Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DYB v Medical Board of Australia [2019] NSWCATOD 162 Hearing dates: 15 – 18 April, 18 and 26 July 2019 Date of orders: 18 October 2019 Decision date: 18 October 2019 Jurisdiction: Occupational Division Before: Boland ADCJ, Deputy President Professor P Procopis, Senior Member Dr M Diamond, Senior Member J Houen, General Member Decision: (1) The decision of the Medical Board of Australia (the Board) dated 30 October 2018 is set aside and the following decision is substituted in lieu: Dr DYB (the practitioner) is granted general registration as a medical practitioner, subject to the following conditions: (a) If she is engaged in direct or indirect clinical patient contact: (i) the practitioner is to work in a hospital approved by the Board; (ii) the practitioner is to work as a Year 2 post graduate medical officer; (iii) the practitioner's practice is, at all times, to be supervised at Level 1 supervision in accordance with the Australian Health Practitioner Regulation Agency policy; (iv) for the purposes of Order 1(a)(i), the practitioner must obtain the prior approval of the Board to her employment in a hospital nominated by her; (v) the practitioner must obtain the prior approval of the Board of any proposed supervisor/s and shall not practise until the supervisor/s has been approved; (vi) in the event the practitioner's proposed supervisor/s is/are unable to continue supervision for any reason, then the practitioner must nominate a substitute supervisor or supervisors to the Board and must not engage in direct or indirect clinical care until a substitute supervisor/s is/are approved by the Board; (vii) the practitioner shall authorise the Board to provide a copy of the reasons for decision dated 18 October 2019 to any supervisor/s or substitute supervisor/s of the practitioner; and (viii) the practitioner must authorise any supervisor/s appointed under these orders to notify the Board immediately if there are any concerns in relation to the practitioner's compliance with these conditions or if her health or clinical performance may endanger the safety of the public. (b) If she is not engaged in direct or indirect clinical care as provided in Order 1(a)(i)-(viii) of these Orders, she must only use her professional knowledge to practise in any role which does not require direct or indirect clinical patient contact (including the prescribing or supply of any substance falling in the Standard for the Uniform Scheduling of Medicines and Poisons and including supervision of other practitioners engaged in direct or indirect clinical contact), in management, administration, non-clinical education, non-clinical research, advisory, regulatory or policy development roles; (c) Prior to engaging in any position as provided in Order 1(b), the practitioner must first obtain approval from the Board. (2) The practitioner must undertake treatment with a general practitioner and a psychiatrist (the treating practitioners) and attend at a frequency determined by the treating practitioners. (3) Within one month of the date of these Orders, the practitioner must provide the Board with the name and contact details of the treating practitioners. The treating practitioners must not be a relative, friend, or professional colleague of the practitioner or in a contractual or financial relationship with the practitioner. (4) Within one month of the date of these Orders, the practitioner must provide evidence to the Board of written confirmation from the treating practitioners that they have: (a) sighted a copy of these orders; (b) agreed to notify the Board of any material change in health status which may affect the practitioner's fitness to practise; and (c) agreed to provide the Board a report prior to the review date as set out in Order 6 of these orders. (5) In the event the practitioner changes her treating general practitioner and/or psychiatrist, she must, within three days of her first consultation with her new treating practitioner, provide the Board with the name and contact details of any new treating practitioner(s) together with written confirmation from the new practitioner(s) in the same terms as set out in Order 4 of these orders. "Treating practitioners" does not include any other health professionals (including that the practitioner attends for emergency and after hours treatment). (6) The conditions imposed on the practitioner's registration shall be reviewed by the Board eighteen (18) months from the date of these Orders, or on the completion of the practitioner's Year 2 post graduate employment, whichever event first occurs. (7) Pursuant to s 64(1)(a) and (4) of the Civil and Administrative Tribunal Act 2013 (NSW) that the applicant be referred to by the pseudonym Dr DYB. (8) That no citation or hyperlink to the decision and reasons of this Tribunal be included in the entry for the practitioner in the National Register, the Medical Board of Australia's webpage, the webpage of the Australian Health Practitioner Regulation Agency or elsewhere. (9) Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) and until further order, there shall be no publication or broadcast of any reports of these proceedings in the Tribunal unless the practitioner is de-identified in accordance with Order 7. (10) Pursuant to r 42(5)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) and until further order, there shall be no third-party access to any documents held by the Registry in relation to these proceedings, including but not limited to, evidence, transcripts of proceedings, applications and written submissions that refer to the practitioner. (11) Notwithstanding Orders 7-10, there may be disclosure or publication of any of the matters referred to in those orders as follows: (a) where required or permitted by a condition imposed or order made by the Tribunal; (b) in the circumstances set out in s 216(2) of the Health Practitioner Regulation National Law (as enacted in each State and/or Territory); (c) in the circumstances set out in ss 219-221 of the Health Practitioner Regulation National Law (as enacted in each State and Territory); and/or (d) where required to be published pursuant to s 225(f) or (k) (as enacted in each State and/or Territory) (subject to the operation of s 226). (12) The practitioner is to file and serve written submissions in respect of the costs of the appeals on or before 15 November 2019. (13) The Board is to file and serve written submissions in respect of costs on or before 6 December 2019. (14) The practitioner is to file and serve written submissions in reply, if any, on or before 20 December 2019. Catchwords: PROFESSIONS AND TRADES – health practitioner – registered medical practitioner – whether practitioner should be granted unconditional registration Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Disability Discrimination Act 1992 (Cth) Fair Work Act 2009 (Cth) Health Practitioner Regulation National Law (NSW) Mental Health Act 2007 (NSW) Cases Cited: Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15 Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaints Commission v CSM [2018] NSWSC 902 Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 McMahon v Nursing and Midwifery Board of Australia [2013] NSWNMT 4 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 Qantas Airways Ltd v Lustig [2015] FCA 253 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Category: Principal judgment Parties: Dr DYB (Applicant) Medical Board of Australia (Respondent) Representation: Counsel: K Richardson SC (Respondent) Solicitors: Applicant (Self Represented) Landers & Rogers (Respondent) File Number(s): 2018/00035995, 2018/00044125, 2018/00192718 Publication restriction: An order pending further order restricting publication of the practitioner's name was made on 15 April 2019. On 18 October 2019 a final non-publication order was made as set out above. REASONS FOR DECISION Introduction 1. Dr DYB is a registered medical practitioner. In 2015, at a time when she was unwell, Dr DYB surrendered her registration. When she re-applied for registration in 2017, the Medical Board of Australia (the Board) granted her general registration but imposed conditions on her registration. The conditions included a condition that Dr DYB could not practise in any role requiring direct or indirect clinical patient contact. 2. Following representations made by Dr DYB to the Board, minor amendments were made to the conditions on her registration on 17 January 2018 and again on 1 February 2018. Further amendments to the conditions were made on 28 March 2018. On 21 August 2018, and again on 30 October 2018, still further amendments were made to the conditions. However, the condition precluding Dr DYB from practising in any role requiring direct or indirect clinical patient contact was retained. Although a condition precluding the practitioner from prescribing any Schedule 8 or Schedule 4 drug was removed, an amended condition precludes her from "the prescribing or supply of any substance falling in the Standard for the Uniform Scheduling of Medicines and Poisons". 3. Dr DYB has lodged, as provided in the governing legislation, the Health Practitioner Regulation National Law (NSW) (the National Law), three appeals against the Board's decisions of 17 January 2018 and 1 February 2018 (proceedings 2018/00044125 and 2018/00035995), and against the conditions imposed on 28 March 2018 (proceedings 2018/00192718). 4. At a directions hearing on 7 December 2018, Dr DYB was excused from filing further external appeal applications in respect of the conditions imposed on her registration on 21 August 2018 and 30 October 2018. It was noted at this hearing that the Tribunal would consider Dr DYB's appeals in respect of each set of conditions imposed on her registration. 5. At the commencement of the hearing, we sought the parties' consent to deal only with the present conditions on Dr DYB's registration, on the basis that earlier conditions have been superseded by the present conditions. Dr DYB did not agree with this proposal but sought we deal with each appeal. The Board supported our proposal as one in line with the objects of the Civil and Administrative Tribunal Act 2013 (NSW) (s 3), namely to solve the real issues in dispute between the parties justly, quickly and cheaply and with as little formality as possible. 6. In essence, Dr DYB says she should be granted general registration without conditions because she has never caused harm to a patient, and she also asserts she does not present a risk to any potential patients. She submits, although she has diagnoses of autism and a major depressive disorder with atypical features, that she is able to practise medicine safety. This, she says, is because she has not, and would not, practise if unwell. She disputes that she is "impaired" having regard to the definition of impairment and the use of that word in the National Law. 7. Dr DYB does not dispute that she has suffered periods of major depressive illness and made multiple attempts to take her own life. She attributes a number of her self-harm episodes to adverse reactions to prescribed medications, including times when her illnesses were misdiagnosed or she was subject to involuntary psychiatric admissions. 8. Dr DYB also initially opposed any order being made which would prevent publication of these reasons, or the material in evidence before us. Dr DYB believes her proceedings are a "test case" for practitioners who suffer from and report a mental illness. However, in her final submissions she sought de-identification of some persons and evidence in the proceedings. Dr DYB's position is not one adopted or embraced by the Australian Health Practitioner Regulation Agency (AHPRA), who represent the Board in this matter. 9. In these proceedings Dr DYB is self-represented. Ms K Richardson SC appears for AHPRA who represents the Board. 10. At the commencement of the hearing the Board neither consented to, nor opposed, Dr DYB's application. Rather, it was submitted that we could either confirm the Board's decisions, grant Dr DYB unrestricted registration, grant registration but subject to different conditions, or refuse registration. At the conclusion of the hearing, it was submitted on behalf of the Board that we should find Dr DYB does have an impairment as defined in the National Law. Thus, it is submitted, either Dr DYB should be refused registration, or otherwise her registration must be subject to conditions, but she should not be granted unconditional registration. 