Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Robinson (No 2) [2018] NSWCATOD 24 Hearing dates: 7 and 8 February, 2018 Date of orders: 26 February 2018 Decision date: 26 February 2018 Jurisdiction: Occupational Division Before: F Marks ADCJ, Principal Member Dr D Storey, Senior Member Dr F Sardelic, Senior Member J Houen, General Member Decision: 1. If the respondent were still registered as a health practitioner we would have cancelled his registration effective this day. 2. The respondent is disqualified from being registered as a medical practitioner for a period of two years from this date. 3. The respondent is to pay the costs of the complainant in an amount assessed in default of agreement. Catchwords: Medical practitioner guilty of professional misconduct-found suffers from impairment-doubt concerning causal connection between misconduct and condition causing impairment-registration lapsed-order that would have cancelled registration-disqualification period fixed. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Robinson [2017] NSWCATOD 147 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Gregory Leonard Robinson (Respondent) Representation: Counsel: S Maybury (Complainant) P Griffin SC (Respondent) Solicitors: Health Care Complaints Commission (Complainant) Meridian lawyers (Respondent) File Number(s): 2017/00009849 Publication restriction: Non-publication order directed to the name of any patient or former patient of the respondent or any material which might tend to identify such patient. 1. Reasons for Decision Introduction and background 1. In Health Care Complaints Commission v Robinson [2017] NSWCATOD 147 (19 October 2017) we found the respondent, Dr Gregory Leonard Robinson guilty of unsatisfactory professional conduct and professional misconduct within the provisions of the Health Practitioner Regulation National Law ("the National Law"). The proceedings were stood over for further hearing to enable the parties to adduce any additional evidence concerning a discrete matter about which we had made no determination, namely whether the respondent had an impairment for the purpose of the National Law and to conduct a stage 2 hearing to determine whether and what protective orders should appropriately be made. 2. These reasons for decision are published consequent upon a further hearing conducted on 7 and 8 February, 2018 in the course of which expert evidence was taken concerning the question of impairment, the respondent gave oral evidence and we received submissions from the parties. Impairment 1. In our earlier decision we set out the details of Complaint Six brought by the complainant Health Care Complaints Commission (HCCC) which was in the following form: COMPLAINT SIX 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 FOR COMPLAINT SIX 1. The practitioner suffers from an impairment in that: (a) he has required and requires treatment for Major Depressive Disorder including medication, and carries a risk of relapse into a depressed and anxious state including from environmental, professional and personal stressors; (b) he has a history of opioid self-administration and/or dependence from 2000 leading to the practitioner being on the New South Wales Medical Council and Board's impairment program from 2002, and has a risk of relapse including from environmental, professional and personal stressors. 1. Before considering this matter, and for completeness we set out an extract from paragraphs [65] and following of our earlier decision: In asserting that the respondent was impaired as alleged both parties appear to have relied principally on a recent report of a psychiatrist Dr Robert Fisher who had examined him on several occasions on behalf of the Medical Council of NSW. Before considering this report and other documentation it is necessary that we make brief reference to some relevant history as it concerns the respondent which we have extracted from a report of an Impaired Registrants Panel dated 16 June 2014 pursuant to an enquiry held under section 173 of the National Law. The respondent had voluntarily surrendered his Schedule 8 prescribing rights in 2002 following a two year history of depression and narcotic abuse. His registration was subsequently suspended, but lifted shortly thereafter with practice conditions placed on his registration. The respondent's condition and compliance with practice conditions were monitored from time to time and no significant issues were raised concerning his ability to practise medicine. In 2010 the respondent came to the attention of the then Medical Board because of concerns at a regional hospital that he might be suffering from a respiratory infection or other condition which precluded him from working as effectively as possible. Notwithstanding this difficulty, the respondent appears to have progressed to a stage where he was able to exit the Health Program on which he had been placed in April 2011 and his prescribing rights were restored in November 2011. In September 2013 a notification was made to the Council concerning the respondent's health which had persisted for over a year. The Council referred the respondent to Dr Robert Fisher for assessment. In a report of 15 January 2014 Dr Fisher explained the respondent's symptoms of fatigue, depression and general unwellness as being related to an underlying physical condition and certain stressors. He did not believe that there were any grounds for the respondent re-entering the Impaired Registrant's Program. In their report, the members of the Panel