with Level B Supervision as contained in the Council's Compliance Policy – Supervision (as varied from time to time). The Supervisor is to be provided with a copy of all conditions of registration, this written decision and the Council's Supervision Policy. All costs associated with the supervision arrangement are to be borne by the practitioner. The practitioner is to ensure that: 1. he and the Supervisor meet on a fortnightly basis for at least one hour, the first meeting to occur within one fortnight of being advised by the Council that his nominated Supervisor has been approved 2. at each meeting they must review the practitioner's work progress and address any relevant work-related or professional matters. 3. at each meeting the Supervisor is to complete a record of matters discussed at the meeting in a format prescribed or approved by the Council 4. the supervisor is to forward to the Council, initially on a three monthly basis, A Supervision Report in a format prescribed or approved by the Council. 5. the supervisor is authorised to inform the Council immediately if there are any concerns in relation to the practitioner's compliance with the supervision requirements, clinical performance, health or if the Supervisor relationship ceases. The practitioner authorises the Supervisor to provide such information to the Council. 6. in the event the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are to be forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship . Non-Publication Order 1. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the persons known as Person A and Person B in the Complaint attached to the Application and the name of any other person that would identify the names of those persons is not to be published or broadcast without the leave of the Tribunal. Review Body 1. The appropriate review body of these conditions is the Medical Council of NSW Prohibition Orders 1. N/A Suppression Orders 1. Patients' names and identifying details. Review Body 1. Medical Council of NSW. 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 Amendments 23 October 2017 - Address of practitioner suppressed as not relevant per Principal Member Cowdroy. 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: 23 October 2017