11. As we will now explain, we have found that Dr DYB does have an impairment as defined in the National Law. However, we are satisfied on the evidence before us that she should be granted general registration subject to conditions which will require her, if she wishes to engage in direct or indirect clinical care, to be employed in a hospital setting to complete a post graduate Year 2 rotation (PGY 2) under direct supervision. We have also found it appropriate to make the non-publication orders proposed by the Board. The current conditions on Dr DYB's registration 1. Dr DYB currently has general registration subject to conditions. The current conditions are set out below. Previous conditions are set out in Appendix A to these reasons. Limitations on Conditions (1) The Practitioner must not practise as a medical practitioner in any role requiring direct or indirect clinical patient contact (including the prescribing or supply of any substance falling in the Standard for the Uniform Scheduling of Medicines and Poisons and including supervision of other practitioners engaged in direct or indirect clinical contact). The Practitioner may only use her professional knowledge to practice as a medical practitioner in management, administration, non-clinical education, non-clinical research, advisory, regulatory or policy development roles. (2) Prior to commencing practice, the Practitioner must provide to AHPRA for approval by the Board, the name and contact details of the proposed employer, a job offer and position description, that includes the Practitioner's direct reports, from the proposed employer. (3) Within 14 days of Board approval of employment arrangement(s), the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that: (a) AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration, or confirm that the senior person has received a copy of the conditions from the Practitioner, and (b) The Practitioner will be required to provide the same form: (i) within seven days of the commencement of practice at each and every subsequent place of practice, and (ii) within seven days of each and every notice of any subsequent alteration of these conditions. (4) Prior to commencing practice, the Practitioner must provide to AHPRA, on the approved form (HPS7), acknowledgment from the senior person at each place of practice that they have seen a copy of the conditions on the Practitioner's registration and are aware of the monitoring and reporting requirements outlined on that form. (5) Within 28 days of the notice of imposition of these conditions, the Practitioner must provide to AHPRA: (a) Acknowledgement, on the approved form (HP1), that for the purposes of monitoring compliance with the conditions on their registration restricting access to medications, AHPRA may contact Medicare and/or drugs and poisons regulatory authorities in relevant states or territories. Background 1. We were provided with very extensive material concerning Dr DYB's medical history dating back to her days as a medical student. We have had careful regard to all the material provided. However, we are satisfied, for the purposes of understanding these reasons, it is only necessary that we highlight some aspects of that material. The material relied on by Dr DYB includes numerous reports relating to both her physical health and her psychiatric history, together with a number of peer reviewed articles relevant to adverse reactions to various drugs. 2. We commence by noting that Dr DYB is a relatively young woman, whose academic records show her to be a high achieving student of superior intelligence. 3. Dr DYB was engaged in studies as a medical student between 2003 and 2008. She graduated with the degrees of MB.BS in 2008. 4. In 2003, her first year as a medical student, Dr DYB says she was taking medication (promethazine) for hay fever and whilst on this medication, she was extremely agitated and had suicidal thoughts. 5. In 2004, at age 20, while still taking promethazine to relieve asthma symptoms, Dr DYB contacted the mental health crisis team, and a psychiatrist to whom she was referred prescribed citalopram. She reports she became suicidal and anxious and was hospitalised after she attempted to stab herself. She was admitted to a psychiatric ward. Dr DYB asserts at this time she lost the support of her family. In 2004, Dr DYB had 10 admissions to a hospital in respect of her mental health. 6. In mid-2005, Dr DYB was prescribed and commenced taking lamotrigine. That year, she attended hospital on 17 occasions, including an admission for poisoning by drugs, threatening to jump off a bridge, a polypharmacy overdose, a lithium overdose, antihistamine poisoning and benzodiazepine poisoning. Dr DYB later developed a severe immunodeficiency attributed to the use of lamotrigine. 7. Dr DYB asserts that, in 2006, as a medical student she was required to be registered with the then relevant State board. She disclosed her then diagnosis of bipolar disorder and was required to give undertakings to the board. Later that year, she was required to attend a Professional Behaviour Panel hearing. The panel concluded no action should be taken. 8. In October 2006, Dr DYB threatened to kill herself with a knife. Police conveyed her to a public hospital. 9. In January 2007, Dr DYB disclosed to a police officer she had taken an intentional overdose. She attended the Intensive Care Unit at a public hospital and was subsequently treated on a psychiatric ward. Dr DYB had four other admissions to the hospital in 2007 for psychiatric issues. 10. The Board submit that hospital records note that, by September 2007, Dr DYB had attempted suicide on approximately 30 occasions. Dr DYB disputes the number of suicide attempts but concedes she attended hospitals on about 30 occasions. 11. On 15 February 2008, Dr DYB gave undertakings to the then relevant board that she would, amongst other matters, continue to receive medical treatment from her treating psychiatrist. When applying for registration at the end of 2008, Dr DYB disclosed she had a diagnosis of Bipolar Disorder. 12. In 2008, Dr DYB completed a post graduate certificate course at an interstate university, and in the same year, completed the final year of her medical studies. 13. In 2009, Dr DYB commenced her internship at a public hospital in X State. She asserts her progress was impeded by her physical health problems. During that year, she experienced a number of health and psychiatric issues. She attended another public hospital in the same State on four occasions in March and June when she took overdoses of prescribed medications. 14. Dr DYB asserts she was diagnosed with autism in 2009. We pause to note Dr DYB's evidence before us is that she was diagnosed with autism as an infant but her parents did not disclose the diagnosis to her. 15. In January 2010, Dr DYB attempted suicide. Whilst hospitalised, she took an overdose of Prazosin. She was subsequently hospitalised in a private hospital. 16. In January 2010, Dr DYB was involved in a dispute with staff at the private hospital. She climbed onto the roof of one of the buildings and was subsequently subject of an involuntary detention order. She was admitted to a public hospital, and whilst subject of the order, took an overdose of amitriptyline which she had brought with her to the hospital. 17. In February 2010, Dr DYB attended another hospital in X State after being told by the then board of X State that she could no longer practise. She attempted suicide on this occasion by inserting an intravenous cannula and bleeding out 1.5 litres of blood into a jar. She was then again subject of an involuntary detention order. 18. In June 2010, Dr DYB's registration (for the purposes of completing her medical internship which required eight to ten weeks further training) lapsed. Dr DYB applied for reinstatement of her registration on 9 June 2010. The then State board refused registration and an appeal by the practitioner to a superior court was unsuccessful. 19. In 2011, during a period in which she was not registered, Dr DYB worked as a lecturer in epidemiology at a university. 20. On 9 January 2012, Dr DYB applied to the then State board for limited registration. Limited registration was granted on the basis that she only practise under supervision for the purposes of completing a board approved internship, or a period of supervised practice at a specified hospital. 21. Dr DYB asserts she encountered a number of difficulties at the specified hospital, including rumours that she had "murdered" or euthanised a person while working on the palliative care ward and as a result had been "struck off". She also asserts that there were rumours she used her pharmacology knowledge to produce and sell illicit drugs, that she had sex with a patient, and that she had stolen drugs from work and tried to kill herself. 22. Dr DYB asserts, during her period at the hospital, that: The head of emergency medicine at [the hospital] personally dislikes me and indicated to the Medical Director that regardless of my performance that if he placed me in her department for the rotation she would ensure I failed so I could not gain general registration 1. The interim Director of Medical Services at the hospital agreed, if Dr DYB could find an intern rotation at another hospital, that he would arrange payment of her salary by the hospital. 2. In April 2013, Dr DYB took up an intern position in a hospital in another State. She subsequently accepted a role as a resident medical officer (RMO) at the same hospital. Conflict arose between Dr DYB and a consultant during the period she worked in the psychiatric unit over prescribing practices. Dr DYB asserts, as a result of her interactions with the consultant, she was asked to take leave without pay. Dr DYB left the psychiatry unit and spent two weeks in geriatrics. Dr DYB thereafter commenced in oncology but asserts she struggled with repeated bouts of vomiting which she asserts was later diagnosed as gastroparesis. Dr DYB was absent from work for approximately two months. 3. In 2013, Dr DYB commenced a six month rotation in palliative care. Although Dr DYB asserts a change in attitude towards her by the head of palliative care on learning of her diagnosis of autism, she says she performed well and passed that rotation. 4. In May 2014, Dr DYB attempted suicide by applying 10 to 12 fentanyl patches to her body. 5. Dr DYB's treating specialist recorded in a report dated 24 July 2015 that Dr DYB developed depression during the period of her employment as an RMO in early 2014 "as a result of stresses encountered within the workplace". 6. In October 2014, Dr DYB ceased work at the hospital, although the hospital continued to pay her salary. She alleges she encountered severe bullying and breaches of her privacy when a doctor accessed her private medical records. 7. Dr DYB later commenced proceedings in the State's Worker's Compensation Tribunal arising out of her asserted workplace treatment at the hospital. 8. On 3 November 2014, the Board wrote to Dr DYB advising her that it required her to undergo an independent health assessment by a psychiatrist, Dr A. Dr A reported that Dr DYB told her she had only had one hospital admission since 2008. 9. On 17 December 2014, Dr DYB attempted suicide by overdose of amitriptyline. Police record removing 22 prescription pads from her residence. She was made subject of an involuntary order at the State hospital. 10. In 2015, Dr DYB engaged in a number of suicide attempts and had many psychiatric hospital admissions. These included an attempt, in March 2015, when she threatened to jump in front of a bus or train. During an admission to hospital, Dr DYB is reported to have engaged in threatening and aggressive behaviour towards a doctor. Further serious incidents occurred in April 2015, including a suicide attempt by overdose of Panadol, codeine, ibuprofen and alcohol. In January that year, her Schedule 8 and Schedule 4 prescribing rights were revoked. 11. In about March 2015, Dr DYB left the State where she had been employed as an RMO and returned to the State where she undertook her medical studies. She continued to see her present treating psychiatrist, Dr AZ, and was admitted to hospital under his care. 12. In April 2015, Dr DYB is reported to have had a "falling out" with Dr AZ. At this time she was refused further treatment at a State hospital because of asserted behavioural issues. Dr AZ spoke to AHPRA on 21 April 2015 about Dr DYB's diagnosis and current illness. 13. In May 2015, Dr DYB attempted suicide by hanging. She was hospitalised but absconded from hospital and took an overdose of self-prescribed amitriptyline. 14. On 19 May 2015, Dr DYB ceased her therapeutic relationship with Dr AZ. At this time two other psychiatrists recorded their impression that Dr DYB suffered from borderline personality disorder. Subsequently, Dr DYB resumed her therapeutic relationship with Dr AZ. He remains her treating psychiatrist. 15. By letter dated 30 June 2015, Dr DYB wrote to a Local Health District to record a formal complaint, and an intention to seek damages in respect of her hospital admissions between 13 and 20 May 2015. 16. On 22 May 2015, the Board imposed conditions on Dr DYB's registration. 17. On 18 September 2015, Dr DYB was brought to an emergency department after she called Lifeline. Police found her with a knife and threatening self-harm. 18. On 19 September 2015, Dr DYB was admitted to an X State hospital after being found by Police standing on a chair with a rope around her neck. Hospital records note that Dr DYB was physically violent and verbally abusive and threatening to staff. She attempted further acts of self-harm whilst hospitalised. 19. On 24 September 2015, Dr DYB returned to the State where she had finished her internship and commenced working as a RMO. She was admitted to the Psychiatric Intensive Care Unit, left the hospital, went to the roof of a carpark and threatened to jump off the roof. On her return to hospital, Dr DYB was involved in an incident with a staff member. Dr DYB was charged with assault. Following a jury trial in March 2019, she was found not guilty by reason of insanity. Dr DYB told us during the course of her submissions that the Police are investigating and may bring charges against the nurse who was the assault victim in the criminal proceedings. Dr DYB said she had been unconditionally released from the insanity verdict. 20. On 30 September 2015, Dr DYB took a massive polypharmacy overdose. Between 16 and 20 October 2015, Dr DYB engaged in a number of suicide attempts by overdosing, including an intentional insulin overdose. 21. On 30 October 2015, Dr DYB surrendered her registration. 22. In February 2016, Dr DYB obtained employment in a government department. 23. In February 2017, Dr DYB applied to AHPRA for general registration. The Board required Dr DYB to undergo an independent health assessment by Dr XY. Dr XY provided a health assessment dated 20 July 2017. 24. In March 2017, Dr DYB underwent treatment for idiopathic intracranial hypertension. She took approximately 11 months sick leave from her government employer. 25. On 16 August 2017, the Board granted Dr DYB general registration subject to conditions, including a condition that she was not to engage in direct or indirect clinical care. 26. On 17 January 2018, the Board varied the conditions on Dr DYB's registration, but continued the condition that she was not to engage in direct or indirect clinical care. 27. On 1 February 2018, after representations from Dr DYB about the practical effect of some of the conditions imposed, the Board varied the conditions. 