Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Cakan [2018] NSWCATOD 5 Hearing dates: 6 & 7 November 2017 Date of orders: 05 January 2018 Decision date: 05 January 2018 Jurisdiction: Occupational Division Before: G Mullane ADCJ Principal Member; Dr E Kok Senior Member; Dr A Demirkol Senior Member; Ms M Kelly General Member Decision: The respondent's registration as a medical practitioner is cancelled. The respondent may not apply for review of the decision until after 11 July 2019. The respondent must pay the applicant's costs of or incidental to the proceedings as agreed or as assessed. Catchwords: Medical practitioner, abuse of addictive drugs, breach of conditions of registration and misleading medical council-professional misconduct –registration cancelled. Legislation Cited: Health Practitioner Regulation National Law (NSW) ("the National Law"); Cases Cited: R v Byrne (1995) 193 CLR 501; Health Care Complaints Commission v MacGregor [2016] NSWCATOD 85; HCCC v Philipiah [2013] NSWCA 342 Category: Principal judgment Parties: Applicant: Health Care Complaints Commission Respondent: Irfan Cakan (Previously Irfan Kuroz) Representation: Counsel: Mr A.Britt (Applicant) Respondent: In Person Unrepresented Solicitors: Health Care Complaints Commission (Applicant) File Number(s): 2017/89412 REASONS FOR DECISION Introduction 1. These are disciplinary proceedings commenced by the Applicant against the Respondent. 2. The complaints of the Applicant against the Respondent practitioner are briefly: * Complaint One – That the practitioner contravened conditions of his registration regarding drugs of addiction, attending urine drug testing, and having blood taken for measurement of Carbohydrate Deficient Transferrin levels, by failing to attend urine drugs tests,. failing to have blood taken for tests, self-administering Schedule 4 Appendix D or Schedule 8 drugs or a narcotic derivative non-prescription compound analgesic or cold medication which are not prescribed by his medical practitioner and failing to comply with the Medical Council of NSW's Urine Drug Testing Protocol. It is alleged that each such incident constituted unsatisfactory professional conduct. * Complaint Two – That on multiple occasions the practitioner gave misleading, inconsistent and/or untruthful information to the Medical Council which conduct was improper or unethical conduct relating to the practice or purported practice of medicine and each occasion was unsatisfactory professional conduct. * Complaint Three – That the instances of unsatisfactory professional conduct under Complaints One and Two together are of a sufficiently serious nature to justify suspension or cancellation of his registration and constituted professional misconduct. * Complaint Four – is that the practitioner has an impairment within the meaning of Section 5 of the National Law being a substance abuse disorder, Major Depression or Bipolar Disorder. The Evidence 1. The evidence comprised: 1. Application and Complaint signed 16 March 2017; 2. Amended complaint; 3. Reply filed 26 July 2017; 4. AHPRA registration certificate as at 9 February 2017; 5. Medical Council of NSW registration certificate; 6. Referral from Medical Council to the HCCCC dated 19 October 2015; 7. Medical Council correspondence dated 11 November 2015 attaching s150 reasons for decision dated 10 November 2015; 8. Transcript of s150 Proceedings for 16 October 2015; 9. Medical Council chronology; 10. Registration conditions as at 29 September 2015; 11. Section 66 decision dated 11 June 2008; 12. Professional Standards Committee decision dated 15 September 2009; 13. Section 66 decision dated 1 September 2010; 14. Report by Dr Andrew Pethebridge (Council Appointed Physiatrist) – dated 7 April 2014; 15. Impaired Registrants Panel Report dated 2 July 2014; 16. Report by Dr Pethebridge dated 15 August 2014; 17. Council Review Interview Report dated 15 August 2014; 18. Report by Dr Pethebridge dated 4 November 2014; 19. Council Review Interview Report dated 7 November 2014; 20. Report by Dr Pethebridge dated 25 May 2015; 21. Impaired Registrants Panel Report dated 20 July 2015; 22. Medical Council Urine Drug Testing (UDT) Protocol – date of publication 4 June 2013; 23. Carbohydrate-Deficient Transferrin (CDT) testing policy; 24. A) Commission prepared table of compliance; B) HCCCC file note of 24 June 2016; 1. UDT samples tested positive for Morphine: 1. 6 June 2014 2. 13 June 2014 3. 17 October 2014 4. 24 October 2014. 1. UDT sample tested positive for Codeine dated 16 July 2014; 2. UDT samples tested positive for Cannabis: 1. 17 November 2014 2. 30 May 2016 1. UDT samples tested positive for Methyl Amphetamine dated 29 April 2016; 2. UDT samples tested dilute: 1. 25 May 2015 2. 15 June 2015 3. 9 September 2015 4. 21 September 2015 1. Email from Dr Kuroz advising of missed UDT due to moving house – dated 17 December 2014; 2. Front page of lease showing term of lease 17/12/14 – 16/12/15; 3. Medicare data – 29 patients; 4. Email from Dr Kuroz advising of missed UDT on 16 February 2015 due to illness – dated 18 February 2015; 5. Medical Certificate citing medical condition; 6. Medicare data – 26 patients; 7. Email from Dr Kuroz advising of missed UDT due to illness – dated 9 March 2015; 8. Medical Certificate citing migraine; 9. Medicare data – 27 patients; 10. Email from Dr Kuroz advising of missed UDT on 13 March 2015 due to illness – dated 17 March 2015; 11. Medical Certificate citing severe migraine attack; 12. Medicare data – 45 patients; 13. Email from Dr Kuroz advising of missed UDT on 16 March 2015 due to illness – dated 17 March 2015; 14. Medical certificate citing migraines; 15. Medicare data – 38 patients; 16. Fax from Dr Kuroz advising of missed UDT on 18 May 2015 due to illness – dated 19 May 2015 (faxed on 16 June 2015); 17. Medical certificate citing flu like illness; 18. Medicare data – 42 patients; 19. Email from Dr Kuroz advising of missed UDT on 29 June 2015 due to skiing – dated 29 June 2015 – attaching medical certificate dated 24 June 2015; 20. Flight Centre invoice; 21. Medicare data – 32 patients; 22. Email from Dr Kuroz advising of missed UDT on 1 July 2015 due to skiing – dated 29 June 2015; 23. Flight Centre invoice; 24. Medicare data – 18 patients; 25. Email from Dr Kuroz dated 18 July 2015 advising that he has been in Adelaide from 6 to 16 July 2015 attaching flight details; 26. Email from Dr Kuroz dated 18 July 2015 forwarding Jetstar ticket; 27. Email from Dr Kuroz advising of missed UDT on 27 July 2015 due to interstate travel – dated 10 September 2015 – with Virgin e-ticket; 28. Medicare data – 17 patients; 29. Email from Dr Kuroz advising of missed UDT on 29 July 2015 due to interstate travel – dated 10 September 2015 – with Jetstar e-ticket; 30. Medicare data – 25 patients; 31. Fax from Dr Kuroz advising of missed UDT on 17 August 2015 due to illness – dated 10 September 2015; 32. Medical certificate citing unfit for normal duties; 33. Medicare data – 29 patients; 34. Fax from Dr Kuroz advising missed UDT on 26 August 2015 due to illness – dated 10 September 2015; 35. Medical certificate citing unfit for normal duties; 36. Medicare data – 25 patients; 37. Fax from Dr Kuroz advising of missed UDT on 31 August 2015 due to illness – dated 10 September 2015; 38. Medical certificate citing unfit for work; 39. Medicare data – 36 patients; 40. Fax from Dr Kuroz advising missed UDT on 7 September 2015 due to illness – dated 10 September 2015; 41. Medical certificate citing unfit for normal work; 42. Medicare data – 11 patients; 43. CDT results 1. Wednesday 6 August 2014; 2. Wednesday 8 October 2014; 3. Wednesday 3 December 2014; 4. Wednesday 7 January 2015; 5. Wednesday 4 March 2015; 6. Wednesday 5 August 2015; 1. Dr Kuroz's email to Council re consumption of poppy seeds for 6 June 2014 – dated 19 June 2014; 2. Dr Kuroz's email to Council re Consumption of Nurofen Plus for 16 July 2014 – dated 28 July 2014; 3. Dr Kuroz's email to Council re Consumption of poppy seeds for 17 October 2014 – dated 10 November 2014; 4. Dr Kuroz's email to Council re Consumption of poppy seeds for 24 October 2014 – dated 13 November 2014; 5. Dr Kuroz's email to Council re Passive smoking for 17 November 2014 – dated 7 December 2014; 6. Letter from Council to Dr Kuroz – dated 10 June 2014; 7. Letter from Council to Dr Kuroz – dated 23 July 2014; 8. Letter from Council to Dr Kuroz – dated 28 August 2014; 9. Email from Dr Kuroz to Council – dated 13 October 2014; 10. Letter from Council to Dr Kuroz – dated 5 November 2014, enclosing 1. UDT result for 17 October 2014; 1. Email from Dr Kuroz to Council – dated 10 November 2014; 2. Letter from Council to Dr Kuroz – dated 11 November 2014; 3. Letter from Council to Dr Kuroz – dated 11 November 2014 enclosing 1. UDT result for 24 October 2014; 1. Email from Dr Kuroz to Council – dated 13 November 2014; 2. Email from Dr Kuroz to council – dated 28 November 2014; 3. Letter from Council to Dr Kuroz – dated 1 December 2014 – enclosing UDT result taken 17 November 2014 and CDT result for 8 October 2014; 4. Email from Dr Kuroz to Council – dated 7 December 2014; 5. Email from Dr Kuroz to Council – dated 8 December 2014; 6. Email from Dr Kuroz to Council – dated 17 December 2014 – attaching tenancy agreement, medical certificate dated 8 December 2014 and Flight Centre tax invoice; 7. Email to Dr Kuroz to Council – dated 8 January 2015; 8. Letter from Council to Dr Kuroz – dated 20 January 2015; 9. Email from Dr Kuroz to Council – dated 18 February 2015 attaching medical certificate from Dr Kamal Siddiqui dated 16 February 2015; 10. Email from Dr Kuroz to Council – dated 3 March 2015 attaching medical certificate from Dr Siddiqui dated 27 February 2015; 11. Written Reasons for Decision – dated 12 April 2016; 12. Council correspondence advising the Commission of lifting suspension – dated 11 March 2016; 13. Transcript of Proceedings for 2 March 2016; 14. Application for review from Dr Kuroz – dated 16 December 2015 – attaching medical certificate, UDT and CDT results; 15. Correspondence from Dr Kuroz to Council – dated 15 January 2016; 16. Summary of UDT and CDT results – September 2015 to February 2016; 17. Council correspondence advising of suspension – dated 15 July 2016; 18. Written Reasons for Decision – dated 21 July 2016; 19. Transcript of Proceedings for 12 July 2016; 20. Email from Council to Dr Kuroz – dated 20 May 2016 enclosing letter from Ms Jasmine McDonald to Dr Kuroz dated 20 May 2016; and copy of UDT result dated 29 April 2016; 21. Email from Dr Kuroz to Council – dated 20 May 2016; 22. Email from Dr Kuroz to John Stathopoulos – dated 21 May 2016; 23. Email from Council to Dr Kuroz – dated 21 Jun 2016 enclosing Drug Analysis Report for test taken 30 May 2016; 24. Email from Dr Kuroz to Council – dated 21 June 2016; 25. Email from Dr Kuroz to Council – dated 11 July 2016 enclosing letter from Dr Michael Atherton dated 8 July 2016 and letter from Dr Van Nguyen to Ms Emma Monger dated 11 July 2016; 26. A) handwritten statement from Dr Kuroz – dated 12 July 2016; B) Typed statement from Dr Kuroz; 1. Commission letter to Dr Kuroz requesting treating practitioners list – dated 4 February 2016; 2. Email from Dr Kuroz advising of practitioners – dated 9 February 2016; 3. Commission section 28 correspondence to Dr Kuroz – dated 20 May 2016; 4. Section 28 response from Dr Kuroz – dated 7 June 2016; 5. Commission section 40 correspondence to Dr Kuroz – dated 5 July 2016; 6. Section 40 response from TressCox on behalf of Dr Kuroz – dated 3 August 2016; 7. Letter from the Medical Council to the HCCCC dated 15 February 2017 enclosing Written Reasons for Decision dated 15 February 2017; 8. Report of Dr Pethebridge dated 28 December 2016; 9. Report of Dr Michael Atherton – dated 25 November 2015; 10. Report of Dr Terrance Lim – dated 29 July 2014; 11. Letter to the Medical Board from Dr Fatima Lowden – dated 11 July 2010; 12. Letter to the Medical Board from Dr Raj Choudhary dated 4 May 2010; 13. Report of Interview of 12 January 2016 with Dr Pethebridge – dated 24 February 2016; 14. Report of Interview of 15 June 2016 with Dr Pethebridge – dated 19 June 2016; 15. Review Interview Report – dated 20 June 2016; 16. Letter to Dr Pethebridge of 2 June 2017 and email of 5 July 2017 from the Commission; 17. Professional Standards Committee decision dated 15 December 2009; 18. Email from The Sydney Clinic (Dr Atherton) to NCAT dated 3 May 2017; 19. Faxed letter from Argyle Street Medical Centre to the Commission dated 4 May 