noted that the respondent had said that he was working very hard at the hospital, then being the hospital where the incidents which have given rise to these proceedings occurred. He described himself as suffering from fatigue and felt physically stressed. However, following a recent injection of testosterone he felt much better and that his low mood had improved. The members of the Panel concluded that the respondent did not require ongoing monitoring within the Health Program. The respondent was next reviewed by Dr Fisher on behalf of the Council on 23 May 2016 and he provided a report dated the same day. Dr Fisher noted that the respondent had ceased practising on 24 April 2015 because "he was struggling to cope with multiple stressors which were both work-related and personal." In particular, the respondent had referred to a conflict between himself and a senior anaesthetist at the hospital, which we assume must relate to the circumstances surrounding patient A. He also expressed concern about complaints arising from his treatment of patient C. The respondent also described personal circumstances which created a stressful situation for him. Dr Fisher diagnosed the respondent as suffering from an impairment "in that he has required treatment for recurrent major depressive disorder albeit that he reports currently to be free of depressive symptomatology or indeed any other major psychiatric symptoms." He thought that there was a risk that the respondent might lapse back into a depressed and anxious state, although he was taking medication. Even though there was no evidence that the respondent had engaged in drug or alcohol abuse or was dependent on these substances, Dr Fisher thought that there was always a long-term risk of lapse. Furthermore, the existence of a number of stressors in the respondent's workplace at the hospital and some financial strain put the respondent "at risk of lapsing into a depressed state and potentially to a lapse of his opioid self administration." He thought that the respondent's self-confidence may have suffered as a result of the incidents at the hospital. Dr Fisher concluded that the respondent should undertake psychotherapy and that he should re-enter the Impaired Registrants Program "and to be monitored for stability of mood as well as being monitored for acceptable standards of clinical practice." The latest report available from Dr Fisher is dated 23 August 2017 following a consultation on 16 August 2017. Dr Fisher noted that the respondent had surrendered his registration in September 2016. After taking a history concerning the respondent's current activities and noting that the respondent said he had not self-administered opioids since 2002 and abstains from alcohol Dr Fisher concluded that the respondent suffers from an impairment because of the risk that he might relapse in the manner as described in his report of 23 May 2016 which we have summarised above. Significantly, Dr Fisher said that if the respondent was fully compliant with conditions of registration requiring regular drug and urine testing, continued attendance on treating drug and alcohol specialists, maintenance of antidepressant treatment and access to a support psychologist or psychiatrist then he would be "at much less risk of lapsing into either opioid self administration or severe anxiety and depression." Dr Fisher also said "I am also of the view that he may have a very valuable contribution to make to the country community in his role as a general surgeon." Finally, he noted that if the respondent were to return to work it should be on a graduated, part-time basis with access to a clinical supervisor to counter his loss of self-confidence. For completeness, we note an opinion expressed by Dr Glenys Dore, a Senior Staff Specialist Psychiatrist by report dated 4 November 2015 who appears to have treated the respondent for opioid dependence to the effect that; (1) the respondent had suffered from an impairment which has been well controlled for over 10 years with no evidence of a relapse and that he is stable on a maintenance program (2) whilst the respondent has "underlying personality vulnerabilities and he experiences episodic depressive and anxiety symptoms (largely due to situational stressors) these are more likely to have a negative effect on his own well-being, rather than detrimentally affecting his capacity to practice medicine" However, it seems that Dr Dore had not treated the respondent since February 2015. The respondent's treatment was taken over as locum for Dr Dore by Dr Mark Hardy, a drug and alcohol practitioner who furnished a report dated 12 January 2016. He expressed the opinion that the respondent "suffers from an impairment" which he described as being opioid dependence but noting that there was no evidence of relapse. He thought that any anxiety or depression and personality traits would not have a significant impact on the respondent's ability to practice medicine but might affect him personally and impact on his interpersonal relationships with management in a Local Health District where he worked. Although the respondent has conceded that he is impaired for the purpose of the National Law provisions, it is still necessary for us to be satisfied to the requisite standard that he is indeed impaired. For reasons which we now discuss, we are not so satisfied. It seems to us from our review of the medical evidence upon which both parties have relied in asserting and accepting that the respondent suffers from an impairment that the basis is a risk