28. Dr DYB asserts that, on returning to work at her government position in February 2018, she developed psychological symptoms including anxiety, depression, suicidal thoughts and social withdrawal. 29. Between February and May 2018, ambulances were called to Dr DYB's workplace on 19 occasions. Dr DYB asserts this was because employees at her workplace called ambulances when she suffered low blood sugar levels. 30. On 16 May 2018, Dr DYB lodged a claim for compensation against her government employer. A certificate provided by Dr DYB's then general practitioner, Dr AB, described Dr DYB's clinical symptoms and diagnosis as "Depression and anxiety due to workplace stress. Recurrence in the last week of anorexia due to mental health". In commenting on Dr DYB's mental capacity, Dr AB stated she suffered from "depression and anxiety with suicidal ideation". 31. On 18 May 2018, Dr DYB published a series of tweets threatening suicide. 32. On 18 May 2018, Dr DYB attended the emergency department at a semi-rural hospital in this State following a suicide attempt where she tried to jump off a bridge. After absconding from an ambulance on 19 May 2019, she was found unconscious by police in a hotel and admitted to a Sydney public hospital. 33. Dr DYB last attended her government job on 29 May 2018. On the same day, Dr DYB lodged a further worker's compensation claim against the insurer of her government department. Dr DYB made a further claim on 9 November 2018. 34. On 30 May 2018, one of Dr DYB's current general practitioners contacted her employer and reported he was concerned that she may have committed suicide and that the police were looking for her. On the same day Dr DYB was admitted to a Sydney public hospital where she remained until 2 June 2018. Hospital records disclose Dr DYB took an intentional overdose of 200 to 300 propranolol tablets. She was subject of an order under the Mental Health Act 2007 (NSW) and, after she attempted to abscond, was subject to chemical and mechanical restraints. During her admission Dr DYB attempted to strangle herself with clothing. 35. On 14 June 2018, Dr AZ prepared a report in which he stated that Dr DYB was not fit to attend court for the hearing of the criminal assault charges against her in the State in which she was a RMO. In a later report prepared for the Court, Dr AZ opined that Dr DYB is: a high-functioning person with an autism spectrum disorder, which has a marked impact upon her ability to interact with other people. She has a second diagnosis of a recurrent Major Depressive Disorder, which is associated at times with marked agitation, impulsivity and elevated levels of suicidality. 1. On 21 August 2018, the Board further varied the conditions by removing condition 5 as well as conditions 7 to 12. In broad terms, these conditions relate to prescribing Schedule 8 and Schedule 4 drugs, a condition that Dr DYB attend her general practitioner at specified times, and that the general practitioner provide reports to the Board. 2. On 28 August 2018, Dr DYB's first worker's compensation claim was declined by her employer's insurer. On 24 September 2018, Dr DYB sought a reconsideration of her claim. 3. On 13 October 2018, Dr DYB's employer engaged a rehabilitation provider to assist with her return to work. It is asserted that Dr DYB sought to place conditions on how her employer engaged with the provider. 4. Between 17 and 18 October 2018, Dr DYB presented to a Sydney public hospital after becoming aware the police were looking for her after she threatened suicide to a representative of her employer's insurer. 5. On 17 October 2018, Dr DYB sent an email to her treating psychiatrist, Dr AZ, in which she explained: I stopped agomelatine a few weeks ago because I felt like I didn't need it and that it wasn't really making any difference to things. I know that was probably not wise. I've spiralled down quite low and become extremely sensitive and anxious like in the past. Work have been very distressing recently in their handling of things and I have been contemplating suicide. I ran away today (drove away) like I do when overwhelmed with a plan to either kill myself or get some head space to come up with other strategies 1. After being discharged from the public hospital on 18 October 2019, later that day Dr DYB self-presented at the hospital after she had suicidal thoughts. Dr DYB told her treating psychiatrist that she had handed over to the hospital her "huge stockpile of 'poison'". 2. Dr DYB was re-admitted to the public hospital between 18 and 22 October 2018. Dr DYB absconded from the hospital whilst an involuntary patient on 22 October 2018. On leaving the hospital, Dr DYB took an overdose of propranolol, then telephoned persons who contacted the police. She was re-admitted as an involuntary patient, but absconded again on 23 October 2018. Hospital records note that, whilst absent from the ward, Dr DYB contacted the ward on multiple occasions expressing dissatisfaction about her treatment. She is also reported as advising hospital staff that she had obtained 100 tablets of amitriptyline. Dr DYB was apprehended by police and returned to the ward on 24 October 2018. 3. On 23 October 2018, Dr DYB's employer's insurer wrote to her and advised its original decision to reject her first worker's compensation claim was confirmed. 4. On 25 October 2018, Dr DYB attended the emergency department at another Sydney public hospital. Dr DYB is reported as telling staff that after two nights of disturbed sleep, she ceased taking agomelatine approximately four weeks prior to her admission. Hospital notes at this admission record Dr DYB engaged in destructive behaviours including throwing chairs around the unit and picking up an exercise bike and throwing it into a wall in the courtyard. Dr DYB was noted to have banged her head repeatedly against a wall whilst in seclusion. 5. On 9 November 2018, Dr DYB made a further worker's compensation claim against her employer's insurer. She claimed that, in or about 29 May 2018, she suffered a workplace injury of "depression (with associated suicidal ideation and action), severe anxiety, psychological trauma". 6. Between 9 and 19 November 2018, Dr DYB was an inpatient at the country NSW Hospital. During part of the admission she was an involuntary patient. The event precipitating her admission was an overdose of propranolol and lorazepam. During her admission, Dr DYB dislocated her hip and was taken by ambulance to the emergency department of the hospital. 7. On 14 November 2018, Dr DYB forwarded an email to her employer and advised, amongst other matters, that she would no longer be seeing her then long standing general practitioner. 8. On 21 December 2018, Dr DYB commenced proceedings against her employer's insurer in the responsible tribunal, challenging the insurer's decision of 19 December 2018 to reject her worker's compensation claim. 9. On 22 March 2019, a jury in the criminal proceedings brought against Dr DYB found her not guilty of two assault charges by reason of insanity. Matters in issue 1. We discern the issues requiring determination in this matter are: 1. Does Dr DYB suffer from an impairment as defined in the National Law? 2. If Dr DYB does suffer an impairment, what is the nature of that impairment? 3. Does the nature of Dr DYB's impairment mean she cannot safely engage in direct or indirect clinical care? 4. Can Dr DYB achieve registration by the imposition of conditions? 5. What conditions are necessary to ensure the health and safety of the public? 6. If it is appropriate to impose conditions, what review period should be imposed? 7. Is it appropriate or necessary that we make a non-publication order in respect of our decision and restrict access to the material before us in these proceedings? The relevant legislation 1. These appeals are brought under s 175 of the National Law. Section 175 provides as follows: 175 Appellable decisions [NSW] (1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision— (a) a decision by a National Board to refuse to register the person; (b) a decision by a National Board to refuse to endorse the person's registration; (c) a decision by a National Board to refuse to renew the person's registration; (d) a decision by a National Board to refuse to renew the endorsement of the person's registration; (e) a decision by a National Board to impose or change a condition on a person's registration or the endorsement of the person's registration, other than— (i) a condition relating to the person's qualification for general registration in the health profession; and (ii) a condition imposed by section 112(3)(a); (f) a decision by a National Board to refuse to change or remove a condition imposed on the person's registration or the endorsement of the person's registration; (g) a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board. Note. An appeal under this section to the Tribunal in its capacity as an appropriate responsible tribunal is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) For the purposes of subsection (1), the appropriate responsible tribunal for an appellable decision is— (a) for a decision in relation to a registered health practitioner, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; or (b) for a decision in relation to a student, the responsible tribunal for the participating jurisdiction in which the student is undertaking the approved program of study or clinical training; or (c) for a decision in relation to another person— (i) the responsible tribunal for the participating jurisdiction in which the person lives; or (ii) if the person does not live in a participating jurisdiction, the responsible tribunal for the participating jurisdiction nominated by the National Board that made the appellable decision and specified in the notice given to the person of the appellable decision. (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the National Board, may be given. Note. This section is a substituted New South Wales provision. 1. The powers to be exercised by the Tribunal on determining the appeal are found in s 175C of the National Law. That section provides as follows: 175C Decision (1) After hearing the matter, the responsible tribunal may— (a) confirm the appellable decision; or (b) amend the appellable decision; or (c) substitute another decision for the appellable decision. (2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision. Note. This section is a Health Practitioner Regulation National Law provision (see section 202 of the National Law). Note. Section 203 of the Health Practitioner Regulation National Law is not applicable to New South Wales. 1. In determining any matter under the National Law, the Tribunal is guided and informed by the objects and principles of the legislation found in s 3 and s 3A. The latter provision is a NSW provision. 2. Section 3 and s 3A provide as follows: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for— (a) the regulation of health practitioners; and (b) the registration of students undertaking— (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are— (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows— (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note. This section is an additional New South Wales provision. 1. The Board's powers, which are exercisable by us on hearing this appeal, are found first at s 52 of the National Law. Section 52 provides: 52 Eligibility for general registration (1) An individual is eligible for general registration in a health profession if— (a) the individual is qualified for general registration in the health profession; and (b) the individual has successfully completed— (i) any period of supervised practice in the health profession required by an approved registration standard for the health profession; or (ii) any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the profession; and (c) the individual is a suitable person to hold general registration in the health profession; and (d) the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and (e) the individual meets any other requirements for registration stated in an approved registration standard for the health profession. (2) Without limiting subsection (1), the National Board established for the health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83. 1. Also relevant to our consideration is s 55 of the National Law. It provides as follows: 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if— (a) in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or (c) the individual has previously been registered under a relevant law and during the period of that registration proceedings under Part 8, or proceedings that substantially correspond to proceedings under Part 8, were started against the individual but not finalised; or (d) in the Board's opinion, the individual's competency in speaking or otherwise communicating in English is not sufficient for the individual to practise the profession; or (e) the individual's registration (however described) in the health profession in a jurisdiction that is not a participating jurisdiction, whether in Australia or elsewhere, is currently suspended or cancelled on a ground for which an adjudication body could suspend or cancel a health practitioner's registration in Australia; or (f) the nature, extent, period and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession; or (g) the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession; or (h) in the Board's opinion, the individual is for any other reason— (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely. (2) In this section— relevant law means— (a) this Law or a corresponding prior Act; or (b) the law of another jurisdiction, whether in Australia or elsewhere. 