2017; 20. Email from Myhealth Chatswood to Feneil Shah (HCCC) dated 5 May 2017; 21. Extract of records produced on summons by Rouse Hill Town Medical Centre; 22. Extract of records produced on summons by Myhealth Miranda; 23. Extract of records produced on summons by Dr Terrence Lim; 24. Extract of records produced on summons by The Sydney Clinic; 25. Change of name certificate dated 9 September 2016; 26. Letter from the Commission to Dr Cakan dated 22 September 2016; 27. Letter from Dr Cakan to the Commission dated 10 October 2016 with enclosures; 28. Letter from the Medical Council of NSW to the Commission dated 9 November 2016 enclosing s150A decision of 8 November 2016; 29. Letter from the Commission to Dr Cakan dated 23 December 2016; 30. Email from Dr Cakan to the Commission of 2 January 2017; 31. Email from the Commission to Dr Santiago Vazquez dated 23 August 2017 enclosing file note of a conversation between the Commission and Mr John Stathopoulos; 32. Report of Dr Vazequez dated 4 September 2017; 33. Medical report of Dr M J Atherton of 25 October 2017; 34. Statement of Practitioner dated 2 November 2017; 35. Correspondence from Avant Insurance to the practitioner including refusal of cover where complaint relates to breach of terms or conditions on Practitioner's registration; 36. Income Statement from Centrelink to Practitioner; 37. Bundle of Drug Analysis Reports from NSW Health Pathology Forensic and Analytical Science Service to Practitioner; 38. Report from Sydney South West Pathology Service to Practitioner; 39. Toxicology Report from Attorney General's Department of South Australia regarding hair Analysis; 40. Medical report from Best Care Medical Clinic Kellyville Ridge dated 23 July 2017; 41. Report from Odyssey House dated 30 June 2017; 42. Hair Analysis Drug Test Result from Psychemedics for sample taken 26 September 2017 and attached summary of testing process; 43. Article "Analysis of Extensively Washed Hair from Cocaine Users and Drug Chemists to Establish New Reporting Criteria" from Journal of Analytical Toxicology Advance Access published 6 August 2014; 44. Neuropsychological Assessment of Irfan Cakan by Richard McBride, Clinical Psychologist, dated 1 November 2017; 45. Oral evidence of the practitioner on 6 & 7 November 2017; 46. Oral evidence of Dr Pethebridge on 6 November 2017; 47. Oral evidence of Dr Atherton on 7 November 2017; and 48. Exhibit R1 – Email correspondence between Practitioner and Monash Institute for Health and Clinical Education including letter of 20 September 2017 acknowledging his payment to enrol in the "Monash University Short Course on Ethics" advising that the course is no longer running and will not occur in 2018 and also advises that a full refund for the fees will be paid. The Complaints 1. These are the complaints raised in the Application:- 2. Dr Irfan Cakan (previously Dr Irfan Kuroz) of 1/26 Ozone Street CRONULLA NSW 2230 ("the practitioner") being a medical practitioner registered under the National Law, COMPLAINT ONE 1. is guilty of unsatisfactory professional conduct under section 139B(1)(c) of the National Law in that the practitioner has: 1. Contravened a condition to which the practitioner's registration was subject. 1. Each of the particulars of Complaint One justifies a finding of unsatisfactory professional conduct individually. In the alternative, when two or more of the particulars of Complaint One are taken together, a finding of unsatisfactory conduct is justified. Background to Complaint One 1. The practitioner obtained his MBBS in 1989 from Sydney University. He became a Fellow of the Royal Australian College of General Practitioners in 1995. 2. From 28 May 2014 until 16 October 2015, the following conditions were imposed on the practitioner's registration: 3. To attend for thrice weekly Urine Drug Testing in strict accordance with the Medical Council of NSW protocol. Results of Urine Drug testing to be forwarded to the Council Appointed and treating practitioners and to the Council. He understands that such Urine Drug Testing will be at his expense. (health condition 6). 4. To have blood taken for measurement of Carbohydrate Deficient Transferrin levels at monthly intervals in strict accordance with the Medical Council of NSW protocol. The results of all tests to be forwarded to the treating and Council Appointed Practitioners and to the Council. He understands that such testing will be at his expense. (health condition 7) 5. On 16 October 2015, the practitioner's registration was suspended following proceedings under section 150 of the National Law. 6. On 6 March 2016, the practitioner's suspension was lifted and on 7 March 2016 until 12 July 2016 conditions were imposed including the following conditions: 7. 6. Not to self-administer any: 1. Schedule 4 Appendix D or 'drug of addiction" (Schedule 8 drug), or 2. Narcotic derivative, non-prescription compound analgesic or cold medication, 3. Unless such medications are prescribed by his treating practitioner and taken as directed by his treating practitioner. 4. Within seven days of being prescribed such treatment from his treating practitioner, he must: 1. Notify the Medical Council of NSW and Council appointed practitioners; and 2. Provide written confirmation of the treatment from the treatment practitioner. (new health condition 6). 1. To comply with the Medical Council of NSW's Urine Drug Testing Protocol (as varied from time to time) and attend for thrice weekly Urine Drug Testing at his own expense …." (new health condition 13) Particulars of Complaint One 1. The practitioner failed to comply with health condition 6 on his registration in that on the following dates he submitted Urine Drug Testing (UDT) samples that tested positive for morphine and which the practitioner attributed to his poppy seed consumption, contrary to clause 2.2 of the Medical Council of New South Wales' Urine Drug Testing Protocol (the UDT protocol). 1. 6 June 2014; 2. 13 June 2014; 3. 17 October 2014; 4. 24 October 2014. 1. On 16 July 2014, the practitioner submitted a UDT sample which tested positive for codeine and which the practitioner attributed to his use of Neurofen Plus tablets (a non-prescription compound analgesic). The practitioner failed to comply with health condition 6 on his registration in that he breached clause 2.1 of the UDT protocol which required him to abstain from self-administering any non-prescription compound analgesic. 1. The practitioner failed to attend for thrice-weekly Urine Drug Testing in strict accordance with the UDT protocol, in contravention of health condition 6 in that on the following dates the practitioner provided dilute urine samples: 1. 25 May 2015; 2. 14 June 2015; 3. 9 September 2015; 4. 21 September 2015. 1. The practitioner failed to attend for thrice-weekly UDT in strict accordance with the UDT protocol (clause 6.2), in contravention of health condition 6 in that on the following dates the practitioner failed to attend for UDT without written notification and explanation: 1. 6 October 2014; 2. 13 October 2014; 3. 29 December 2014. 1. The practitioner failed to attend for thrice weekly UDT in strict accordance with the UDT protocol (clause 6.1), in contravention of health condition 6 on his registration in that he failed to advise the Council in writing at leave five business days before the following planned absences from UDT: 1. 17 December 2014; 2. 30 March 2015; 3. 1 April 2015; 4. 29 June 2015; 5. 6 July 2015; 6. 8 July 2015; 7. 10 July 2015; 8. 6 July 2015; 9. 13 July 2015; 10. 15 July 2015; 11. 24 July 2015; 1. The practitioner failed to attend for thrice weekly UDT in strict accordance with the UDT protocol (clause 6.2), in contravention of health condition 6 on his registration in that he failed to advise the Council immediately in writing with an explanation for the following missed UDT test: 1. 19 January 2015 in that he only advised the Council of his absence on 25 May 2015; 2. 16 February 2015 in that he only advised the Council of his absence on 18 February 2015; 3. 13 March 2015 in that he only advised the Council of his absence on 17 March 2015; 4. 16 March 2015 in that he only advised the Council of his absence on 17 March 2015; 5. 18 May 2015 in that he only advised the Council of his absence on 16 June 2015; 6. 10 June 2015 in that he only advised the Council of his absence on 29 June 2015; 7. 12 June 2015 in that he only advised the Council of his absence on 29 June 2015; 8. 22 June 2015 in that he only advised the Council of his absence on 29 June 2015; 9. 24 June 2015 in that he only advised the Council of his absence on 29 June 2015; 10. 26 June 2015 in that he only advised the Council of his absence on 29 June 2015; 11. 17 August 2015 in that he only advised the Council of his absence on 10 September 2015; 12. 24 August 2015 in that he only advised the Council of his absence on 10 September 2015; 13. 26 August 2015 in that he only advised the Council of his absence on 10 September 2015; 14. 24 August 2015 in that he only advised the Council of his absence on 10 September 2015; 15. 31 August 2015 in that he only advised the Council of his absence on 10 September 2015; 16. 2 September 2015 in that he only advised the Council of his absence on 10 September 2015; 17. 4 September 2015 in that he only advised the Council of his absence on 10 September 2015; 18. 7 September 2015 in that he only advised the Council of his absence on 10 September 2015. 1. The practitioner failed to attend for Carbohydrate-deficient transferrin (CDT) testing on the first Monday of the month or on the very next business day in contravention of health condition 7 and the Council's CDT testing protocols for the following Mondays: 1. 4 August 2014; 2. 6 October 2014; 3. 1 December 2014; 4. 5 January 2015; 5. 2 March 2015; 6. 3 August 2015. 1. The practitioner's UDT result on 29 April 2016 was positive for methamphetamine and on retesting was positive for methamphetamine and amphetamine, both schedule 8 drugs of addiction under the Poisons and Therapeutic Goods Regulation 2008. In circumstances where the practitioner had not been directed by his treating practitioners to take those drugs, the practitioner failed to comply with: 1. new health condition 6 on his registration; 2. new health condition 13 on his registration and the UDT policy 2.1. 1. The practitioner's UDT result on 30 May 2016 was positive for cannabis metabolite. The practitioner failed to comply with new health condition 13 on his registration and the UDT policy (clause 2.1) in that cannabis metabolite is a substance listed in Schedule 1 of the Drug Misuse and Trafficking Act 1985 and the practitioner had not been directed by his treating practitioners to use cannabis. COMPLAINT TWO 1. is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has: 1. Engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 1. Each of the particulars of Complaint Two justifies a finding of unsatisfactory professional conduct individually. In the alternative, when two or more of the particulars of Compliant Two are taken together, a finding of unsatisfactory professional conduct is justified. Particulars of Complaint Two 1. The practitioner provided misleading, inconsistent and/or untruthful information to the Council in that he obtained and relied on medical certificates to explain his inability to attend UDT in accordance with his registration conditions on the following dates in circumstances where he claimed he was unable to attend UDT and then failed to inform the Council that he had instead consulted patients on the pre-arranged UDT dates: 1. 16 February 2015 by email dated 18 February 2015; 2. 9 March 2015 by email dated 9 March 2015; 3. 13 March 2015 by emailed dated 17 March 2015; 4. 16 March 2015 by email dated 17 March 2015; 5. 18 May 2015 by facsimile sent on 16 June 2015; 6. 17 August 2015 by facsimile sent on 10 September 2015; 7. 26 August 2015 by facsimile sent on 10 September 2015; 8. 31 August 2015 by facsimile sent on 10 September 2015; 9. 