of lapsing into drug dependency. However, the evidence is to the effect that that risk is capable of being managed. Furthermore, no assessment is made concerning the nature and extent of that risk; for example whether it might be assessed as fanciful or remote or more likely to occur. Any evidence concerning any underlying anxiety and depression is to the same effect. In these circumstances, we have considerable doubt about whether the respondent is indeed impaired and whether we should accept the concession made by the respondent. To some extent there is no compelling need for us to come to any concluded view of this matter at this stage of these proceedings because firstly, the respondent has voluntarily surrendered his registration and is no longer registered, and secondly the proceedings are stood over for a stage 2 hearing on 7 and 8 February 2018 on which occasion this matter can be the subject of further consideration by the parties, and the adducing of any additional evidentiary material. Furthermore, our findings concerning the misconduct of the respondent may to some extent involve a consideration of whether he is impaired for the purpose of determining what protective orders might be appropriate consequent upon the findings that we shall make in these proceedings. Accordingly, we propose to defer consideration of whether or not the respondent is impaired to the stage 2 proceedings. The additional evidence concerning impairment 1. We had summarised the medical reports from Dr Mark Hardy during the course of the stage 1 hearing in the extract from our decision set out above. For the purpose of the stage 2 hearing we were provided with up-to-date records from Dr Hardy, who has continued to treat the respondent, and Dr Hardy gave oral evidence. We should add that Dr Hardy has dual registration as an addiction medicine specialist and as a general practitioner. His clinical notes record that he has been treating the respondent for opiate dependence since 14 January, 2016 and has continued to prescribe Suboxone to manage his dependency. The respondent described periods of stress primarily related to his former wife from whom he is now divorced, and that this caused him to increase his medication beyond the prescribed dosage. He also encountered stress in connection with his preparation for and anticipation of these proceedings. His clinical notes record a diagnosis of depression in addition to opiate dependence. Significantly, Dr Hardy had referred the respondent to Dr Dore who is now practising independently as a consulting psychiatrist in October 2016, but there is no evidence that the respondent attended upon her. 2. In oral evidence Dr Hardy was asked to comment concerning the proclivity of the respondent to alter his dose of Suboxone without reference to him. Dr Hardy said that he disapproved of this behaviour, and had endeavoured to negotiate with the respondent to cease altering his dose without first consulting him. Dr Hardy explained that the respondent engaged in this behaviour when he was under stress, and was less likely to do so when the stressors were not present. Whilst that behaviour was of concern to Dr Hardy he commented that it is common behaviour for patients on similar programs. 3. There was evidence that the respondent was endeavouring to wean himself off Suboxone. Dr Hardy was of the strong opinion that the respondent should not do so. He said that 96% of patients who do cease using this substance relapse within six months. He thought that the respondent should continue to maintain this medication indefinitely and if necessary increase his dose. 4. Dr Hardy said that he engaged in cognitive behaviour therapy with the respondent wherever possible. He thought that the respondent was gaining some insight into his problems and was slowly improving in his understanding of his interpersonal difficulties and the fact of his misconduct. He thought that if the respondent could maintain this progress he would be able to practice medicine again but would need regular treatment by a psychiatrist in order to be able to achieve this. He had again referred the respondent to Dr Dore on 1 February, 2018. 5. It was the opinion of Dr Hardy that the respondent was currently impaired and was unable to practice as a consulting surgeon. In order to do so he would need to undertake further psychiatric treatment over a period of at least 12 months. Even then, the respondent would need to return to work under close supervision, with his performance being monitored and with limited stressors. 6. Following the completion of the earlier proceedings the respondent through his solicitor was examined by Dr Angelo Virgona, a consultant psychiatrist, for the purpose of providing expert opinion to the Tribunal. We had available to us the report of Dr Virgona dated 25 January, 2018, and he also gave oral evidence. 7. Dr Virgona conducted a 110 minute interview with the respondent, and within that period was able to record in his report detailed information concerning the respondent's medical history, and family and work background. He also discussed with the respondent the circumstances pertaining to the several Complaints which are the subject of these proceedings. It is not necessary for the purpose of these reasons for decision that we discuss these matters in any particular detail. In summary, Dr Virgona noted that the respondent had been addicted to narcotic analgesics for about two years, but that addiction had been well controlled since 2002 without relapse. The respondent was taking a number of medications to assist him, principally Suboxone to control his addiction and Zoloft and other medication to help him deal with a history of depression and anxiety, and minimise the effect of any stresses in his life (which the respondent said were currently minimal). 