1. Impairment, insofar as the term relates to a registered health practitioner, is defined in s 5 of the National Law in the following terms: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect— (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or … 1. The Board, in determining a health practitioner's application for registration, may grant the application but subject to conditions. The power to impose conditions is found in s 83 of the National Law as follows: 83 Conditions of registration (1) If a National Board decides to register a person in a health profession for which the Board is established, the registration is subject to any condition the Board considers necessary or desirable in the circumstances. Note. A failure by a registered health practitioner to comply with a condition of the practitioner's registration does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (2) If the National Board decides to register the person subject to a condition referred to in subsection (1), the Board must decide a review period for the condition. Expert and treating doctors' evidence Dr DYB's expert evidence 1. Dr DYB relied on voluminous medical evidence, including reports from her treating psychiatrist, one of her present treating general practitioners, a doctor who was the clinical supervisor during her initial residency training, and a psychologist with expertise in autism spectrum disorder. While each doctor or psychologist, in answers given to questions posed in cross-examination, provided some caveats to the opinions expressed in written statements, the general thrust of the evidence was that Dr DYB should be granted general registration with or without conditions. Dr AZ, Dr DYB's treating psychiatrist's records were produced under summons and included reports prepared for the criminal trial. He was subject to lengthy and careful cross-examination by senior counsel for the Board. Dr AZ, the treating psychiatrist 1. Dr DYB relied on a number of reports of her treating psychiatrist including reports forwarded to AHPRA in the period 2012 to 2015, as well as reports dated 10 July 2017 and 28 August 2018. The Board provided us with further material from Dr AZ, produced by him pursuant to a summons. The material produced includes a report addressed "To whom it may concern" dated 27 February 2019 and a report dated 24 August 2018 written for the criminal proceedings. 2. The summons material also contained a report of Dr AZ dated 9 March 2018, also addressed "To whom it may concern", as well as a report dated 14 June 2018 noted to be in support of a request for an adjournment. 3. We commence our discussion of Dr AZ's evidence noting that he has had the benefit of observing Dr DYB on a reasonably regular basis since 2012. In his report dated 25 July 2015 he opined: It is my opinion that Dr DYB requires ongoing psychiatric supervision, and it is likely in the future she will experience further episodes of depression. It is likely that these episodes will be atypical in presentation, as they have been in the past, and will be influenced by her Autism Spectrum Disorder. This, however, in my opinion, does not preclude her from being able to contribute to the profession of medicine in Australia. 1. The opinion expressed by Dr AZ in 2015 remained essentially the same in his later reports and oral evidence before us. 2. In a report dated 10 July 2017, Dr AZ commented on Dr DYB's difficulties in her interactions with others. He opined, in circumstances where Dr DYB feels trapped and a need to escape, she may engage in behaviours which are regarded as violent, but are not as such. He also noted that Dr DYB has significant sensitivities to a variety of psychotropic medications "which result in significant behavioural changes". 3. In his report dated 9 March 2018, addressed "To whom it may concern", Dr AZ commented on the conditions then on Dr DYB's registration, noting the conditions "prevents her from being able to take medication prescribed for her, as well as a variety of other issues which cause her both considerable concern and considerable inconvenience and potentially could be harmful to her health". It is apparent from the content of the letter that it was written in support of an application Dr DYB made seeking a stay of the conditions on her registration pending the hearing of her appeals. In the letter Dr AZ went on to explain: In view of this and the stability she has demonstrated for the most part for the last two years it is my opinion that if she were to be currently practising as a medical practitioner she would not be a potential harm to the health and wellbeing of the general public. 1. This opinion appeared to be qualified by the final paragraph of Dr AZ's letter which referred to conditions on Dr DYB's registration being reviewed "and made into a form which would not be placing Dr DYB in conflict with her own health and wellbeing and being unable to comply with the conditions". 2. On 28 August 2018, Dr AZ prepared a lengthy report for the criminal proceedings. In that report he explained that, in his opinion, Dr DYB suffers from two psychiatric disorders. He explained Dr DYB's first diagnosis: "she is a high-functioning person with an autism spectrum disorder which has a marked impact upon her ability to interact with other people". He referred to the second diagnosis as follows: She has a second diagnosis of a recurrent Major Depressive Disorder, which is associated at times with marked agitation, impulsivity and elevated levels of suicidality. 1. Dr AZ outlined Dr DYB's history in 2015 and went on to note that she had "several years of wellness with only one recurrence of her depressive illness in 2018". He went on to explain that, after an episode in 2018, which involved marked agitation and suicidal behaviour and reckless impulsive acts, her depression resolved with the antidepressant agomelatine. 2. Dr AZ then set out a detailed explanation as to why, in his opinion, medication which had been prescribed for Dr DYB as a resident in the State where she was an RMO could have caused her to develop delirium (acute agitated brain syndrome). He noted that Dr DYB had attempted to advise medical staff treating her at the relevant time that she was unable to tolerate benzodiazepines. 3. Dr AZ prepared a report for these proceedings dated 27 February 2019. Dr AZ noted the report was prepared based on a series of questions posed to him by Dr DYB for the purpose of these appeals. 4. Dr AZ set out a brief history of his therapeutic relationship with Dr DYB and noted he was in a superior position to provide an assessment than independent medical examiners because of his long term association with her, including periods when he has been able to observe her when "she has not been in crisis or suffering from an acute depressive episode". 5. Dr AZ opined, at that time, the only condition for Dr DYB to be able to continue to practise "is the requirement that she has ongoing contact with an appropriately placed psychiatrist who has an understanding of her condition and her ongoing needs". 6. Dr AZ commented on the type of practice he saw as appropriate for Dr DYB on page 3 of his report. He explained: Given Dr DYB's interest and expertise in the pharmacological aspects of medicine, it is my opinion that her current work situation with [government department] is an appropriate work setting for her. Given her interest in pharmacogenomics, it is my opinion that it would be beneficial to the health population of Australia for her to be able to have a medical practice focusing upon this area of practice. I would anticipate that such a medical practice would be narrowly focused on medical pharmacology and also pharmacogenomics. However, I do not believe that it is necessary for her to have a specific restriction on her practice of medicine. 1. Dr AZ also commented on the opinions expressed by the Board-appointed psychiatrist, Dr XY, noting that he did not make a diagnosis of borderline personality disorder or bipolar affective disorder. He referred to Dr XY's diagnosis of personality disorder with mixed features as being consistent with the diagnosis of an Autism Spectrum Disorder. 2. Dr AZ expressed the view in his report that Dr DYB should not be limited in her practice because she has, in recent times, demonstrated an ability to work in an organisational setting. We note that view was expressed in February 2019, and apparently without full knowledge of Dr DYB's worker's compensation claims relating to her present employment and the underlying basis for those claims, or the fact she has not returned to work. 3. At that point in time, Dr AZ noted that Dr DYB had been well from 2015 to early 2018. He opined, as at February 2019, the depressive disorder that Dr DYB suffers "is currently in remission". At the conclusion of his report Dr AZ opined: In summary, it is my opinion that Dr DYB is at this point in time capable of working as a medical practitioner and she does not represent a danger to the health and safety of the public. 1. Dr AZ was extensively cross-examined by senior counsel for the Board. Dr AZ was questioned about Dr DYB's assertion that many of her suicidal attempts and/or impulsive behaviour could be attributed to an adverse reaction to psychotropic medication. He conceded that her May 2014 suicide attempt when she applied 10 to 12 fentanyl patches was not likely to have been an idiosyncratic response to a drug. He made similar concessions in respect of the practitioner's mid-December 2014 overdose with amitriptyline, as well as her March 2015 or 18 April 2018 suicide attempts. 2. Dr AZ confirmed that his diagnosis of major depressive disorder was one which he had reached over time. He also confirmed that Dr DYB has developed an increased ability, over time, to understand she is sensitive to stressors [transcript 17 April 2019 p 208]. 3. Dr AZ confirmed that, by 2015, he had formed the clinical opinion that Dr DYB was likely to experience further episodes of depression in the future. In his evidence on 16 July 2019, Dr AZ reiterated his opinion that, at some time or times in the future, the practitioner is likely to experience a further major depressive episode. 4. Dr AZ opined that Dr DYB is more vulnerable to workplace stressors when she is depressed, but said, in recent times, "Dr DYB has indicated that she now appreciates that she does have a depressive disorder that does require ongoing treatment and is accepting of that". 5. Dr AZ acknowledged that, in 2018, Dr DYB reported she suffered multiple stressors in her workplace including problems with her physical health (her glycaemic problem, and recurrent hip dislocations). He also acknowledged that he knew Dr DYB did not work for 11 months when she reported she was being treated for intracranial hypertension. 6. When questioned about Dr DYB's acceptance that she needed to take antidepressants in June 2018, Dr AZ explained that "at that point in time she still had mixed feelings about whether or not that was the case". Dr AZ also acknowledged that, as at November 2018, Dr DYB had limited insight into her illness and she was non-compliant with his treatment advice to her. 7. Dr AZ was invited to comment on Dr DYB's statement in her submissions, and before us, that she does not have an impairment (as defined in the National Law), particularly in light of her failure to disclose the significant number of psychiatric admissions she had in 2018. Dr AZ said he thought Dr DYB's submission is based on her position that she does not practise when unwell and therefore she does not have an impairment when she is practising [transcript 17 April 2019 p 243]. 8. In his further evidence given on 16 July 2019, in answers posed in cross-examination by Ms Richardson, Dr AZ opined that Dr DYB is now able to look longitudinally at her depressive disorder and acknowledge that disorder requires treatment. He also opined that, when she is well, Dr DYB is capable of functioning at a very high level. He indicated his view that Dr DYB's acceptance of, and insight into, her major depressive illness occurred in about February 2019. 9. Dr AZ remained firm in his evidence that, although Dr DYB has an illness, she does not require conditions to be imposed on her registration. He referred to the intention or purpose of the National Law to protect the public and said he was not aware of any evidence that Dr DYB's practice of medicine had put the public in danger. He acknowledged, however, there would be times when Dr DYB was not well enough to practise. When challenged about the possibility that, if feeling well, Dr DYB may stop taking her medication he said that, over the last three months of these proceedings, Dr DYB has understood it is in her best interests to take her medication. 10. Dr AZ was strongly in favour of a non-publication order being made on a final basis, notwithstanding Dr DYB's strident view that no such order should be made insofar as these proceedings relate to her mental health history. He noted that Dr DYB had, in the past, been adversely affected by persons having access to her private medical records, and he expressed concern for her long-term emotional health. This, he suggested, could be adversely impacted if details of her mental health were published. 11. We discuss our assessment of the opinions expressed by Dr AZ below. The former medical director 1. Dr DYB relied on a report by the former interim Director of Medical Services at the hospital where she commenced her internship, Dr BC. Dr BC gave evidence by AVL and was cross-examined by Ms Richardson. 2. Dr BC acknowledged that he has a personal relationship with Dr DYB principally because of her friendship with his daughters who have also been diagnosed with autism. 3. Dr BC provided a letter dated 27 March 2019 in which he explained that he had supervised Dr DYB between 2012 and 2013 when she completed her second internship. He explained that he had been required to provide monthly performance reports to the Board in compliance with conditions imposed on the practitioner's registration. He confirmed in cross-examination that at the time he prepared a report, used in legal proceedings when Dr DYB challenged conditions placed on her registration, he had only met her briefly, but had access to her intern reports. Later in his evidence, he confirmed that his supervisory role was an indirect one. Although Dr BC has relocated to the United Kingdom, he explained that he had maintained contact with Dr DYB. 4. Dr BC agreed that, during the period before Dr DYB moved interstate to complete her internship, challenges arose about her communication style with some senior colleagues. He explained her communication style "presents challenges" but said "I don't believe it is something that makes performing as a doctor impossible" [transcript 16 April 2019 p 164]. Dr BC acknowledged that while Dr DYB was working as an RMO interstate he became aware she experienced considerable difficulties. 