7 September 2015 by facsimile sent on 10 September 2015; 1. On 29 June 2015, the practitioner provided misleading, inconsistent and/or untruthful information to the Council in that he relied on an invoice for a holiday from 29 June 2015 to 3 July 2015 to explain his inability to attend UDT in accordance with his registration conditions on 20 June 2015 and 1 July 2015, when he knew on 29 June 2015 that he would not be attending the holiday and when he instead consulted with patients on those days. 2. On 10 September 2015, the practitioner provided misleading, inconsistent and/or untruthful information to the Council in that he relied on documents for travel to Adelaide from 24 July 2015 to 30 July 2015 to explain his inability to attend UDT in accordance with his registration conditions on 27 July 2015 and 29 July 2015, when he knew on 10 September 2015 that he had not travelled to Adelaide and he knew he had consulted patients on those days. 3. The practitioner did not attend for testing on 6 July 2015 as required by health condition 7 and the Council's UDT testing protocol and UDT as required by health condition 6 and the UDT policy on 6, 8, 10, 13 and 15 July 2015. The practitioner informed the Council on 18 July 2015 that he could not attend CDT testing and UDT on these dates because he would be in Adelaide from 6 July to 16 July. The practitioner provided misleading, inconsistent and/or untruthful information to the Council on 18 July 2015 in that he knew he had not travelled to Adelaide. 4. The practitioner provided misleading, inconsistent and/or untruthful information to the Council by correspondence on 21 May 2016 and again on 12 July 2016 in relation to a positive UDT result on 29 April 2016 for methyl amphetamine in that the practitioner stated he had attended a pub or club with friends and he attributed the positive result to passive smoking from his friend's use of methamphetamine or the spiking of his drink, when the practitioner knew that this was not the case. 5. The practitioner provided misleading, and/or untruthful information to the section 150 Medical Council of NSW delegates on 12 July 2016 in relation to a positive UDT result on 29 April 2016 for methyl amphetamine in that the practitioner told the delegates that he highly suspected someone had put something in his beverage at a social event as an explanation for the UDT result, when the practitioner knew that this was not the case. 6. The practitioner provided misleading, and/or untruthful information to the section 150 Medical Council of NSW delegates on 12 July 2016 in relation to a positive UDT result on 30 May 2016 for cannabis metabolite in that he practitioner told the delegates that he attributed the positive result to passive inhalation of cannabis smoke from the previous day, when the practitioner knew that this was not the case. COMPLAINT THREE 1. is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration Background to Complaint Three 1. As for Complaint One. Particulars of Complaint Three 1. Complaint One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively. COMPLAINT FOUR 1. 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 Four 1. The practitioner suffers from a substance abuse disorder, Major Depressive or Bipolar Disorder. 2. All particulars of Complaint One are repeated and relied upon. The Issues 1. The Respondent practitioner in his Reply filed 26 July 2017 and his statements at the hearing admits particulars of Complaints one and two. By his reply he admitted complaint 3, but on the last day of the hearing he withdrew his admission that the conduct particularised in complaint 3 constituted professional misconduct. 2. The extensive documentary evidence in the Applicant's case establishes the backgrounds and particulars of complaints 1, 2 and 3. 3. With regard to Complaint Four (impairment) the practitioner does not dispute the evidence that he has suffered from Substance Abuse Disorder and a Major Depressive Disorder but it appears his defence is that such impairments do not currently detrimentally affect ,and are not likely to detrimentally affect, his capacity to practice in the profession of medicine. Relevant History 1. The practitioner was first registered as a Medical Practitioner on 6 November 1989. He was registered under his then name of Irfan Kuroz. By March 2006 he was practising as a General Practitioner. The NSW Medical Board conducted proceedings against the practitioner under section 66 of the Medical Practice Act 1992 resulting in a decision of 9 May 2008. The proceedings occurred because of a notification from the Deputy State Coroner to the Health Care Complaints Commission arising out of the inquest into a death of a 50 year old female patient who will be referred to as "Patient A" because of previous non publication orders, and issues about the care and treatment provided by the practitioner to her. 2. Patient A consulted the practitioner on 21 March 2006 with chest pains and pain in her left arm. She came to his surgery unannounced and distressed that she was on her way to work but experienced the pain. She was fearful she was having a heart attack. The previous month she had suffered "acute myocardial infarction" and had been hospitalised for 5 days. It does not appear she told the practitioner that. The practitioner left the patient he was seeing, and examined Patient A. He caused an ECG to be performed. He considered the result to be normal. He prescribed a medication and allowed her to leave the surgery. She travelled to work. She later collapsed and died on a train. At the inquest into her death a consultant cardiologist gave evidence that the ECG result was "obviously abnormal". 3. At the inquest the practitioner, having heard the expert evidence of the consultant cardiologist, was asked whether he had any comments to make on the evidence that the ECG was obviously abnormal, responded that his view still was that it was "unremarkable. I would still treat the patient the same way". He said he would "still do the same thing". 4. The Coroner particularly asked him whether he would do anything differently in respect of the consultation and diagnosis now that he had the benefit of hindsight. She reported "He responded that he would not do anything differently". 5. The Coroner referred the matter to the Health Care Complaints Commission. When the Commission investigated the matter, it sought a peer review from an expert. His report expressed the opinion that the practitioner's notes, his interpretation of the ECG, his failure to make a diagnosis, and his decision to allow the patient to leave the surgery were significantly below the standard expected of a General Practitioner of the practitioner's training and experience. 6. The section 66 hearing occurred on 9 May 2008. It was found that the practitioner failed to recognise the indicators of "myocardial infarction secondary to atherosclerotic cardiovascular disease." The Medical Council imposed conditions on the practitioner's registration requiring him to: 1. Attend at his own expense the "Advanced Cardiology Workshop conducted by Health Workforce Queensland to be held on 24 & 25 May 2008". 2. Attend at least one educational course approved by the NSW Medical Board substantially dealing with resuscitation techniques. 3. Satisfy the Medical Board by 8 August 2008 that his medical records comply with the Medical Practice Regulation 2003 Part 3 Schedule 2 and meet any relevant standards developed and promulgated by the Royal Australian College of General Practitioners in "Standards for General Practices" (3rd Edition) and in particular Standard 1.7 "Content of Patient Health Records". 4. Provide a copy of the medical records of 20 patients who attended for a consultation with him since the date of that decision complying with the Medical Practice Regulation 2003 and meeting any relevant RACGP's Standards for General Practices. 5. If the NSW Medical Board considered it necessary, submit to an audit of a random selection of his medical records. 1. The enquiry also determined that the matter be referred to the Health Care Complaints Commission for investigation as a complaint. 2. There was subsequently an enquiry by the Professional Standards Committee in relation to that complaint, held on 25 November 2009. The enquiry found that the practitioner had failed to make an adequate record of the health service provided to the patient contrary to the Medical Practice Regulation 2003 including failures to:- 1. Make contemporaneous record as to the positive and negative findings of the history taken; 2. Document the positive and negative findings of the cardiovascular examination; 3. Document any clinical opinion or diagnosis; and 4. Make appropriate clinical notes that would assist another medical practitioner to continue management of the patient's case. 1. It was also found that in interpreting the ECG the practitioner: 1. failed to identify abnormalities; 2. failed to realise that the ECG did not indicate that the patient was clinically agitated, thyrotoxic or fearful about her chest pain; 3. failed to identify the abnormalities; 4. made a diagnosis which could not be substantiated on the basis of his consultation notes and that conduct was below the standard required in the Act; and 5. prescribed a drug, which was not clinically indicated for the diagnosis made by the practitioner (but this was not significant departure from the standard expected of him). 1. The Professional Standards Committee also found that the practitioner allowed the patient to leave the Medical Centre in circumstances when:- 1. The Centre's protocol on patients presenting with chest pain had been activated; 2. The history and examination notes complied by the practitioner do not provide evidence excluding cardiac disease; 3. The history and examination compiled by the practitioner should have resulted in further evaluation requiring the immediate transfer of the patient to a cardiac facility; and 4. There was no follow-up management plan. 1. The Professional Standards Committee concluded by finding the practitioner guilty of unsatisfactory professional conduct in that he: 1. Demonstrated that the knowledge, skill or judgment possessed or care exercised by him in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and 2. Contravened a provision of the Medical Practice Regulation 2003. 1. The Committee determined that the practitioner be reprimanded and imposed conditions on his registration. One condition was that he had to satisfy the Medical Board that his medical records comply with the requirements of the Medical Practice Regulation 2008 and any standards developed and promulgated by the Royal Australian College of General Practitioners (RACGP). This would be done by him submitting to an audit of a random selection of his medical records at the premises where he conducted his medical practice. The order provided that the auditor/s conducting the audit could conduct "such number of audits as it considers appropriate". 2. In June 2008 the practitioner took six (6) months leave from practicing as a medical practitioner. He informed the Medical Board in September 2008 that he was living in Turkey and intended to be there until at least the end of 2008. 3. From 2009 the practitioner consulted various psychiatrists for treatment of depression and drug abuse. Up to 2010 there was Dr Naidoo for 12 months, then Dr Choudhary on 4 May 2010, then Dr Fatima Lowden from mid-June 2010. In the first half of 2014 he commenced attending reviews by the Council appointed psychiatrist, Dr Andrew Pethebridge. Then in July 2014 his treating psychiatrist became Dr Terrance Lim. 4. On 2 & 3 May 2010 the practitioner and his treating psychiatrist, Dr Chaudhary, notified the Medical Board about his mental health problems and abuse of illicit drugs and alcohol. He said he was going to be admitted to Northside Clinic for rehabilitation (as Dr Chaudhary had recommended). The Council convened proceedings pursuant to section 66 of the Medical Practice Act 1992 on 16 July 2010. The Council was informed that the practitioner had not been working as a medical practitioner since April 2009. It was ascertained later that the practitioner did not admit himself to Northside Clinic. 5. Neither the practitioner nor his legal advisor attended the hearing. The psychiatrist said that he had seen the practitioner on only one occasion in late 2010 and at that time the practitioner had disclosed that he had been using the drug ice, smoking it regularly. He said he had a history of cocaine and alcohol abuse and described experiencing a range of depressive and anxiety symptoms, which he believed were the cause of his substance abuse. 