8. Dr Virgona then described a number of significant aspects of the respondent's personality including aspects of obsession and fixation in connection with described circumstances. Significantly, he said that the respondent: "appears to have had an unbalanced view of himself as a practitioner. He has a very positive view of his skills as a surgeon, and an almost messianic vision of himself as a protector of the welfare of the less fortunate, and those more hopeless or impossible surgical cases. He appears to see himself as a bulwark against the tide of pragmatic resource allocation in medicine. He does not concede errors in judgement on his part, other than reflecting that he should have involved hospital administration to arbitrate when there were disagreements about patient care." He thought that these characteristics were "probably more likely related to a somewhat rigid and inflexible approach to his practice of medicine and not being able to incorporate the opinion of others." In describing the respondent's personality characteristics Dr Virgona said that the most likely diagnosis would be Obsessive Compulsive Personality Disorder. He inclined to the opinion that "these features had enduring negative impacts on his functioning, but more so when under stress, independent of whether he was having a depressive/anxiety episode…..it is likely that the personality features, particularly in the presence of stress, have had ongoing negative impacts on his functioning, particularly in the work and social realms, in the absence of significant depressive/anxiety exacerbations." He thought that this Disorder "has not always had particularly deleterious impacts on his functioning as a surgeon, but, when stressed, the personality features have become more exaggerated and their impacts significant. He has also had episodic depressive/anxiety symptoms, reaching threshold for Major Depressive Disorder episodes, in the wake of life stressors that have caused a further increase in impairment at those times, which one would expect. His narcotic use disorder has been in remission for 15 years and does not lead to a significant impairment." 9. Dr Virgona was of the opinion that the respondent was impaired and that his personality disorder detrimentally affected his capacity to practise medicine safely. He thought that the appropriate treatment would consist of psychotherapy; either psychodynamic psychotherapy or cognitive behaviour therapy, more likely the latter. He thought that following appropriate treatment and the employment of practice restrictions and conditions, involving supervision, the respondent might in time return to practice. 10. The complainant adduced oral evidence from Dr Robert Fisher, a consultant psychiatrist whose earlier reports are summarised above in the extract from our earlier decision. Dr Fisher had available to him the report of Dr Virgona. He thought that the diagnosis made by Dr Virgona of obsessive compulsive personality disorder was not an unreasonable diagnosis. He also thought that the treatment regime proposed by Dr Virgona was "a very reasonable proposition." 11. Dr Fisher was highly critical of the respondent in changing his dosage of Suboxone without reference to Dr Hardy. He said that this impacted adversely on the respondent's character and his ability to make judgements, the latter being important for a consultant surgeon. Furthermore, Dr Fisher noted that the respondent consistently had difficulty getting on with his colleagues, and he thought that he should be considering whether he himself had made any mistakes and that he should try learning from this exercise. His inability to do so could impact on his decision making capacity, which was also important for a consultant surgeon. 12. It was the opinion of Dr Fisher that the respondent carries a vulnerability to opioid addiction and that it was essential that this be effectively managed. At the present time it was clear that the respondent was impaired and would remain so for the foreseeable future. He thought that before resuming practice the respondent should undertake cognitive behavioural therapy and that he should continue with this treatment weekly for a minimum period of three years after recommencing practice. Furthermore any return to practice would need to be staged, involving close supervision. Conclusion on impairment 1. All of the medical evidence is to the effect that the respondent is impaired. Furthermore, the respondent conceded that he was impaired and maintained this concession throughout the hearing. However, on the evidence, the impairment consists of an obsessive compulsive personality disorder, whereas the Particulars of Complaint Six specify that the impairment is firstly a Major Depressive Disorder, and secondly opioid dependence with a risk of relapse from "environmental, professional and personal stressors." Both of these conditions as particularised have existed for some considerable time, and there is evidence that the respondent has been able to function as a consulting surgeon because they have been controlled by medication. Of course, on the evidence, these control measures may have been effective, or more effective, because both the major stressors in the respondent's life have been removed; namely his acrimonious divorce and stress caused by interacting with others in the workplace. 