5. Dr BC referred to some reports he had received about Dr DYB which were complimentary of her clinical ability and knowledge, her ability to assimilate multiple problems and to arrive at diagnoses which had eluded practitioners with vastly more experience than her. 6. It was clear to us that Dr BC gave significant support to Dr DYB during the period he was her supervisor. He did so with considerable appreciation of her diagnosis of autism, and how that diagnosis actually affected Dr DYB's ability to communicate with other senior medical colleagues. 7. With no disrespect to Dr BC, we agree with the submissions made by Ms Richardson that, for our present decision making purposes, Dr BC's evidence is not evidence to which we can give any considerable weight. He was not involved in direct supervision of Dr DYB in 2012 and 2013, but relied on reports from her direct supervisors. He commendably implemented arrangements for Dr DYB to complete the remaining period of her internship interstate, no doubt partly motivated by his awareness of the consequences of her autism diagnosis due to his own family experiences. 8. Dr BC's experience of Dr DYB's clinical skills and her recent medical history is not within his personal knowledge. Those matters significantly affect any weight we can give to his evidence. 9. We have however taken into account his evidence about the positive reports in 2012 of Dr DYB's clinical acumen and skills. We also take into account that, during the period when he had access to her supervisors' reports, no issue of patient safety or harm came to his attention. 10. While Dr BC and his family have maintained a friendship with Dr DYB, he does not have the direct clinical experience of Dr AZ or others more closely involved her in recent care and activities. The psychologist 1. Dr DYB also relied on a report by Dr DE dated 28 April 2018. Dr DE is a PhD and adjunct professor who practises as a clinical psychologist. He has specialist expertise in autism. Dr DE originally saw Dr DYB in February 2010 when he confirmed a diagnosis of autism spectrum disorder (ASD) Level 1. His only other contact with Dr DYB was in April 2018 when he had a Skype consultation with her. At the time of his report, Dr DE noted that Dr DYB had not had a suicide attempt since 2015. 2. In his most recent report (his earlier report having been prepared for the Board proceedings in 2012) he expressed concern at a statement taken from a report of Dr XY. It will be remembered that Dr XY is the Consultant Psychiatrist who examined Dr DYB and prepared a report for the Board. Dr XY referred to Dr DYB's "highly critical and judgemental interpersonal style" which could result in her being overly critical of the competence of other professionals if she engaged in clinical pharmacogenomics. Dr DE expressed the view in his report that Dr DYB "would be best placed working in a solo practice providing medical expertise to her patients rather than in an organisational setting such as a hospital". 3. However, in answer to questions posed to him in cross-examination, Dr DE explained he had made that recommendation because of Dr DYB's diagnosis of autism. He made it very clear it was not his recommendation that it was presently appropriate for Dr DYB to practise in a solo practice situation. The following exchange occurred between Dr DE and Ms Richardson: Q. Is that because of your view that she has ASD, that you say she'd be best placed in solo practice? A. Yes. Because of her autism. Q. But you would accept that the tribunal which is made up of specialist expertise, including doctors, would have to consider other factors, such as Dr DYB's being relatively junior doctor as to whether it would be appropriate for her to in fact be in solo practice? Do you accept that? A. Yes. My opinion there is really for the long term future; that she may have difficulties in large organisations and systems but has the potential to be successful in a solo practice when she is ready. Q. But you're not suggesting that's an appropriate course now, is that correct? A. To be in social practice? Q. To be in solo practice A. Solo practice? 1. Dr DE further qualified the statement in his report as follows: Q. [Dr DE], you're aware that Dr DYB has had a number of interruptions to her training because of illness and registration issues? A. Yes. Q. You're not suggesting that it's appropriate for her to go into solo practice now, are you? A. No, absolutely not. No. This is really long term with regard to her medical future. I'm really giving an opinion regarding my knowledge of autism; is that sometimes a person is better in working as an individual rather than necessarily in a large organisation. That can be one of the characteristics of autism. 1. We had no hesitation in finding that Dr DE was sincere in his understanding of and support for persons suffering a diagnosis of autism, including Dr DYB. However, his involvement with Dr DYB has been extremely limited, and he had no knowledge of her multiple hospital admissions, particularly in late 2018, the diagnosis of her treating psychiatrist, or her workplace difficulties. Overall, we agree with and adopt his most appropriate concession that it would not be appropriate for Dr DYB to engage in solo practice at the present time, given her limited clinical experience and long break since she engaged in direct patient care. The treating general practitioner 1. There was no evidence before us from Dr DYB's former general practitioner who she relied on when these proceedings commenced. It appears their clinical relationship ceased in about November 2018. Dr DYB presently attends a general practice in the vicinity of her residence where she lives with her parents. There are two doctors in that general practice. We heard from Dr FG, one of the practitioners. He is an accredited general practitioner with a specific interest in autism. He was recommended to Dr DYB by Dr DE. 2. Dr DYB has been attending Dr FG since January 2018. He provided a brief report dated 7 March 2019 addressed "To whom it may concern". 3. Dr FG stated: I have reviewed her extensive medical file and have a good knowledge of her history and medical conditions. In my opinion she is fit to work in clinical medical practice, and if allowed to do so will not pose a threat to the public (even if registered without conditions). 1. In his oral evidence in chief, Dr FG stated that he thought it was essential that Dr DYB have support for her physical conditions. He further opined that if Dr DYB was able to work in her area of special interest this would boost her self-esteem and assist her in maintaining good mental health. 2. Ms Richardson's cross-examination of Dr FG highlighted his lack of specific knowledge of Dr DYB's hospital admissions, particularly specific details of her admissions in late 2018. He agreed he had not spoken with Dr AZ, although he had received Dr AZ's reports as well as Dr DYB's records from her former general practitioner. He confirmed he had not prescribed any psychotropic medication for Dr DYB. He denied prescribing agomelatine for her except on one occasion when Dr DYB explained that there was a financial benefit to her if she could claim this non-PBS drug on her health insurance in a particular period. 3. Dr FG acknowledged he was not directly aware of Dr AZ's diagnosis of recurrent major depressive disorder that is atypical, in that it is associated with marked agitation, impulsivity and elevated levels of suicidality, but he was not surprised by it [transcript 16 April 2019 p 113]. 4. Dr FG, most appropriately we would say, modified the view expressed in his letter of March 2019 to confirm that, in his opinion, if the practitioner gained registration it would not be appropriate for her to have unconditional registration. In answer to questions posed in cross-examination, he acknowledged the need for a practitioner returning to work after a cessation of practice for a considerable period to have supervision where a mental health condition is concerned [transcript 16 April 2019 p 118]. He also agreed that Dr DYB's recent work history at a government department may be of value in determining her fitness to practise as a medical practitioner. 5. Dr DYB sought to clarify Dr FG's modification of his views about conditions on her registration in re-examination. Notwithstanding Dr FG's concession, he did not believe that Dr DYB would be a risk to the public if she had ongoing treatment and had support of a medical team, his evidence was clear that he did not have any real experience in assessing the fitness of medical practitioners to practise, nor any in depth knowledge of the types of conditions the Tribunal, standing in the shoes of the Board, could impose. These findings are not to be seen as a criticism of Dr FG. Rather, they reflect the reality of his experience and the position he finds himself in as Dr DYB's fairly recently engaged general practitioner. 6. We accept Dr FG is in a difficult position. He is supportive of Dr DYB, sensitive to the obstacles and difficulties she faces because of her diagnoses, and aware of the need to maintain his therapeutic relationship with her. At the same time, he understandably lacked the sort of detailed evidence which was before us or, importantly, any real knowledge of Dr AZ or Dr XY's views and their evidence before us. In all these circumstances, while we gave some weight to his opinions, those opinions could not be determinative of the issues we are required to resolve. Dr JK 1. Dr DYB obtained a letter from Dr JK, a psychiatrist who was her treating psychiatrist when she was a medical student. He had no recent knowledge of Dr DYB's history. We were unable to place any weight on his evidence, other than it forming part of the matrix of facts before us. The insurer's appointed psychiatrist 1. Dr DYB's material contained a detailed psychiatric report dated 7 August 2018. This psychiatrist opined that Dr DYB's condition was complex and that she should adhere to treatment plans developed with her general practitioner and psychiatrist. In response to the question "Does the employee describe psychological symptoms similar to those seen in the broader community in similar situations? If not, please explain", the psychiatrist opined as follows: In my opinion Dr DYB's circumstances are such that she cannot be compared to the wider community. Her physical and psychological problems, most of long standing make her unique in many ways… 1. The psychiatrist also opined: I note that Dr DYB has had prior episodes of depression and suicidal behaviour in the context of stressors. I consider that Dr DYB will remain at risk of recurrence of psychiatric symptoms and possible suicidal behaviour in the context of stressors in the future. 1. We refer to the opinions expressed by this psychiatrist and note his prognosis for Dr DYB is broadly similar to that expressed by Dr AZ. We consider it is, as is Dr AZ's opinion, relevant to our assessment of whether Dr DYB does or is likely to suffer from a disability or disorder which affects her capacity to practise medicine. The Board's expert 1. The Board relied on two reports of Dr XY, a psychiatrist retained to provide an independent assessment of Dr DYB. He provided two reports, dated 20 July 2017 and 21 June 2018. Before he commenced his oral evidence, Dr XY confirmed he had been provided with Dr AZ's reports, and those of Dr DE. He additionally received documents from Dr DYB's employer's insurer and the Board's further summary of factual material. 2. In his first report Dr XY noted, at that time, Dr DYB was on sick leave and receiving treatment for idiopathic intracranial hypertension. Following a recommendation from a neurosurgeon, Dr DYB had undergone bariatric surgery on the basis that weight loss would likely cure her illness. Dr XY also reported that Dr DYB had told him she had suffered hyperinsulinaemic hypoglycaemia for many years. 3. At the time of his first report, Dr XY recorded that Dr DYB expressed the view that she wished to work as a medical officer in a government department because of her interest and expertise in pharmacology and toxicology rather than employment in an administrative role. Dr DYB is also recorded as saying that she would like to practise in the field of pharmacogenomics and "offer personalised medicine for individuals who have issues with medication". Dr XY noted that Dr DYB said she wanted full registration without conditions. At the time of his report, Dr DYB told Dr XY that her only psychological problem was that she is autistic. 4. Dr XY, prior to completion of his first report, saw Dr DYB on two occasions and received extensive material from her as well as briefing material from the Board. Dr XY took a detailed history which is recorded in his report. We note that Dr DYB disputes the accuracy of aspects of her history set out in the report. 5. Dr XY commented on the history Dr DYB gave to him as follows: There was however a tendency in her narrative to attribute blame to all manner of individuals particularly senior medical professionals and AHPRA for her multiple overdoses and hospitalisations. 