6. The psychiatrist had encouraged him to notify the Medical Board about these matters and recommended that he seek admission to the Drug and Alcohol Unit at Northside Clinic. The Panel made enquiries but found that no admission had taken place. There was evidence that the practitioner had seen a Dr Lowden in mid-June 2010 requesting help for his anxiety and depression. He told her that he was currently living apart from his wife and children and he described to her:- "Poor impulse control with having a temper weekly and pushing his wife around but he told me that he did not hit her or anyone else. He had paranoid thinking about his wife having an affair with her cousin's husband …. and he was sexually abusing his daughter. He also thought he was a hero since during his last trip to China he prevented a plane taking off because he was upset about his friends missing the plane. He said soldiers with machine guns came and interviewed him and he successfully convinced them to let his friends come on board. He was the only fearless one." 1. He gave Dr Lowden a history of taking drugs which commenced six (6) years previously in about 2004 with "very occasional cocaine intake and gradually moved to ice and a lot of alcohol over the past three (3) years". 2. He admitted one suicide attempt in December 2009 with an overdose of ice. He discharged himself from hospital after five (5) days and said he had further suicidal thoughts in February and March 2010. The enquiry determined that the practitioner was suffering from an impairment within the meaning of the definition in the National Law and referred the matter to the Impaired Registrants' Panel. 3. The enquiry suspended the practitioner's registration from 10:30 am on 16 July 2010. 4. The practitioner wrote to the Council on 27 March 2014 requesting his suspension be lifted and that he be allowed to participate in the Impaired Registrant's Program. He stated that he had been mentally and physically well since April 2013. He attended an appointment with a Council Appointed Psychiatrist, Dr Andrew Pethebridge, on 27 March 2014 and the doctor provided the Council with a detailed report. 5. Dr Pethebridge reported to the Council that the practitioner told him that he was a non-smoker, he had tried marijuana once in his university years and "detested it". He had his first alcoholic drink at 35 and for 6 - 9 months during 2008 – 2010 he was drinking daily up to a third of a bottle of spirits and caffeinated soft drink (Red Bull). 6. He told the doctor that in the previous 12 months he had had only two (2) standard drinks of alcohol. He said he had started using cocaine in 2008 and methamphetamine on a roughly third monthly basis, the cocaine being snorted and the methamphetamine smoked. After his separation, which appears to have occurred in 2010, his use escalated to 2 – 3 times weekly. He said he had no cocaine for four years and no methamphetamine for 14 months. 7. The practitioner attended an Impaired Registrants' Panel Inquiry on 28 May 2014. It concluded, among other things, "self-report he has now not used Ice for 24 months and cocaine for four (4) years. His alcohol intake is minimal. Dr Kuroz impressed the Panel as being sincere in his wish to discuss his history in an open and forthright manner. However this was clearly difficult for him at times and there are understandably some aspects of his past behaviour that are difficult for him to talk about. Dr Kuroz appears to have a reasonable degree of insight into his situation and his vulnerabilities. He is aware that his behaviour was irresponsible and wrong. The extent of his drug taking has left him in a bit of a "blur" about the chronology and the details of the past few years. However, he was co-operative in attempting to give a clear and coherent history". 8. On 28 May 2014 the Medical Council in proceedings under section 173 of the National Law confirmed that the practitioner could return to work subject to extensive conditions imposed on his registration being:- Public Practice conditions 1. To nominate a supervisor prior to commencing employment, to be approved by the Medical Council of NSW, to monitor and review his clinical practice and compliance with Public Conditions in accordance with Level 2 Supervision as contained in the Council's protocol. The supervisor is to be provided with a copy of the practice and health related conditions. 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 review his work progress and address any relevant work-related or professional matters. 3. At each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council. 4. The supervisor forwards to the Council, initially on a 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 is any concern 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 that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship. 1. To work only in a position approved by the Medical Council of NSW. 2. To work only in a group practice (group may be defined as at least 3 practitioners) with one other practitioner always on site. 3. To work no more than 28 hours per week. 4. To authorise the medical Council of NSW to notify his employer/s of any issues arising in relation to compliance with any of his conditions. Private Health conditions 1. Not to prescribe for self-medication. 2. To attend for treatment by a general practitioner of choice, at a frequency to be determined by the practitioner and the treating practitioner. To authorise his treating practitioner to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 3. To attend for treating by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise his treating psychiatrist to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 4. To take any medication prescribed by his treating practitioners. 5. That the extent of his professional medical duties is to be guided by his health status and the advice of his treating & Council Appointed Practitioners. 6. To attend for thrice weekly Urine Drug Testing in strict accordance with the Medical Council of NSW protocol. Results of Urine Drug Testing to be forwarded to the Council Appointed and treating practitioners and to the Council. He understands that such Urine Drug Testing will be at his expense. 7. To have blood taken for measurement of Carbohydrate Deficient Transferrin levels monthly intervals in strict accordance with the Medical Council of NSW protocol. The results of all tests to be forwarded to the treating and Council Appointed Practitioners and to the Council. He understands that such testing will be at his expense. 8. To attend for review by the Council Appointed Psychiatrist on a three monthly basis or as otherwise directed by the Medical Council of NSW, at the Council's expense. 9. To attend a Review Interview at the Council in three months or as otherwise directed by the Medical Council of NSW. 10. 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. 11. To authorise a nominated senior medical practitioner at the principal location where he works to notify the Medical Council of NSW immediately if there are any concerns in relation to his health or clinical performance. The nominated senior medical practitioner is subject to approval by the Council. 1. The practitioner resumed working as a general practitioner in June 2014. 2. On 6 and 13 June 2014 and on 16 July 2014 the practitioner tested positive to traces of morphine in his UDTs. The practitioner attributed the first two results to consumption of poppy seed. Such consumption is a breach of clause 2.2 of the Medical Council DT Protocol. 3. He claimed the positive the UDT for 16 July 2014 had resulted from him taking Nurofen Plus, which contains codeine. He said he took it because he was "in a lot of pain". He conceded this was not prescribed by any of the treating practitioners and was taken in breach of his practice conditions. There was no corroboration of his alleged suffering of pain or of him taking Nurofen Plus. In the context of his extensive dishonesty in his dealings with the Council, the Tribunal is not satisfied on the balance of probabilities that he did take Nurofen Plus. 4. The practitioner saw his treating psychiatrist, Dr Lim, on 28 July 2014. He told Dr Lim that he had been abstinent from alcohol; "apart from an occasional drink with his family". 5. The respondent attended a Review Interview with members of the Medical Council on 15 August 2014. Dr Pethebridge did a review meeting with the practitioner on the same day. Dr Pethebridge reported that on that date the practitioner told him he had not used alcohol in the last "couple of months". 6. The practitioner told Dr Pethebridge he had attended one Doctors in Recovery meeting and he "felt uncomfortable at the meeting because of the extended duration of his sobriety". He told Dr Pethebridge that he did not think he would continue attending the meetings. He also said he had not attended any other 12 step meetings. 7. At the Review Interview on 15 August 2014 the practitioner said that he was continuing to see Dr Lim and his next appointment was on 15 September. 8. He told the review members that he had not had any alcohol since the Impaired Registrants Panel saw him on 28 May 2014, having told Dr Lim in July that he was occasionally having alcohol with his family. When asked about treatment for his addiction, he said he attended a rehabilitation admission at Sydney Clinic on two (2) occasions for 2.5 and 3 weeks. He had individual drug and alcohol counselling for six (6) months. He said he no longer was seeing that counsellor. He said he had attended Doctors in Recovery on the advice of Dr Pethebridge, but he had attended only one session because he felt very uncomfortable and thought he "didn't need to be there". He also said that while he initially engaged in a 12 steps rehabilitation program, he no longer felt the need to do that. 9. The review members recommended, on the request of the practitioner, his work hours be extended up to a maximum of 35 hours per week. 10. Dr Pethebridge reviewed the practitioner on 23 October 2014 over a period of one (1) hour. Dr Pethebridge was satisfied with the practitioner's progress and recommended the reviews be six monthly rather than quarterly. 11. At the review interview by members of the Medical Council on 7 November 2014 the practitioner said that Dr Lim might not continue having ongoing contact with him as Dr Lim did not currently consider this was needed. The reviewers recommended the reviews be changed to six monthly rather than quarterly and the other conditions of the practitioner's registration remain unchanged. 12. Although the practitioner assured Dr Pethebridge in his consultation on 25 March 2015 that he had provided samples on 13, 15 and 25 October to the laboratory, the laboratory informed Dr Pethebridge that they had not received any such samples. 13. The practitioner's UDT samples on 19 & 24 October 2014 tested positive for traces of morphine. 14. The practitioner's UDT of 14 November 2014 showed positive for traces of morphine. He informed the Medical Council on 13 November 2014 that he had eaten two (2) rolls containing poppy seeds. He also said that he had eaten some pastries containing poppy seeds that his mother had made and that he apologised for the "non -intentional mistake". There is no evidence in these proceedings to corroborate a poppy seed explanation. It was raised, though, in the context that between 8 December 2014 and 9 September 2015 the practitioner failed to attend for more than 40 UDT samples. In respect of those he explained, he produced retrospectively, documentary evidence that he was sick or away on those dates. But other evidence establishes that he worked in the medical practice on those days. The Tribunal therefore finds that he was available but failed to attend. 15. The practitioner's UDT results for 17 November 2014 and 2 December 2014 were positive for Cannabis. 16. He told Dr Pethebridge in relation to as "his initial explanation" regarding a sample in November proving positive for cannabis that he had been at a Fairfield coffee shop with friends who smoked "flavoured" tobacco using a water pipe and he may have passively inhaled some of the smoke. Dr Pethebridge spoke to a toxicologist who advised that the quantitative result was too high to be related to passive smoking, but it was difficult to explain why the result two (2) days later was negative. 17. The practitioner said he had only used cannabis "one or two times" when he was at university, but it had no effect on him. Dr Pethebridge also recorded that the practitioner could offer no explanation for the October results positive for a morphine trace. 18. On 20 January 2015 the Council's Health Committee notified the practitioner that he needed to provide at least 18 months of clear UDT results starting from 16 December 2014. 