2. We raised with counsel during the course of submissions our concern that the finding of impairment based on obsessive compulsive personality disorder which we are comfortably satisfied we are able to make on the evidence is not that which is particularised. Mr Griffin, senior counsel for the respondent submitted that firstly the respondent concedes that he is impaired for the purpose of the National Law and secondly that in the circumstances there can be no objection to the impairment being characterised in terms of the contemporary expert medical evidence available to the Tribunal. Counsel for the HCCC agreed with this submission. 3. We formally find that Complaint Six has been established. The impairment is constituted by an obsessive compulsive personality disorder that detrimentally affects and is likely in the future to detrimentally affect the respondent's capacity to practise the profession of medicine. The evidence of the respondent 1. The respondent gave oral evidence. He said that he wanted to return to practice and that it would take him 10 to 12 months before being ready to return to work. The respondent told us that he had undertaken many surgical procedures, including difficult cases. He had performed about 15,000 operations since he had commenced Suboxone medication. The respondent was anxious to inform us that he had an interest in trauma surgery, including liver trauma and that if circumstances had changed he would have become a liver transplant surgeon. 2. The respondent said that he had read the earlier Tribunal decision, and accepted the findings made against him. He also accepted the opinions expressed by Doctors Fisher, Virgona and Hardy, and he had made an appointment to see Dr Dore the following week. He explained that he had not consulted her when originally referred to her by Dr Hardy because she had scheduling problems. 3. The respondent was present in the hearing room when Dr Hardy gave evidence that he should not give up the Suboxone program. Nevertheless, he gave evidence that he wanted to discuss weaning off that program over the next 12 months. He said that the program affects his home and relaxation time because he has to time the doses. When asked about his proclivity to alter his Suboxone dosage without reference to his treating doctors, he said that he accepted that he should have told the doctor beforehand and to have failed to have done so was "bad thinking". He said he did not want to disturb Dr Hardy by talking about it. The respondent also said that when altering the dosage of medication other than Suboxone on his own volition he had always kept within the prescribing range, especially when he had increased his dosage of Zoloft. 4. The respondent explained that he had ceased practising in 2015 because he felt that he needed time to heal after the incidents which gave rise to these proceedings. During the last 12 months he had undertaken reading, meditation, engaged in Buddhism and developed strategies for dealing with stress. He had also given up practice so that he could no longer write scripts. 5. When asked in cross-examination whether he did accept the conclusions set out in the earlier Tribunal decision, he said that he did so but that some of the facts as found by the Tribunal were wrong. He further said that he did not have the skill set to deal with the several matters correctly; he accepted that his conduct was inappropriate, and he declined to put forward any opinion about the conduct of other clinicians involved in the several incidents. 6. The respondent was taken to the following extract from the report of Dr Virgona; When asked if he thought he could still work, he stated, "I think so." When asked if he thought he would work in (a specified regional area), he stated, "Having learnt what I've learnt, I feel a lot stronger. I know how the game is played. I feel a bit naïve. I have to write more complaints than they write about you. I'd bring in administration. I've got to stop and bring others into adjudicate." The respondent agreed that he had said words to that effect to Dr Virgona. He then said that this was "a silly comment" and did not reflect his belief. 1. In considering the respondent's evidence we take into account that he would have been subject to some anxiety and stress associated with giving evidence before the Tribunal. However, even making this allowance we observe that in the course of his evidence he had difficulty in responding directly to answers asked of him, those answers were in some cases not considered or relevant, and he engaged in rambling, tangential asides. He appeared distracted and his evidence tended to emphasise his surgical skills, even though his technical surgical skills were not the subject of any concern in the proceedings. Our observations are corroborated by the information given by the respondent to Dr Virgona as elaborated in his report. That report sets out the information provided by the respondent in a manner which to us appears to constitute a "stream of consciousness". 