1. Dr XY responded to a number of questions posed by the Board. In response to whether or not Dr DYB suffers an impairment (as defined in s 5 of the National Law) he opined: I think she suffers from a personality disorder with mixed features. She is quite adamant she has high-functioning autism and I don't think that one could reasonably argue against this. She has marked obsessional traits which have been ongoing since childhood and she has multiple suicide attempts and engagements with the mental health services particularly in [name of capital city]. She has been diagnosed as having a borderline personality disorder based on her multiple suicide attempts and affective instability. She strenuously denies this label. She certainly has features of personality dysfunction and she has very high standards of interpersonal conduct. She has a high degree of interpersonal sensitivity, she is very critical and judgemental and projects blame onto others. When distressed, in the past, she has acted out in extraordinary lethal overdoses. Currently she does not display any acting out behaviours and she seems to be in a reasonable domestic circumstance and stable employment. 1. Dr XY was then asked to comment on whether "Dr DYB's capacity to practice is affected by her health (a) the nature, severity and history of her specific health concerns". He responded as follows: Given her track record, it is more probable than not that she would have considerable difficulty coping with medical employment in an institutional setting. It is more probable than not that she would have difficulties coping in a large corporate medical practice for similar reasons. She wishes to pursue a career in pharmacogenomics and continue in the public service. I would have concerns about her working in clinical pharmacogenomics because she will no doubt see many examples where medical practitioners have failed to properly diagnose deficiencies of certain cytochrome P450 enzymes which would adequately explain patients' sensitivity to medication. I would have concerns given her highly critical and judgemental interpersonal style that she may be overly critical of the competence of other professionals. I would therefore have concerns about unrestricted registration. 1. At the time of his first report, Dr XY recommended that Dr DYB be given limited registration so that she could pursue her medical career in a government department. He went on to explain: If there is a two year period of emotional stability, no overdoses or other self-harm then this issue could be revisited. 1. In anticipation of the hearing of Dr DYB's appeals, which had been proposed to be expedited in 2018 and listed for hearing in August 2018, the Board's solicitors wrote to Dr XY seeking an updated report, and sought responses to various questions arising from the opinions expressed in his first report. Dr XY provided a second report dated 21 June 2018. 2. In commenting on his earlier opinion that Dr DYB suffers from a personality disorder with mixed features, Dr XY elaborated as follows: The term borderline personality disorder is a label which is used a lot in mental health settings. She clearly has problems with the diagnosis and took [a psychiatrist] to task about it. When I saw her I noted the historical diagnosis of borderline personality disorder but felt it did not sufficiently explain her historical dysfunctional behaviour. Rather like 50% of people who have personality disorders she has mixed features. By mixed features I refer to her autistic traits, her obsessional traits and acting out behaviours which have been extraordinarily destructive. That type of behaviour is associated with the borderline personality. Her past history is littered with such interpersonal difficulties and functioning. 1. In responding to the question of why this diagnosis affected Dr DYB's capacity to practise as a medical practitioner, Dr XY explained: Medical practitioners require to have a relatively stable interpersonal repertoire in order to function safely and competently. Her history would suggest that she does not have the requisite equanimity of character to practice medicine in a consistently professional manner. 1. Dr XY responded to questions posed to him by the Board about the type of work he considered would be appropriate for Dr DYB. He opined Given her high degree of interpersonal sensitivity I am of the view that it would suit her intelligence, her knowledge base and her personality to be doing highly technical work and be supported by a supervisor who gives her clear instructions and clear feedback about her performance. 1. Dr XY went on to explain why he did not support Dr DYB being involved in the clinical care of patients as follows: At this point in time given her past history I would not feel comfortable with her working in a clinical treatment setting. Clinical work involves making judgements about a patient's symptoms, history and investigations. It also involves interacting with people, their families and other clinicians, many of whom could generate interpersonal tension. It requires a high degree of personal maturity to cope with and to navigate clinical interactions. Her history suggests that she does not have the requisite maturity of personality to cope with the vicissitudes of clinical work. 1. Dr XY gave oral evidence before us and was cross-examined by Dr DYB. 2. At the commencement of his cross-examination, Dr XY said, having regard to the definition of impairment in the National Law, that he did not think on that particular day that Dr DYB was impaired. However, he qualified this answer by saying: A. You're sensible, you're articulate, you're balanced, but, historically, no. I think, historically, you're stably unstable. Therefore, I couldn't predict, I couldn't predict with any certainty that you could not have an impairment on an irregular basis, going forward. 1. In answer to a question posed by Dr DYB about why he found she was impaired, Dr XY elaborated as follows: A. Well, because on numerous occasions you've tried to kill yourself, which is an impairment of mind. On numerous occasions, you've been hospitalised and acted in an extraordinarily dysfunctional manner. On numerous occasions, you've had interactions with your superiors which have led to very dysfunctional outcomes [transcript 15 April 2019 p 52]. 1. Dr DYB directed questions to Dr XY as to whether, if a practitioner removed himself/herself from the workplace when unwell, that practitioner was impaired. Dr XY opined: A. Possibly, on the grounds that, if the impairment is episodic and relate to personality function, as I believe yours is, then it is more probable than not that in your professional life there will be situations which will trigger the same sort of decompensations that you've had in the past, and I think the best predictor of your future as an employee is your past history as an employee [transcript 15 April 2019 p 53]. 1. Dr XY responded to Dr DYB's statement that if she was sick she would not practise, explaining "I don't believe you can predict with any certainty when you'll be well and when you'll be unwell". 2. Dr DYB extensively cross-examined Dr XY about his opinion that she suffers a personality disorder. He explained: A. That's precisely my point. The important issue about what Dr AZ says is that the type of depression you have is atypical. If you look at the definition of "atypical depression", there's a component of a high degree of interpersonal sensitivity, okay which doesn't go away, even when depression goes away [transcript 15 April 2019 p 79]. 1. Dr XY, we would say very fairly, acknowledged Dr DYB's intellectual ability, and supported her desire to practise. He did not dispute, but rather affirmed, the possibility she suffered adverse reactions to a number of psychotropic drugs. In his answers, we found Dr XY appropriately sought to balance Dr DYB's skills and tenacious pursuance of her medical career with historical facts related to her diagnoses, including both physical and psychiatric and features of her communication style. The thrust of his evidence was that Dr DYB does fit the definition of impairment under the National Law because, although not impaired at the date he gave evidence, she is likely to decompensate in the future. Dr XY suggested in his reports that if Dr DYB remained stable for a period of two years he may change his view that she is impaired. Dr DYB's evidence and submissions 1. Dr DYB presented her voluminous documentary material in an exemplary manner. She also provided extensive written submissions and we afforded her the opportunity, one week after she had the benefit of hearing the Board's submissions, to make oral submissions to us. We accept that she is genuine in her desire to pursue her career as a practising doctor and to specialise in pharmacogenomics despite many hurdles she has and is likely to face in the future. 2. Dr DYB's position is summed up in her written submissions provided to the Tribunal on 11 April 2019. Under the heading "Key submission points" she states: Current Situation * I do not have, and have never had, an impairment as defined under the National Law. * The conditions currently restricting my registration are not necessary to protect the public. * The publication of my registration conditions is libel and constitutes defamation. * I hold medical registration however the restrictions are such that I am unable to engage in any practice, clinical or otherwise. * The restriction on my prescribing practices is clearly an ultra vires action of the Board. * The conditions imposed on my medical registration constitute direct discrimination as defined by the Disability Discrimination Act 1992. 1. Dr DYB submits, correctly, that the object and principles underpinning the National Law are the health and safety of the public. She submits: The issue is that they are asserting that the public requires protection from me because I have experienced certain health issues, not because those health issues have, or foreseeably will, impact on my clinical practice. The National Law is effectively a State Law; each State/Territory has its own version. The public should be protected from practitioners who pose a risk; whether that is because the practitioners choose to ignore relevant Codes of Conduct or evidence-based medicine, or because the practitioners are impacted by a health condition while practicing. The National Law is not there to facilitate discrimination and prejudice against certain cohorts. 1. At 2.2.5 of her submissions, Dr DYB sets out why she says it is not necessary for conditions to be imposed on her registration. 2. In her oral evidence before us, Dr DYB explained that her proposals for practice are that she undergo a physician training program and specialise in pharmacogenomics obtaining a double or triple fellowship. To achieve that aim, she proposed that she undertake PGY 2 training in a hospital. Her alternate plan is that she apply for, and undertake, general practice training if there are no conditions on her registration, but she said would be unable to apply for such training until mid-2020. She also indicated that she would be interested in taking a position at a government regulator relating to pharmaceuticals for one year. 3. Dr DYB relied on a chart, prepared by her, in which she sought to demonstrate the link between her behaviours and various drugs. She conceded in cross-examination that the suicide attempt by applying fentynal patches was not precipitated by an adverse drug reaction. 4. Dr DYB was asked whether she thought it relevant that the Tribunal should have been made aware of her mental health history in 2018. Dr DYB disputed that it had been relevant to do so. Dr DYB sought to rationalise her failure to update her material or to disclose her multiple hospital admissions in 2018 on the basis that no mandatory notification had been made by any doctor to the Board, and that she was entitled to privacy about her health conditions. 5. Dr DYB acknowledged that Dr AZ's treatment plan is that she should remain on agomelatine. However, she described this treatment plan as being for the foreseeable future, and she accepted that advice was subject to any adverse liver problem she may experience. 6. Dr DYB agreed she had stopped taking agomelatine on 26 September 2018. She indicated that she had done so in consultation with her then general practitioner. We note that no evidence was adduced from the general practitioner. The only evidence about the cessation of Dr DYB's therapeutic relationship with this general practitioner is a file note of her telephone call to Dr AZ's rooms in November 2018 when Dr DYB is noted as being distressed because her general practitioner is no longer prepared to treat her. This file note appears inconsistent with Dr DYB's assertion about her general practitioner recommending or supporting her cessation of agomelatine. It is also inconsistent with Dr DYB's email to Dr AZ. 7. When asked if she agreed she did not have good insight into her psychiatric illness in November 2018, Dr DYB said "I have better insight now". 8. Notwithstanding Dr DYB's evidence about her non-compliance with Dr AZ's prescription treatment plan that she would remain on agomelatine in July 2018, she asserted that she had removed herself from her government job when impaired. She denied that she blames matters external to herself for factors that are other than psychiatric. 9. Dr DYB acknowledged that she has not worked in clinical practice since 2014 but nevertheless was asking for unconditional registration. However, she sought to rely on her wide reading, her studies towards obtaining a Master's degree, and other continuing professional development activities as a sufficient safeguard to engage in direct patient care. 10. Dr DYB was questioned by Dr Diamond about her interpersonal difficulties during her past internships and later in the State where she subsequently became an RMO [transcript 17 April 2019 p 82, 84, 85]. Discussion and conclusions 1. It is convenient that at this point in our reasons we turn to the issues we earlier identified as being germane to our evaluative judgment and decision making in these appeals. 2. It is convenient we deal with the first two identified issues together. Does Dr DYB suffer from an impairment as defined in the National Law? If Dr DYB does suffer an impairment, what is the nature of that impairment? 