19. When Dr Pethebridge enquired of the practitioner on 25 March 2015 about his consumption of alcohol, the practitioner reported having "one or two beers a month and "during the holiday cruise - I had 6 – 8 drinks in total". . 20. At the consultation the practitioner also told Dr Pethebridge that he was still waiting "for the Medical Council to arrange the details of the audit" (of his patient records) that was required of him by the conditions imposed by the Professional Standards Committee in 2009. He apparently had made no steps to follow up the requirement by contacting the Council. 21. He told Dr Pethebridge that his general practitioner had referred him to a clinical psychologist, Chris Koletti and he had attended three or four sessions but the psychologist had apparently reminded him "of what I knew already". He did not rely on any written or other evidence of Mr Koletti. 22. Dr Pethebridge also recommended that if Dr Lim confirmed he was "happy to terminate ongoing therapy" with the practitioner, Dr Pethebridge would support the removal of the condition requiring the involvement of a treating psychiatrist. There is no evidence of any such confirmation by Dr Lim. 23. On 25 May there was an enquiry by the Impaired Registrants Panel reviewing the practitioner's position. Again he said that the practice condition for him to participate in an audit of patient records was still in place and he was "keen for this to take place". It seems that he had no enthusiasm at all to participate in the Audit as he had not since 2009 contacted the Medical Council to request the Audit proceed so the condition could be removed from his registration. 24. The Panel determined that the condition requiring supervision should be lifted and otherwise the conditions continued. 25. On 30 June 2015 the practitioner resigned from Fairfield District Medical Centre. He then was in Adelaide from 6 July to 16 July. It was not until 18 July that he notified the Medical Council of his resignation from Fairfield District Medical Centre, his absence in Adelaide from 6 July to 16 July and failure to attend for urinary drug test samples in that period. He also wrote the same date to the Medical Council seeking approval for him to commence practice at Revesby, which he did that month. 26. On 10 September 2015 the practitioner provided medical certificates in respect of his failure to attend UDT's on 17, 18, 26, 27 and 31 August, and 7 and 8 September. Those certificates were provided by Dr Kuroz from Greenacre: Dr Xu Xian Xu of Chatswood (2 certificates), Dr Leung of the same practice (1 certificate), Dr Ramanathan of the same practice (1 certificate). Each Certificate said he was unfit for work, but provided no detail of the unfitness. 27. The certificate from Dr Xu that the practitioner is unfit for work on 17 August 2015 and 18 August 2015 is dated 17 August 2015. It was not submitted until sent to the Medical Council with a letter on 10 September 2015. 28. The certificate of Dr Leung certifying the practitioner unfit for work on 26 August 2015 and 27 August 2015 is dated 26 August 2015 and was sent to the Medical Council with the letter of 10 September 2015. 29. The certificate of Dr Ramanathan of 31 August 2915 certifying the practitioner unfit for work Up to and including 31 September and 1 September apparently is intended to refer to 31 August and 1 September. It was sent to the Medical Council with the letter of 10 September 2015. 30. The certificate of Dr Xu certifying that the practitioner is unfit for work on 7 September 2015 and 8 September 2015 is dated 7 September 2015 was also sent to the Medical Council with the letter of 10 September 2015. 31. The conditions of the practitioner's registration imposed by the Impaired Registrants Panel on 28 May 2014 requiring him to attend for thrice weekly urine drug testing in strict accordance with the Medical Council of NSW Protocol, also required the practitioner to authorise his treating general practitioner to inform the Medical Council of New South Wales of any failure of the practitioner to attend for treatment, termination of treatment, or if there is a significant change in health status ( including a significant temporary change). No such notification was given to the council for any of those dates when he claimed to be unfit for work. 32. Medicare records show that the practitioner in fact attended work as a general practitioner on 17 August 2015, 26 August 2015 and 31 August 2015 and 7 September 2015. 33. There was a hearing of section 150 proceedings against the respondent on 16 October 2015. The issues in that hearing were:- 1. whether the practitioner breached his conditions by returning UDT results and by missed UDT tests; 2. did the practitioner deliberately deceive the Council by the explanations he provided for the positive results and/or missed test?; and 3. In light of this would the protection of the public be ensured by imposing additional conditions on the practitioner's registration or should his registration be suspended? 1. The findings of the section 150 enquiry are extensive and detailed. They found that he breached conditions by returning positive UDT results and by missing UDT tests. They found that the practitioner had deliberately deceived the Council by explanations he provided for positive results and/or missed tests. The members found that in light of those findings the protection of the public could not be ensured by imposing additional conditions on the practitioner's registration and his registration should therefore be suspended. 2. His registration was suspended on 16 October 2015. 3. The practitioner subsequently consulted another psychiatrist, Dr Michael Atherton, an addiction specialist. Dr Atherton was the 5th treating psychiatrist the practitioner had engaged since 2009. He provided a report to the Medical Council on behalf of the practitioner on 25 November 2015. The practitioner told Dr Atherton that he had not consumed alcohol until he was 35 and from then he began "drinking regularly". He said by 2010 he was consuming about a bottle of vodka a day and was experiencing a range of withdrawal and dependence related symptoms. He said his alcohol use continued on and off until early 2013 and since then he has been sober. He denied any cravings. His claim being abstinent from Alcohol since early2013 is inconsistent with his evidence of using alcohol since then. 4. He told Dr Atherton that he had first used cocaine in 2008. He used it intra-nasally, but found this quite difficult and therefore in 2009 he commenced using methamphetamine. He told the doctor that "this was easier because he could smoke it sporadically and was initially using it once every month". This increased over a relatively quick period to the point where he was using daily. He denied other drug use including nicotine. 5. The practitioner reported to Dr Atherton that he was currently "clean and sober". He was keen to return to work as a GP. 6. Dr Atherton made the following recommendations:- 1. I believe that Dr Kuroz has demonstrated sufficient compliance with his restrictions to be allowed to return to work and I am satisfied that he does not pose a risk either to himself or the general population at the moment. 2. I would not be recommending that his restrictions be reduced in any form at the current time, and they should continue at twice weekly UDTs, monthly CDTs. I also feel that he should be required to have some level of supervision and restrictions on his working hours as I believe that he has a tendency to overwork and his personality structure will then create significant issues for him in relation to choices between patients, remuneration and Council obligations. 3. He has agreed to see myself on a regular basis, at least monthly and I am happy to keep the Board informed of his progress. 4. I have also encouraged him to return to some form of peer support, the most appropriate of these would be the Doctors' AA Meeting at Northside Clinic. I believe that it is imperative that he engage in some kind of peer support as he is isolated and tends to shun sharing his problems. This may well be useful to be mandated by the Board. If not he could attend some form of generic AA or attend an outpatient program at a private hospital. Such a one is available at the Northside Clinic or The Sydney Clinic. 5. He should be encouraged to have ongoing psychological support from a psychologist. 1. It appears that despite the suspension, the practitioner continued attending for UDT and provided copies of the results to Dr Pethebridge. On 15 January 2016 he wrote to the Medical Council providing copies of UDT results for the period from 14 December 2015 to 4 January 2016. He said he had not been able to perform UDT on 18 December 2015 because he had been admitted to Hornsby Hospital urgently for chest pain. He enclosed a copy of the medical certificate from the hospital. 2. Dr Pethebridge conducted a review interview with the practitioner on 12 January 2016 on instructions from the Medical Council. He had been provided with a copy of the report of Dr Atherton. Dr Pethebridge said that all the results received by him recently had been negative except the following samples: 1. May 25 dilute; 2. June 29; 3. 15 June dilute; 4. August 17, 24, 26, 31 samples not provided; 5. September 2015 no samples for 2, 4 and 7; 6. Samples from 17 and 19 not assayed "DOB on jars and forms differed"; 7. 2 November sample dilute; 8. December 18 and 28 no sample; 9. January 2016 samples for 11, 15 and 18 dilute; 10. Sample on 22 not assayed as security seal numbers did not match. 1. Dr Pethebridge commented: "There has clearly been increased diligence by Irfan to provide samples from mid-September. It is disappointing that during this period there has continued to be the presentation of dilute samples. Of the samples missing in December, for one he has provided a medical certificate from Hornsby and Ku-ring-Gai Hospital and the other was a public holiday. NSW Health Pathology has also provided written explanation for the absent results from 19 and 21 October." 1. Again Dr Pethebridge advised the practitioner to return to the Doctors in Recovery group. He said that the practitioner had offered an explanation that it had been a difficult period for him and his health had become a secondary concern to the needs of his family. But Dr Pethebridge said that this explanation was "insufficient to explain why he notified the Council that he was unable to provide UDT samples on days when he had been in clinic for a significant period of time (given the numbers of patients billed to him)". 1. Dr Pethebridge said that although the provision of samples had improved since the suspension, "he just needs to be careful around the provision of dilute samples. If any further samples were dilute, I would support a further registration condition for hair testing be commenced". He said that because four months of UDS samples had been provided, and six consecutive CDT samples, he would support the practitioner's return to work with a review by the Medical Council in three (3) months. He recommended all other conditions should remain unchanged. And a final order should be completed within the present three (3) month period or the next. 2. Proceedings were conducted under section 150A of the National Law on 2 March 2016. The recommendation of the interviewers dated 2 March 2016 was that the Medical Council remove the suspension and impose conditions on the practitioner's registration. Those recommendations were adopted by the Medical Council on 11 March and the practitioner was notified of the decision on 11 March by letter. The letter set out the following practice conditions- Practice Conditions 1. To practise only in a positon approved by the Medical Council of NSW 2. To practise only in a group practice (group may be defined as at least 3 practitioners), with one other practitioner always on site. 3. To work no more than 35 hours per week. 1. to forward the Medical Council of NSW a record of his working hours for each month as recorded by the practice manager. A copy of the logbook is to be forwarded to the Medical Council of NSW within 7 days of the end of each month. 1. To authorise the Medical Council of NSW to notify current and future places in Australia where he works as a medical practitioner of any issues arising in relation to compliance with any of his conditions. Health Conditions 1. 1. Not to prescribe for self-medication. 2. 