2. Overall, the respondent did not present in the course of giving evidence as one would expect of a very experienced long-standing consultant surgeon, able to think quickly and clearly for the purpose of dealing with urgent or difficult situations as they emerge. Furthermore, he did not present as a person who would be able to deal with and negotiate with others in resolving any issues which arose in the course of carrying out surgical procedures. We must emphasise, as was accepted by the parties that it is an essential part of the practice of a consultant surgeon that he or she be able to interact with the other members of the team, including anaesthetists, internists, nursing staff and administration. A consultant surgeon must be able to perform appropriately with the necessary degree of collegiality as part of the surgical team. It is clear that at the present time, and when the incidents arose which gave rise to these proceedings, that these essential and integral features were not possessed by, and were not practised by, the respondent. Appropriate protective orders 1. It is well established that the jurisdiction of this Tribunal in dealing with complaints of this kind is essentially protective in nature. In our earlier decision we found the respondent guilty of professional misconduct within the meaning of section 139 E of the National Law which is in the following terms; 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. It follows that by reason of this finding the conduct of the respondent was sufficiently serious in nature to justify suspension or cancellation of his registration. Consistent with the professed intention of the respondent not to continue in practice, the respondent allowed his registration as a Medical Practitioner – General and Specialist (Surgery – General Surgery) to lapse when due for renewal on 2 March, 2017. It follows that not being currently registered, the respondent must re-apply for registration if he wishes to resume practice. As is clear from the definition of professional misconduct the appropriate protective orders may include, but not necessarily so, cancellation or suspension of registration. The parties were agreed in the circumstances that the misconduct of the respondent when coupled with his impairment would justify cancellation of registration and that in the circumstances of his unregistered status suspension would not be practical. 2. In our earlier decision we discussed the nature of, and rationale pertaining to the making of protective orders. At [62] and following we said; Although, by definition, a finding of professional misconduct would justify an order for suspension or cancellation of registration it does not necessarily follow that the Tribunal is bound to make such an order, and the consideration of the nature and extent of any consequential orders must be determined by reference to well-established principles. In exercising this jurisdiction, there are a number of matters to which we must have regard. They have been most recently, succinctly, referred to in the judgment of Meagher JA in the New South Wales Court of Appeal in HCCC v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour said: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." In exercising the value judgement necessary to a determination of whether the unsatisfactory professional conduct which we have found is sufficient to constitute professional misconduct because it would justify cancellation or registration of the respondent's registration we shall have regard to the established principles referred to above as extracted from Do. We also have regard to the nature and extent of the misconduct as found by us. We are particularly concerned, based on the evidence given in the proceedings and our appreciation of that evidence that the misconduct of the respondent as we have found concerning patients A, C and D is of a most serious kind. When aggregated with the other misconduct which we have found we are of the opinion that it would justify cancellation or suspension of registration. Of course, in so concluding we should not be taken to have determined whether cancellation or suspension of registration is an appropriate protective order. Any final determination of this kind will need to await the conclusion of the stage two proceedings. 1. In our earlier decision we canvassed the nature and extent of the professional misconduct found by us pertaining to each of the circumstances of each of the patients. It is not necessary that we review in any detail the findings which we made. It is sufficient to say that the circumstances surrounding patient A indicated misconduct of a serious kind in his failure to interrelate with and negotiate with other members of the surgical team. The circumstances of patient C demonstrate an inability to prioritise and deal with an urgent matter which became progressively worse. The circumstances of patient D demonstrated an abysmal lack of care for the patient and an inappropriate method of trying to deal with the hospital bureaucracy. The circumstances of Complaint Three are indicative of a failure to keep appropriate records, arguably of a serious nature in connection with patients A and E. In the same way, the circumstances of Complaint Four are also very serious matters, in particular having regard to the self-prescribing of drugs of addiction for himself and for his partner. 