1. As we have earlier noted, Dr DYB adamantly disputes that she suffers an impairment (as defined in the National Law). This is because, she says, there is no evidence that her conduct has ever caused harm to a patient. She asserts she does not present a risk to patients because she will not work while unwell. 2. It is useful at this point that we repeat the definition of impairment as found in s 5 of the National Law. It is in the following terms: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect— (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or 1. In considering this definition, it is important to have regard to well-established principles of statutory construction (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355; 153 ALR 490; 72 ALJR 841). Regard must be had to the words of the statute, their context and purpose. The definition requires that we determine first, whether the practitioner has a physical or mental impairment, disability or disorder. If we are satisfied that one or more of these conditions are established on the evidence before us, we must consider whether the condition/s detrimentally affects the practitioner's capacity to practise the profession, or if it is likely to do so. 2. Ms Richardson submitted that Dr DYB's position about impairment involves a fundamental misunderstanding of the concept of impairment under the National Law. 3. Ms Richardson submits that the first question which must be determined is "does the person have a disability". It is not a question of whether someone is well at a particular point in time. She further submits if a disability is established, it is a matter of determining if that disability is likely to detrimentally affect the person's capacity to practise. 4. It is submitted on behalf of the Board that, relying on Dr AZ's evidence of Dr DYB's diagnosis, the first question of whether Dr DYB suffers disability is established. It is further submitted that Dr AZ's evidence is that the disability Dr DYB's suffers will be recurrent. Thus, she submits we should find the very nature of Dr DYB's disorder is, even if cross-sectionally she might be relatively well on a particular day, likely to detrimentally affect her capacity to practise. As we will now explain, we accept each of the submissions made by Ms Richardson. 5. It was clear to us that Dr DYB was very focussed on the diagnosis made by various psychiatrists over her long mental health history, and that she was and is aggrieved by the diagnosis of the first psychiatrist who carried out an assessment for the Board in 2015 of borderline personality disorder. She is accepting of a diagnosis of autism, and seeks to attribute the majority of her mental health admissions as being the result of adverse drug reactions. 6. We do not consider it is necessary that we reach definitive findings about the nature of Dr DYB's mental health diagnoses particularly in terms of criteria in the DSM-5 (see Qasim v Health Care Complaints Commission [2015] NSWCA 282). However, we note the features described by Dr XY when referring to personality traits in the DSM-5 are not far removed from the features of the adjustment disorder in association with her Major Depression diagnosed by Dr DYB's own treating psychiatrist. Dr AZ's diagnosis, formed over approximately seven years of treatment, is not in doubt. It is his opinion that Dr DYB suffers high-functioning autism which has a marked impact upon her ability to interact with other people and she has a Major Depressive Disorder with atypical features including impulsiveness, marked agitation, impulsivity and elevated levels of suicidality. He was clear, as was Dr DE, that Dr DYB is likely to suffer relapses of her Major Depressive Disorder. 7. We commence by recording our finding that Dr DYB's submissions and interpretation of the National Law demonstrate what Dr XY described as her rigid or "black and white" thinking. We accept that may well be, as Dr DYB herself explains, because she is "wired" differently to other people. It also accords with the view expressed by the psychiatrist who assessed Dr DYB in 2018 for her employer's insurer. That psychiatrist described Dr DYB as "unique", and her presentation as not being in accord with the general community. 8. We agree with and accept Dr XY's opinions about a number of matters relevant to our determination that Dr DYB suffers a disability or disorder which is likely to impact on her capacity to practise medicine. In particular we find his opinion that Dr DYB is "stably unstable" more accurately reflects her history than Dr DYB's description of being well with periods of illness often attributed to adverse drug reactions or a propensity to experience adverse drug reactions. 9. We accept there is no evidence before us that, during her very limited periods of clinical practice when she was practising only in a hospital environment, Dr DYB ever caused harm to a patient. We note, however, that while she asserts she has insight into her illness and has not practised when ill, she concedes that was not the case in 2009. In her submissions to us, Dr DYB sought to distinguish practising when unwell, and practising when not very unwell during her residency in 2014. We were unable to accept that submission. The history of her having sufficient insight to her illness to judge it was appropriate for her to continue to practise does not sit comfortably with the facts relating to this period (suicide attempts with fentanyl patches in May 2014 but with a continuation of work until October 2014). We also take into account that Dr DYB's limited practice has all occurred in a hospital environment with varying degrees of supervision and not involved independent practice. 10. In weighing up risks and benefits associated with patient safety, we find that Dr DYB's insight into her illness, including the need to follow Dr AZ's treatment plan and take agomelatine, is of relatively recent origin. Although she was not practising in 2018, she continued work duties at a period when she was depressed and became engaged in conflict with certain staff of her employer. We see this as raising a real concern that if she ceases taking agomelatine, or becomes depressed, she may not have the necessary insight in a timely manner to withdraw from patient care, or continue her medication. 11. Our reasoning for that determination includes our acceptance of Dr XY's evidence, in particular, his evidence about Dr DYB's difficulties dealing with other doctors, particularly those in positions of seniority, and staff. Even if we discount Dr XY's evidence because of his limited contact with Dr DYB, we find that there is cogent evidence before us of repeated difficulties with work colleagues, particularly supervisors. In reaching this finding, we rely on Dr DYB's own evidence given in response to a question from Dr Diamond [transcript 17 April 2019 p 82, 84 and 85]. 12. Dr DYB has, in our view, attributed a narrow meaning to the capacity to practise medicine set out in s 5 of the National Law. In reaching our determination that she suffers an impairment that is likely to affect her capacity to practise medicine, we accept Dr XY's view that it is necessary for a medical practitioner to have a degree of robustness to meet patient demands, and that Dr DYB's interpersonal skills repertoire is likely to be inadequate to deal with difficult or demanding patients. 13. We are also conscious of the Board's Good Medical Practice: A Code of Conduct for Doctors and in particular Chapter 4 of that Code which provides as follows: 4.1 Introduction Good relationships with medical colleagues, nurses and other healthcare professionals strengthen the doctor–patient relationship and enhance patient care. 4.2 Respect for medical colleagues and other healthcare professionals Good patient care is enhanced when there is mutual respect and clear communication between all healthcare professionals involved in the care of the patient. Good medical practice involves: Communicating clearly, effectively, respectfully and promptly with other doctors and healthcare professionals caring for the patient. Acknowledging and respecting the contribution of all healthcare professionals involved in the care of the patient. Behaving professionally and courteously to colleagues and other practitioners including when using social media. 1. While Dr XY agreed, in response to a question posed by Dr DYB in cross-examination, that it may have been discriminatory if the palliative care specialist restricted Dr DYB's ability to see patients and their families because of her autism diagnosis, Dr DYB's own evidence is that the restriction was not absolute. The senior consultant restricted Dr DYB, unless she was accompanied by a Registrar, from seeing such patients. It is Dr DYB's perception she was subject to discriminatory behaviour rather than a focus on what the consultant, in the circumstances, chose to implement to provide the best patient care. We find this is the nuanced type of decision making that Dr DYB's diagnosis makes it difficult for her to comprehend. Does the nature of Dr DYB's impairment mean she cannot safely engage in direct or indirect clinical care? 1. Dr DYB's position is that she has insight into her depressive order. Although she has only consulted with Dr DE on two occasions, we are satisfied that she has a very high level of knowledge about her diagnosis of autism. We find she understands and accepts that her communication style can cause misunderstandings. She is also very cognisant of her special workplace needs including the necessity for a quiet environment, appropriate lighting and the presence of her assistance dog. We find she has made considerable efforts to pursue qualifications in pharmacogenomics, and her determination to succeed in this area of medicine is most commendable. We accept she has engaged in far more continuing professional development than the mandatory requirements. 2. We find it is likely that the area of work in which she has expressed interest for approximately 12 months, in a government department involving the regulation of pharmaceuticals, is one to which she is well suited, provided she remains psychiatrically stable and physically well. This finding supports a continuation of her general registration with conditions rather than cancellation of her registration. 3. Dr AZ is firm in his view that, since February 2018, Dr DYB has had insight into her mental health issues and will be compliant in taking agomelatine indefinitely. We cannot, however, ignore that Dr DYB's insight into her need to continuously take this medication and her acceptance of the likelihood of relapse is of relatively recent origin against a long and complex history of both physical and psychiatric illness. We have taken into account and do give weight to the fact that some of Dr DYB's mental illness and associated suicide attempts were triggered by medications, particularly those administered when she was under the age of 25. But other episodes, particularly in late 2018, were not a result of adverse drug reactions. 4. While the submissions on behalf of the Board did not advocate for cancellation of Dr DYB's registration, it was clear that significant emphasis was placed on events occurring in 2018 involving the cessation of agomelatine by Dr DYB, strongly suggesting that such a course was open to us. 5. We are satisfied that conditions can be crafted which will minimise risk to the public if Dr DYB is not engaged in direct or indirect patient care, for example, in the role she envisages with a government department. We accept her submission that, while in such a position she would not see patients face to face, decisions she may be called upon to make could still affect patient safety. We find that in such a work environment the risk if any to patients would be minimal, and that Dr DYB should be permitted to engage in any position where she does not engage in direct or indirect patient care. In summary, her registration could be achieved by imposition of a condition that she engage only in positions without direct or indirect patient care, such as with a government department or a university teaching position approved by the Board. 6. We turn now to the more difficult question of whether conditions can or should be imposed which would permit Dr DYB to engage in direct patient care. First, we accept there is no evidence at all before us that Dr DYB, while practising, has ever engaged in conduct which has been adverse to a patient's care. However, that finding must be tempered by a number of caveats. First, Dr DYB has only ever practised in a hospital setting with very limited autonomy. Secondly, her period of practice from graduation was limited and disjointed because of periods of both physical and mental illness. Thirdly, there is no dispute she has not practised since 2014. 7. We note Dr XY indicated that he would like to see a period of two years' stability before Dr DYB engages in direct patient care. By contrast, Dr AZ opined that Dr DYB should be able to practise without conditions. 8. We are unable to accept the position advocated by Dr AZ on behalf of Dr DYB. While we accept that he has had a long term relationship with Dr DYB as her treating specialist, and with no criticism of his treatment, the reality is that he is in a different city to Dr DYB, his advice in respect of taking agomelatine has not always been followed by Dr DYB, and she has had significant periods of instability while under his care. Further, we find it of concern that Dr DYB changed general practitioners in about November 2018 when it appears her then long term general practitioner ceased treating her. We find her new general practitioner Dr FG's initial opinion that no conditions should be placed on Dr DYB's registration was modified in the course of his responses to cross-examination. We find the concessions he made were appropriate and reflected a patient centred approach in the sense of safety of the members of the general public. We take into account in forming his initial position that Dr FG has known Dr DYB for a relatively short duration in which he has not had the benefit of a comprehensive background of her illnesses and behaviours when unwell. This is not to be seen as a criticism of Dr FG who has had only a relative short period of time as Dr DYB's treating general practitioner to absorb her long and complex medical history. We note Dr DYB asserts Dr FG did not receive all of her clinical records from her former general practitioner. 