2. Not to self-administer any: 1. Schedule 4 Appendix D or "drug of addiction" (Schedule 8 drug); or 2. Narcotic derivative, non-prescription compound analgesic or cold medication. Unless such medications are prescribed by his treating practitioner and taken as directed by his treating practitioner. Within seven days of being prescribed such treatment from his treating practitioner, he must: 1. notify the Medical Council of NSW and Council appointed practitioners; and 2. provide written confirmation of the treatment from the treating practitioner 1. To attend for treatment by a general practitioner of his choice. 1. The frequency of treatment is to be determined by the treating practitioner. 2. To authorise his treating practitioner to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; 3. A significant change in health status (including a significant temporary change). 1. He must provide the Council with the professional details of the treating practitioner. 1. To attend for treatment by a psychiatrist (who specialises in addiction medicine) of his choice. 1. The frequency of treatment is to be determined by the treating practitioner. 2. To authorise his treating practitioner to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; 3. A significant change in health status (including a significant temporary change). 1. He must provide the Council with the professional details of the treating practitioner. 1. To attend for treatment by a psychologist of his choice. 1. The frequency of treatment is to be determined by the treating practitioner. 2. To authorise his treating practitioner to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; 3. A significant change in health status (including a significant temporary change). 1. He must provide the Council with the professional details of the treating practitioner. 1. To attend the Doctors in Recovery group at least every fortnight 2. To comply with any treatment and take any medication as prescribed by his treating practitioners. 3. That the extent of his professional medical duties is to be guided by his health status and the advice of his treating and Council appointed practitioners. 4. To comply with the Medical Council of NSW's Urine Drug Testing Protocol (as varied from time to time) and attend for thrice weekly Urine Drug Testing at his own expense. To authorise the testing facility to forward all the results of the Urine Drug Testing to: 1. The Council appointed practitioners 2. Treating practitioners; and 3. The Council. 1. To comply with the Medical Council of NSW's Carbohydrate Deficient Transferrin testing protocol (as varied from time to time) and attend for testing on the first Friday of every month at his own expense. To authorise the testing facility to forward all the Carbohydrate Deficient Transferrin testing to: 1. The Council appointed practitioners 2. Treating practitioners; and 3. The Council. 1. To attend for review by the Council Appointed Psychiatrist on a three monthly basis or as otherwise directed by the Medical Council of NSW, at the Council's expense. 2. To attend a Review Interview at the Council on a three monthly basis or as otherwise directed by the Medical Council of NSW. 3. To authorise the Medical Council of NSW to forward copies of this decision and any subsequent Council Review Interview reports and other information relevant to his health and treatment to the Council appointed practitioners and his treating practitioners. 4. To authorise a nominated senior medical practitioner at the principal location where he practises to notify the Medical Council of NSW immediately if there are any concerns in relation to his health or clinical performance. The nominated senior medical practitioner is subject to approval by Council. 1. The UDT result for the practitioner's sample provided on 29 April 2016 returned a positive result for Methyl amphetamine. The Medical Council wrote to the practitioner on 20 May 2016 requesting an urgent explanation by 2 June. 2. The same day the Health Care Complaints Commission wrote a lengthy letter to the practitioner requesting explanation in relation to UDT results of 6 and 13 June, 17 and 24 October and 17 November 2014 and also in relation to failure to attend UDT on 17 December 2014, 16 February 2015, 9 March 2015, 13 March 2015, 16 March 2015, May 11, and 18 2015, 29 June 2015, and 1 July 2015, failure to attend for UDT and false explanations in respect of failure for UDT dates 17 December 2014, 16 February 2015, 9, 13 and 16 March 2015, May 11 and 18 2015, 29 June 2015, July 1, 6, 8, 10, 13, 15, 24, 27, 29, 2015, August 17, 24, 26, 31 2015, September 2, 4, 7 2015. 3. The UDT for 30 May 2016 returned a positive result for Cannabis Metabolite. The Medical Council wrote to the practitioner on 21 June 2016 requesting a written explanation for the result by 28 June 2016. 4. On 21 June 2016 the practitioner responded to the Medical Council letter of 20 May regarding the positive finding to the correspondence concerning the UDT sample of 30 May 2016. He said: "In honesty I can't believe it." 5. The practitioner responded to the Health Care Complaints Commission questions in its letter of 20 May 2016 by letter to the HCCC by a letter of 7 June 2016. 6. On 19 June 2016 Dr Pethebridge sent a written review report to the Medical Council. He had interviewed the practitioner again on 15 June for 50 minutes. He noted the inconsistency in the CDT test results being sent to him. He noted in January 11 UDT samples were received and samples for 11, 15 and 18 January were dilute. The sample for 22 January was not assayed "as security seal numbers did not match". In February there were 13 samples and one was dilute. In March 11 samples were received, one of which was dilute. The sample for 16 March was not assayed because "dates differed". There was no result for the 2 public holidays. .He noted that he received 11 samples for April. The sample for 29 April was positive for methamphetamine. There was no sample for Anzac day. In May seven (7) results had been received already. 7. Dr Pethebridge noted in his report that: "It is disappointing that Dr Kuroz continues to have provided dilute specimens. That a majority of these samples were provided on a Monday does raise a potentially long period (Friday after his sample provision until Wednesday the next week) during which there is no confirmatory evidence of abstinence from substances. In other circumstances I would be suggesting hair testing as a way to confirm Dr Kuroz's assurance that he has not been using substances but this is not possible as he is bald headed. At our interview Dr Kuroz explained the dilute samples as being consequences of mornings when he has had two rather than his usual one morning cup of coffee or of having to provide samples at lunch time rather than early in the morning". 1. He said in his report that the practitioner was unable to offer an explanation for the positive sample on 29 April for methyl amphetamine (Ice) except that he said he had been to a live band one evening and he may have been close to people smoking Ice. He told the doctor that he had spoken to the laboratory and that the positive sample was in the low positive range. Dr Pethebridge spoke to the NSW Health Pathologist about the result and he was told that the result and repeat testing both showed that the sample had methyl amphetamine levels twice that of the test cut-off level. He said: "No way could this be considered a low or borderline result and I would imagine that a result of this level would not be possible through some process of passive smoking". 1. The practitioner told Dr Pethebridge at that interview that he had moved in the last six (6) weeks from Chatswood to Cronulla "close to the beach". 2. Dr Pethebridge stated: "He has also asked that the condition to attend Doctors in Recovery group fortnightly be removed as attendance results in long working days. I would support that his condition be altered to include attendance at a weekly AA meeting or the DiR fortnightly. Personally I would still encourage him to persist with DiR." 1. He also reported:- "As to the urine positive for methyl amphetamine, I find his explanation for this result as unlikely and I would presume that he has on at least one (1) occasion returned to smoking this substance. This compounded by the number of dilute urines and the inability to confirm abstinence with hair testing places Dr Kuroz in a difficult situation. Beyond the consequences of this urine test I look forward to reviewing Dr Kuroz in three (3) months". 1. There was a Review Interview under the National Law on 20 June 2016. 2. The reviewers determined that they considered the practitioner was in breach of private health conditions 10 and 13. They recommended no change to his current conditions. They advised the practitioner to provide Council with his outstanding explanation to requests by the Council and cautioned him that the Council may decide he should attend section 150 proceedings to address the concerns raised by his positive UDT result. 3. The section 150 proceedings were conducted by the Medical Council on 12 July 2016 and the outcome was that the practitioner's registration was suspended. He was notified by the Medical Council by letter dated 15 July 2016. 4. On 3 August 2016 the practitioner's solicitors wrote to the Health Care Complaints Commission requesting that the practitioner move to the Medical Council's Health Program. 5. In late 2016 the practitioner changed his surname from Kuroz to Cakan. One reason he did this was that people searching "Kuroz" on the internet would find the record of the disciplinary proceedings against him in 2008. 6. On 7 February 2017 there was a further section 150 proceeding. The suspension decision was reaffirmed. 7. The Health Care Complaints Commission filed its application commencing these proceedings in the Tribunal on 23 March 2017. 8. When the practitioner saw Dr Pethebridge for review on 15 August 2017 the practitioner disclosed that he had changed his treating psychiatrist to Dr Emma Fewings and had changed his General Practitioner to Dr Sarika Tiwari. Unsatisfactory Professional Conduct 1. Para 139B (1) of the National Law defines "unsatisfactory professional conduct" of a registered health practitioner as including relevantly:- (c) "A contravention by the practitioner (whether by act or omission) of: 1. a condition to which the practitioner's registration is subject"; (l) "Improper or unethical conduct relating to the practice or purported practice of the practitioner's profession." Professional Misconduct 1. Section 139 E of the National Law provides that the practitioner is guilty of professional misconduct if he has: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. Engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. Improper or Unethical Conduct 1. In R v Byrne (1995) 193 CLR 501 the High Court held "improper" meant not in conformity with standards of professional conduct and practice. 2. In Health Care Complaints Commission v MacGregor [2016] NSWCATOD 85 at [41] the Tribunal referred to dictionary definitions of "unethical" as "contrary to moral precept; immoral; in contravention of some code of professional conduct" and held that that definition should be applied in disciplinary proceedings under the National Law. Complaint 1 1. The background and particulars of complaint 1 have been proved. They establish 48 separate instances that the practitioner has contravened a condition of his registration and each of those instances is by virtue of section 139B(1)(c) of the National Law an instance of unsatisfactory professional conduct. 2. Together these matters demonstrate that the practitioner did not take the conditions of his registration seriously and did not recognise the seriousness of contravening the conditions. He repeatedly did so. He did not make reasonable efforts to comply with the conditions. Complaint 2 1. Each of the particulars for this complaint have been established. They constitute the following matters:- 1. Particular 1 - Nine instances of providing untruthful information to the Medical Council purporting that he had been prevented from attending UDT in accordance with his registration conditions, when he had not. 2. Particular 2 - One instance of falsely reporting to the Medical Council that he had been on holidays from 29 June 2015 to 3 July 2015, and relying upon an invoice for the holiday when he knew at the time that he did not attend a holiday and instead consulted with patients on those days. 3. Particular 3 - Falsely purporting to the Council on 10 September 2015 that he had been in Adelaide from 24 July 2015 to 30 July 2015 and therefore was unable to attend UDT on 27 July and 29 July in accordance with his registration conditions. He relied upon documents for travel to Adelaide when he knew he had not travelled to Adelaide. He knew that he had cancelled the flight tickets and he had consulted patients on those days and was not prevented from attending for the UDT on those dates. 