2. During the course of the stage 2 hearing, we canvassed with counsel whether some of the misconduct relating especially to the respondent's behaviour in his interaction with others might have some causal nexus with his underlying impairment of obsessive compulsive personality disorder. There is a suggestion in the report of Dr Virgona that "it is likely that the personality features, particularly in the presence of stress, have had ongoing negative impacts on his functioning, particularly in the work and social realms, in the absence of significant depressive/anxiety exacerbations." It is possible, therefore, that were the respondent to be "cured" of his obsessive compulsive personality disorder, that his proclivity to inappropriate interpersonal behaviour might be wholly or partially mitigated. However, in referring to this matter we are conscious that it can be put no higher than a possibility, and that postulating it in this manner presupposes the fulfilment of a number of conditions including whether the respondent will actually undertake and persist with the recommended therapy, whether and to what extent his underlying personality and behaviour may be modified, and whether there may be any residual behavioural characteristics that would affect his ability to practise medicine, especially as a consultant surgeon working in a collegiate manner with a surgical team. All of these unknowns when considered together render it inappropriate and dangerous to speculate about the respondent's future. Such a conclusion must impact upon the nature of the appropriate protective orders which should be made in the circumstances of these proceedings. 3. Our consideration of the appropriate protective orders must also have regard to any professed insight by the respondent concerning his misconduct. Whilst during the course of his evidence the respondent professed to now have such insight, it must be of recent origin because there is no hint of insight or contrition in the extensive narration which he gave to Dr Virgona as contained in his report. It is true that Dr Hardy stated that the respondent has progressively shown some manifestation of insight into his misconduct, but we understand that Dr Hardy would describe this as a "work in progress." Having regard to the respondent's evidence before us and his demeanour whilst giving that evidence, we have reservations that the respondent fully appreciates the nature and extent of his misconduct as found by us. 4. The complainant submitted that an appropriate protective order was cancellation of registration and that we should fix a period somewhere between 18 months and 30 months during which the respondent should not be permitted to apply for registration. 5. The respondent submitted that an appropriate protective order was cancellation of registration, but that the relevant period should be 12 months. In so submitting Mr Griffin said that this was a realistic period which equated with the possibility of the completion of successful treatment in accordance with the evidence, bearing in mind that it would be necessary for the respondent to demonstrate fitness to practice when he applied for reregistration. He said that such a period would also allow us to take into account the fact that the respondent had voluntarily agreed not to practice since April 2015, and that this was a period which could be counted in considering the deterrent effect of any order which we made. 6. If this were a case where we could be satisfied that there was a causal correlation between the respondent's behaviour which constituted his misconduct and his underlying obsessive compulsive personality disorder, it might be feasible to fix any period precluding an application for reregistration by reference to a considered minimum period during which the condition might be "cured." However, conditions of this kind are notoriously more difficult to treat than, for example, distinct physical injuries to a limb. On the other hand, as Mr Griffin pointed out, the respondent would still need to overcome the hurdle of demonstrating fitness to practice and if he were not "cured" at the end of the set period, he would be wasting his time in making the application. Again, if the correlation existed, this would mitigate the need to consider any deterrent effect, because only those practitioners suffering from a condition in the nature of a psychiatric condition might not be inappropriately deterred if a shortened period was set. 7. The fixing of an appropriate period involves the exercise of a value judgement. Having regard to the serious nature of the misconduct which we have briefly summarised, the uncertainty about whether the respondent does possess meaningful insight into his misconduct, the fact that he has not yet commenced undertaking therapy and until very recently has resisted formal therapy with a psychiatrist, that there is no certainty that the therapy will succeed even if the respondent does persist over a period of at least 12 months that an appropriate period during which the respondent should be precluded from applying for reregistration is two years from the date of this decision. We so find in conjunction with finding that the registration of the respondent should appropriately have been cancelled if he were still registered, by reference to the provisions of section 149 C (4)(a) and (b) of the National Law. We shall reflect these matters in the formal orders which we intend making. Costs 1. The complainant sought an order for costs which was not opposed. This is a costs jurisdiction and it is appropriate in all the circumstances that a costs order be made. Orders 1. We make the following orders; 1. If the respondent were still registered as a health practitioner we would have cancelled his registration effective this day. 2. The respondent is disqualified from being registered as a medical practitioner for a period of two years from this date. 3. The respondent is to pay the costs of the complainant in an amount assessed in default of agreement. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2018