4. Particular 4 - The practitioner failed to attend for UDT on 6, 8, 10, 13 and 15 July 2015 as required by health conditions 6 and 7 of the health conditions on his registration and the Council's CDT testing protocol. On 18 July 2015 he informed the Council he could not attend on those dates because he was in Adelaide from 6 July to 16 July 2015. That representation was false and he knew it was false when he made it. 5. Particular 5 - The practitioner falsely purported to the Council on 21 May 2016 and again on 12 July 2016 that, in relation to a UDT result of 29 April 2016 positive for methyl amphetamine, the result was from passive smoking, when he knew that was not true. 6. Particular 6 - The practitioner on 12 July 2016 knowingly falsely purported to the delegates of the Medical Council at the section 150 hearing that the UDT result of 29 April 2016 positive for methyl amphetamine he highly suspected someone had put something in his beverage at a social event as the explanation for the UDT result, when the practitioner knew that this was not true. 7. Particular 7 - The Tribunal finds that the practitioner falsely and knowingly told the delegates at the section 150 hearing on 12 July 2016 in relation to the positive UDT result on 30 May 2016 for cannabis metabolite that the positive result was attributable to passive smoking of cannabis smoke from the previous day. 8. Particular 8 - All of the particulars of the grounds of complaint 2 have been proved. Together they constitute 21 instances of him engaging in improper and unethical conduct relating to the practice of medicine and thereby each in such instance constitutes an instance of unsatisfactory professional conduct by virtue of the definition in section 139B(1)(l) of the National Law. Complaint 3 1. This complaint relies upon all 69 of the instances proved under complaints 1 and 2. The Tribunal finds that the 69 instances of unsatisfactory professional conduct when considered together are extremely serious. They involve numerous instances of dishonesty and contempt for the Medical Council and the conditions of the practitioner's registration. 2. Taken together the instances of unsatisfactory professional conduct under Complaints 1 & 2 amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. They therefore constitute professional misconduct. Impairment 1. In section 5 of the National Law "impairment" is defined for relevant purposes as:- "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) Or a registered health practitioner or an applicant for a registration in a health profession, the person's capacity to practice the profession." 1. A ground for a complaint to the Tribunal is that a person has an impairment (section 144 of the National Law). Section 149 of the Act provides that where a complaint is proved before a Tribunal, a Tribunal can exercise any of the powers as set out in subdivision 6 of division 1 of part 8 of the National Law 2. Dr Pethebridge, the Council appointed psychiatric expert, has been assessing and reviewing the practitioner since he first saw him in 27 March 2014. The practitioner's current treating psychiatrist is Dr Michael J Atherton, a psychiatrist and specialist in addiction. 3. Dr Atherton first met the practitioner on 30 October 2015 after the practitioner's registration had already been suspended. It appears that Dr Atherton did not have available to him the records of the treating psychiatrists who had previously been consulted by the practitioner. 4. Dr Atherton reported that the practitioner told him he had been wrongly and unjustly dealt with by the Health Care Complaints Commission in the previous proceedings against him in respect of the death of the female patient. Dr Atherton said he had first met the practitioner on 30 October 2015 when he sought "support around his testing with UTD's as he has been unable to secure a loan. These have all been negative". 5. As at the consultation in October 2017 (the report is dated 25 October), Dr Atherton reported that the practitioner told him that in the past he had engaged with both Narcotics Anonymous ("NA") and Alcoholics Anonymous ("AA") as well as Doctors in Recovery at Northside Clinic but "unfortunately severe financial stress meant his ability to travel or live close enough to access NA, AA, or Doctors in Recovery", was impossible. But in fact he had attended only one session of Doctors in Recovery and he then decided not to attend further sessions. He had not attended AA or NA or any "12 Step" program at all.) 6. At Dr Atherton's suggestion in March 2017, he attended SMART Recovery, the Odyssey House program, from May 2017. He engaged in Doctors AA from May 2017 and commenced a program of voluntary work helping out at his local community soccer club. This combination of recovery activities continued through 2017. 7. The practitioner told Dr Atherton that because of financial stress he had been unable to continue with the thrice weekly UDT's, as they required about four (4) hours of public transport travel each day plus the fees for the UDT. Dr Atherton said that he had suggested hair testing in lieu of UDT's, with hair samples being taken from the practitioner's body because he was bald. The practitioner then ceased the UDT's required by his registration conditions, but he had already been suspended. 8. Dr Atherton listed the practitioner's mental health diagnosis as:- 1. Major depressive disorder – in remission; 2. Methamphetamine use disorder of severe type – in remission; 3. Alcohol abuse disorder of severe type – in long term remission; and 4. Cocaine use disorder of moderate type – long term remission. 1. He arrived at the opinion that the practitioner had "in the past four (4) years he has been on the whole abstinent from substances and has been attempting to repair his life and return to work as a GP ….". 2. The evidence in these proceedings fell far short of establishing that the practitioner been abstinent for the previous 4 years. 3. Dr Atherton further reported:- "Unfortunately, throughout late 2016/early 2017 he was faced with considerable stressors again including illness in his family, financial issues relating to his long-term investments, the arrest and subsequent charges and potential gaol term of his son with whom he was living at the time, and his own suspension from practice again in the light of non-compliance with his registration requirements and the potential of further HCCC charges. These factors combined to cause a relapse of Mr Cakan's major depression in October 2016 but this has now resolved and he is in full remission. This illness played a pivotal part in his failure to comply with his regular urine tests as he was hopeless about his future and ever being able to return to practice." 1. On the issue raised by Dr Pethebridge as to whether the practitioner had neuro-cognitive decline, he said it was "fair to consider this in light of Dr Petherbridge's concerns". He said that he had arranged to have formal testing by a clinical psychologist and the practitioner was happy to comply but Dr Atherton expressed his opinion that "I believe that his lapses in memory are an understandable outcome of this prolonged process and without his paperwork he was unable to verify information". 1. Dr Atherton also stated: "His failure to comply with the requirements of his registration (testing) are multi-factorial and include a failure to maintain self-awareness in relation to his recovery, occasional relapse, mental illness including major depression and acute stress reactions and the direction of myself, as his Addiction specialist, that alternatives are available which allow him to demonstrate sobriety given his acute financial situation. He has taken my advice and now demonstrates an absolute understanding for accountability and testing and his willing to surrender to all requirements of the Medical Council including providing other options for any eventuality. This includes further hair testing or arrangements with his local GP and supervising GP to provide supervision of a UDT's in extreme circumstances and only if the Council agrees." 1. It was only after the practitioner's registration was suspended, that he commenced attendances at Odyssey House. He was referred to Odyssey House by Dr Atherton in March. He first attended on 4 May 2017 and by 30 June 2017 had attended six (6) group sessions of the recovery group. The course is a nine (9) week course. 2. The practitioner also attended "multiple" drug and alcohol counselling and according to the Acting Co-Ordinator of Odyssey House, as at 30 June 2017 in drug and alcohol counselling "multiple relapse strategies to implement in the future" were developed. 3. The practitioner informed Dr Atherton that he had in the past engaged with both NA and AA as well as the Doctors' Program at Northside Clinic. However, the direct evidence is that the practitioner, despite repeated recommendations from Dr Petherbridge did not engage in the Doctors in Recovery Program at Northside. He rejected it after attending only one (1) meeting. In addition, he did not respond to the recommendations for him to attend NA or AA or a Twelve Step program. Furthermore, his treatment history has involved him having multiple changes of treating psychiatrist and also changes in treating psychologist. 4. In his report of 25 October 2017 Dr Atherton concluded that his diagnosis was : 1. Major depressive disorder – in remission 2. Methamphetamine use disorder of severe type – in remission 3. Alcohol abuse disorder of severe order – in long term remission 4. Cocaine use disorder of moderate type – long term remission. 1. The practitioner attended on Dr Petherbridge for an hour on 15 August 2017 for a review. In his report Dr Pethebridge acknowledged the stress factors that the practitioner has experienced since his registration was suspended. In that report, Dr Pethebridge stated that he identified a concern as to the:- Cognitive confusion that Dr Cakan has with dates of events. This has not previously been evident. It may be related to the significant stress that he has been under for a number of months or it could be evidence of an early cognitive decline. I would suggest that Dr Cakan be required to complete a full neuropsychological assessment to identify and specify cognitive deficits that may impair his ability to return to clinical work. 1. Dr Pethebridge also reported that the practitioner had described a, "relapse of his depressive illness, this largely in the context of significant social stressors. He has also had surgery for a benign neuroma of his leg, which pre-operatively was associated with significant pain, unresponsive to a number of medications. At the time of my assessment both of these conditions were resolved". 1. In evidence is a report Mr Richard McBride, a clinical psychologist. Mr McBride undertook a neuropsychological assessment of the practitioner on 24 October 2017 and 26 October 2017. 2. The history that the practitioner provided to Mr McBride involved some clear minimisation of his history of drug abuse as regards the frequency and diversity of drugs involved. 3. Mr McBride's conclusions of the assessment is as follows:- Conclusions 1. Irfan Cakan is a 52 year old man with a neuropsychological profile characterised by:- * Estimated above average pre-morbid ability; * Subtle attention reductions on tasks with greater demands on executive functioning; * Intact speed of information processing; * Intact immediate attentional span and working memory mechanisms; * Impaired learning and recall of new verbal information that is unstructured; * Low average non-verbal memory; and * Variable performance on measures of executive functioning (frontal systems functioning) with predominantly intact mental flexibility, but difficulty with planning. 1. Mr Cakan presents with mild deficits in terms of tension, verbal memory and frontal systems functioning on neuropsychological assessment. Mr Cakan's neuropsychological performance is worse than his pre-morbid ability would predict. The cognitive problems detected on the current assessment are consistent with reported complaints of mood disorder and inter-current life stressors. His cognitive status is likely to improve after his mood improves and he has other life stressors and lifestyle issues well-managed. Neuropsychological review is recommended in 12 months to review his cognitive functioning and response to treatment". 2. In his oral evidence, Dr Petherbridge confirmed that the practitioner continues to be impaired by instances of depression and also his drug use continuing in 2017. His opinion was that Dr Atherton's report was optimistic in relation to the cognitive issue and expressed the opinion that the problem could be early onset dementia. He said that also when referring to the opinions of Mr McBride that the practitioner's "cognitive status" is likely to improve after his mood improves and he has "other life stressors and lifestyle issues well-managed". He said that he did not agree with that opinion because he was not aware of any literature attributing cognitive dysfunction to life stressors. 3. Dr Pethebridge noted that since the previous review the practitioner had improved his relationship with his son and also with his ex-wife to "very good" and he was optimistic about his daughter's relationship with her partner and he expected they would become engaged. The practitioner, since his suspension, has been unemployed and in receipt of an unemployment benefit. He was forced to vacate the accommodation he was renting in Cronulla because he could no longer afford it and had moved to live with his parents. In addition to the positive UDT for methamphetamine in April, the practitioner had suffered a relapse of his depression. 4. The practitioner told Dr Pethebridge that he was enjoying the Odyssey House programs and some of the one-to-one sessions had assisted him to understand his use of substances and also taught him that "self-care is needed". 5. Although he had not been in paid work, he had completed some continuing medical education courses. He had not sought other employment because his leg surgery had occurred only about 2 or 3 weeks prior and he was not yet able to walk properly. 6. Dr Pethebridge said that the practitioner had experienced recent relapses of his depressive illness and his use of methamphetamine. He said "both of these conditions are in early remission". He also raised the further issue of possible cognitive decline and said that he "would like to exclude any illness resulting in a deterioration in his cognitive abilities". 7. He said that "clearly Dr Cakan has experienced a recent relapse of both of his depressive illness and his use of illicit stimulant substances. Given this he continues to be an impaired practitioner". 8. Dr Pethebridge recommended that he see a negative neuropsychological report before the practitioner was allowed to return to a clinical role. He said "beyond that he appears to be well supported by his treating practitioners and he was able to obtain support for the emergence of his depressive symptoms quickly in December 2016 and the early months of 2017. Given this he should be able to return to work (at reduced hours initially) while continuing to participate in the Medical Council's Health Program". 1. Dr Pethebridge said that there was no need for ongoing CDT testing because alcohol did not appear to be a problem that impacts on the practitioner's clinical abilities. 2. Dr Pethebridge also noted that the practitioner was enthusiastic about hair testing for illicit substances as an alternative to UDT. He said "Given that Dr Cakan keeps his hair cut short, such testing is of limited value and I can't support it as an alternative to UDT". 3. It is only eight (8) months since a negative UDT result for methamphetamine. The Tribunal members are concerned about the practitioner's relatively recent relapses and also what appears to be a lack of enthusiasm or of commitment to becoming/staying clean of illicit drugs. That has been demonstrated particularly in relation to the multiple changes of treating psychiatrist the practitioner has had. It is also a concern to the Tribunal that the practitioner repeatedly rejected the advice of Dr Petherbridge regarding attendance at Doctors in Recovery and AA or NA. 4. In his submission of 2 November 2017 the practitioner proposed that the Tribunal might impose a critical compliance condition in relation to UDT's so that "any contravention of the order will lead to automatic three year deregistration". 5. He also proposed working 28 hours per week under direct supervision with fortnightly meetings and monthly reporting to the Medical Council. He proposed that instead of him having to attend a collection centre for the UDT samples, Council approve of the samples being taken in the presence of his general practitioner. He proposed that there be a condition of his registration that he attend Doctors in Recovery meetings or similar on a weekly basis and supply confirmation of attendance to the Medical Council monthly. He proposed further that he be required to attend a medical ethics course within 3 – 6 months and attend an impaired resident's panel on a three monthly basis. 6. In all the circumstances, the Tribunal considers that his conduct in breach of the conditions of his registration, his dishonesty in dealings with the medical council, his minimisations and lack of frankness about the extent of his drug and alcohol use to his treating psychiatrist, his repeated changes of treating psychiatrist, and his repeated rejection of therapeutic recommendations by Dr Pethebridge, indicate a lack of insight into the seriousness of his drug problems, his practice conditions, his breaches of those and his conduct and statements misleading the Council and others about his drug use and a lack of commitment to staying clean before his latest suspension, and probably continuing. 7. His statement filed on 2 November 2017 that the practitioner reinforces that conclusion. He did not appear to understand that his professional indemnity insurer would not cover him in a situation where he had breached the conditions of his registration. He said in his statement "I am very disappointed with my medical indemnity insurer (Avant) who (sic) has refused to offer any legal representation". 8. He said in that statement that he is "deeply embarrassed and extremely regretful for all the particulars of all the complaints and accept that my conduct was unacceptable and it is not consistent (sic) with the document: 'Good Medical Practice: A Code of Conduct for Doctors in Australia' ". 9. He submitted that he did not compromise patient care and treatment and there were no complaints made by any patient, staff members or colleagues. He submitted that he attended late for some of the CDT tests and says that sometimes he forgot and on other occasions "I incorrectly thought that if I was late a few days it would not devalue the monthly result. I accept in hindsight, I should have strictly kept to the date required for providing the CDT. I note that three (3) years of CDT results have been in the normal range". 10. Notwithstanding that the conditions on his registration prohibited him using illicit drugs, he argued in his statement "I have not abused any illicit drugs, prescription medications including codeine, morphine or alcohol since returning to work in June 2014". He still purported to have had negative UDT results from eating poppy seeds, from eating a pastry, from using Nurofen Plus and from inhaling smoke from smokers. 11. He also demonstrated a lack of insight when he said: 1. "On numerous occasions I provided medical certificates for days upon which services have been rendered to Medicare. I accept that it was not the best way to deal with the situation. 2. I also accept that on some days due to workload, I lost the sense of time and was unable to attend UDT's. I again obtained medical certificates to cover these days. I accept that this was inappropriate and I should have been upfront with the Medical Council. 3. I accept that in the past I failed to advise the Medical Council of the circumstances that caused the positive UDT result for methamphetamine on 26 April 2016. At the time I failed to disclose to the Medical Council the issues I was facing with my brother. I discussed this with my treating specialist Dr Atherton and confirmed ownership of the result as well as on 18 April 2017. I accept that it was not the appropriate way to deal with the situation. 4. I accept that in retrospect I have been disorganised and careless with my compliance with UDT's and CDT requirements and it is not acceptable. I made misleading, inconsistent and untruthful information to the Medical Council as a result of being stressed/panicked and being lost. I accept that it was inappropriate and unacceptable." 1. He conceded that since February 2017 he has continued to on occasions been unable to comply with the UDT requirement. He admitted that he had stopped regular UDT after 30 June 2017. He said he was unable to explain the positive result for the drug hair testing on 25 September 2017. 2. He also stated "I accept that I need to provide fully compliant UDT results for a period of time to convince the Tribunal (to) change in my circumstances and any other recommendations made by the Tribunal". 3. Taking into account the relapses that have occurred this year, the Tribunal finds that the practitioner's impairments are likely to detrimentally affect his capacity to practice as a medical practitioner. Conclusion 1. The practitioner's conduct the subject of complaints 1, 2 and 3 is extremely serious. He repeatedly breached conditions designed to protect the public from serious adverse consequences that might flow or relapse from his impairments. He then also gave false or misleading information to the Medical Council and gave dilute samples for UDT and misled the Medical Council with documents. These are all serious matters. The decision of the Tribunal in relation to those matters must not only protect the public in terms of deterring the practitioner and other practitioners from misconduct and protecting the reputation of the profession and the confidence that patients can have of their medical practitioners. 2. The Tribunal has concluded the practitioner's registration should be cancelled and he should be not be able to apply for re-registration until after 11 July 2019. That would be (3) years after the date of his most recent suspension. 3. A cancellation of his registration is more appropriate than a further suspension because it places the onus on the practitioner to prove that he is fit to be registered. 4. The Tribunal recommends to the practitioner that during the period of his cancellation if he intends to re-apply for registration he should:- 1. Undergo an MRI on referral by Dr Atherton; 2. Undertake thrice weekly UDT; 3. Continue consulting the same general practitioner and Dr Atherton as his consultant addiction specialist and his treating psychiatrist; 4. Continue attending Narcotics Anonymous or Doctors in Recovery on a regular basis; 5. Regularly attend continuing medical education events; and 6. Obtain advice from his medical defence organisation as to what other preparations he should make for applying for re-registration. Costs 1. The applicant seeks an order for the respondent to pay the applicant's costs. The applicant has been successful in its application. The practitioner has been found guilty of professional misconduct and was found to be suffering from an impairment. 2. The applicant sought an order for disqualification for a "significant period". The applicant has succeeded in obtaining that. 3. The respondent did not establish any factor that would seriously weigh against or mitigate a costs order to the successful applicant and therefore there should be a costs order as sought by the applicant (HCCC v Philipiah [2013] NSWCA 342). Orders 1. Accordingly the orders of the Tribunal are:- 1. The respondent's registration as a medical practitioner is cancelled. 2. The respondent may not apply for re-registration until after 11 July 2019. 3. The respondent must pay the applicant's costs of or incidental to the proceedings as agreed or as assessed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** 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 15 January 2018 - Under 'Slip Rule' s 63 CAT Act Para [186] amend (2) years to (3) years 04 June 2019 - coversheet representation 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: 04 June 2019