9. Dr DE was quite clear in his oral evidence that while he saw Dr DYB making a valuable contribution to patients and medicine in the area of pharmacogenomics, he did not advocate that she should immediately be granted unlimited registration. 10. Ultimately, as we will now further explain, we have determined that Dr DYB should be able to engage in direct patient care without compromising the health and safety of patients if her registration is subject to very specific conditions. What conditions are necessary to ensure the health and safety of the public? 1. We have already indicated that if Dr DYB is engaged in non-direct patient care, her registration should be limited to a condition which requires her to obtain prior Board approval to any employment in which she wishes to engage. We envisage that this approval would be limited to the Board satisfying itself that the proposed position does not involve patient care. Such approval should be straightforward and not delayed so as to impede any employment opportunity offered to Dr DYB. 2. As we have already noted, Dr DYB has not practised in direct patient care since 2014, a period of five years. Her experience prior to surrendering her registration was limited and disjointed, occurring in a hospital setting and with supervision reports being provided to the Board. As Dr DYB points out in her submissions, her registration from student days has always been subject to conditions. Dr DYB's plans as relayed by her to us are that she wishes to pursue further studies with a view to obtaining post graduate qualifications as a physician with a speciality in pharmacogenomics. That proposal requires her to complete her second year of post graduate training. 3. We find that, to ensure the health and safety of the public, if Dr DYB wishes to practise in direct patient care, she should be limited to such care by undertaking post graduate training in a hospital approved by the Board and subject to Level 1 supervision in accordance with the AHPRA policy. 4. In reaching this conclusion, we are cognisant that the evidence both for and against such a condition is finely balanced. The opportunity afforded by such a condition is that Dr DYB will need to address carefully her physical health conditions, exercise care and restraint in her communication with other professionals particularly her superiors, and scrupulously follow Dr AZ's treatment regime by consistently taking agomelatine. 5. Because of the relatively recent insight demonstrated by Dr DYB, her complex history and lack of direct patient care, we are satisfied that affording her the opportunity to undertake a PGY 2 year training must be subject to the constraints of Level 1 supervision. Such supervision will protect patients in the event Dr DYB has a relapse in her mental or physical health. Such a condition addresses concerns expressed by Dr DE and Dr FG. Further, it affords Dr DYB the opportunity to demonstrate over the course of a year the sort of stability Dr XY opines could support unconditional registration. It is an important first step which will enable Dr DYB to pursue her specialist career aspirations in pharmacogenomics. 6. We do not consider, at this point in time because of Dr DYB's limited experience, we could craft conditions which would adequately protect the health and safety of the public if she sought employment as a general practitioner and sought accreditation by the Royal College of General Practitioners. That situation may be one to be revisited after she completes her PGY 2 training, or if she demonstrates a significant period of stability in a government job. We note Dr DYB's evidence that to be eligible for the training program, unconditional registration is a prerequisite. 7. We are conscious that the Board removed the condition which restricted Dr DYB's ability to prescribe Schedule 8 and Schedule 4 drugs but replaced it with a new condition. 8. While we had concerns on hearing Dr DYB's evidence about stockpiling drugs including fentanyl patches, having multiple prescriptions pads and writing a lethal prescription on paper without a prescription pad, there is no evidence that Dr DYB has ever wrongly or inappropriately prescribed for a patient. Rather, in the hospital in which she was an RMO, her specialised pharmacological knowledge appears to have been directed to patient safety. In these circumstances, we see no need for a restriction on her prescribing rights, if she is engaged in supervised practice in a hospital, as her prescribing will be subject to the supervision condition. It follows, however, if she is engaged in any position not involving direct or indirect patient care, her prescribing should be restricted because such prescribing would not be subject to oversight. 9. We have also considered whether any health conditions are necessary. It is not in dispute that Dr DYB is prepared to and does fly interstate to see Dr AZ. She has established a proper relationship with two general practitioners in her local area. While it is likely to be of benefit for Dr DYB to once again consult with a psychologist to enhance her communication style, and to obtain support to deal with workplace stresses, we do not find it is necessary to impose such a condition. Although Dr DYB does seek appropriate medical treatment voluntarily, we are conscious that she has relatively recently changed her general practitioner without explanation. We also note Dr AZ's earlier recommendation that Dr DYB should be required to have an ongoing relationship with a psychiatrist. Given Dr AZ's evidence that Dr DYB's insight into her diagnoses and the need for her to remain on agomelatine is of relatively short duration, we find health conditions should be imposed on her registration. If it is appropriate to impose conditions, what review period should be imposed? 1. We are satisfied in determining these appeals that it is necessary to provide a review mechanism on the conditions we propose, as provided in s 83(2) of the National Law. If Dr DYB satisfactorily completes her PGY 2 year under supervision, a supervision condition may no longer be necessary or appropriate. If Dr DYB has taken up a government position for 12 months, and demonstrated stability in such a position, the conditions will likely need to be reviewed, particularly if at that time she wishes to transition to direct patient care. 2. We find that at the completion of a PGY 2 year with supervision, these conditions should be reviewed, or in the event that Dr DYB does not proceed with her intended career path by completing her PGY 2 year, the conditions on her registration should be reviewed by the Board in 18 months, whichever event first occurs. Recency of practice issues, if any 1. In the course of her submissions, Ms Richardson explained that the Board did not raise any issue of recency of practice, adopting as correct the reasoning on this point in McMahon v Nursing and Midwifery Board of Australia [2013] NSWNMT 4. In her oral submissions, Dr DYB explained that by 30 September 2019, the Board requirements are that she must have engaged in four weeks practice, but her research indicated that the Board has a discretion to waive that requirement [transcript 26 July 2019 p 46]. Dr DYB pointed out that the conditions on her registration have precluded her from meeting the requirement. 2. We find because of the delays caused by the adjournment of these appeals, and the delay in availability of the transcript, should it be necessary to rely on a discretionary provision to permit Dr DYB to engage in practice in direct patient care subject to the conditions we propose to impose on her registration, we would exercise that discretion. In reaching this finding, we have given due regard to the Board's position as explained by Ms Richardson. Submissions regarding Commonwealth Legislation and reasonable adjustments and s 83 of the National Law 1. Dr DYB made a number of submissions directed to provisions of laws of the Federal Parliament including the Disability Discrimination Act 1992 (Cth) and the Fair Work Act 2009 (Cth), and submitted we are required to consider "reasonable adjustments" to take into account her disabilities. 2. We reject these submissions. We note that s 13(2) of the Disability Discrimination Act does not apply to exclude State laws which are not inconsistent with the Federal Act. We reject the submission that we are required to make "reasonable adjustments" to take into account Dr DYB's disability. As Ms Richardson submits, our task is the application of administrative law under the provisions of the National Law (a State law). A fundamental part of that task is to make findings as to whether or not a practitioner has a disability which does or is likely to affect that person's capacity to practise. That is not to say that a Tribunal, if appropriate to do so, cannot craft conditions which satisfy the requirements of s 83 of the National Law. This Tribunal, which is not a court of a State, does not, as Dr DYB appears to submit, have jurisdiction to determine a question arising under a Federal law (see Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15; Qantas Airways Ltd v Lustig [2015] FCA 253). 3. Dr DYB submitted that the use of the terms "desirable" or "necessary" in s 83 to categorise appropriate conditions is confusing or ambiguous. The gist of her submission was that conditions have to be necessary and the word "desirable" is otiose and has no work to do. In considering this submission, we find it is useful to again set out s 83(1). It provides as follows: (1) If a National Board decides to register a person in a health profession for which the Board is established, the registration is subject to any condition the Board considers necessary or desirable in the circumstances. 1. Ms Richardson submits that there is no inconsistency or ambiguity as the words are distinct and separate. We accept that submission. The drafting of the section makes it plain that conditions may be imposed if the Board (or in this case, the Tribunal) finds it "necessary" to do so in order to enable a practitioner, who would otherwise be ineligible, to achieve registration, or "desirable" to do so. Appeal No. 2018/00035995, 2018/00044125, 2018/00192718 and appeal against conditions imposed on 21 August 2018 1. We have in the appendix to these reasons set out each set of conditions imposed on the practitioner's registration. 2. We do not find it is necessary to consider each condition imposed as to do so would involve repetition of our core findings. We have arrived at this decision noting that our findings in respect of the current conditions are relevant to the earlier conditions. If we were considering today the conditions imposed by the Board on various earlier dates, we would allow appeals against those decisions and in lieu substitute different conditions under s 175C(1)(c). Non-publication order 1. At the commencement of this hearing, Ms Richardson on behalf of the Board sought that we make an interim non-publication order in respect of Dr DYB's name. This interim order was sought on the basis that now, or in the future, it would be inappropriate for any member of the public to be able to identify Dr DYB and have access to the extensive personal and often tragic history of Dr DYB's health. Dr DYB opposed the making of the order on both an interim and final basis. 2. The Board seek the order under the provisions of s 64 of the Civil and Administrative Tribunal Act 2013 (NSW). The Board submit reliance may be placed on this provision, as the National Law does not cover the field nor is the provision inconsistent with Cl 7 of Schedule 5D of the National Law (see Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31). Section 64 provides as follows: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. 1. The Board's application also deals with Rule 42 of the Civil and Administrative Tribunal Rules 2014 (NSW). That rule is in the following terms: 42 Inspection of documents in Registry (1) Subject to the Act and this rule, a party to proceedings is, on payment of the applicable fee (if any), entitled to inspect documents in the Registry relating to the proceedings. Note. This rule also has effect subject to any relevant enabling legislation—see rule 4 (3). (2) Subject to the Act and this rule, a registrar may, on payment of the applicable fee (if any), permit a person who is not a party to proceedings in the Tribunal to inspect public access documents in the Registry relating to proceedings in the Tribunal that are finally determined. (3) It is sufficient compliance with subrule (1) or (2) if the party or person is given, on payment of the applicable fee (if any), a copy of the document instead of access to the original document. (4) A registrar may impose such conditions as the registrar considers appropriate in relation to the granting of access under this rule to a public access document (or a copy of such a document) by a person who is not a party to proceedings in the Tribunal. (5) There is no entitlement under this rule to give or be given access to a document in the Registry (or a copy of such a document) if: (a) a claim for privilege has been made with respect to the document but not decided by the Tribunal, or (b) the Tribunal has decided that the document contains matter that is privileged, or (c) the Tribunal has ordered that the whole or part of the document not be disclosed, or (d) the disclosure of the whole or part of the document to the person is otherwise prohibited by or under the Act or any other legislation or law, or (e) the document is or includes a note or working paper produced by or for a member in relation to any proceedings. Note. See, in particular, Division 6 of Part 4 of the Act, which contains provisions concerning the disclosure of information for the purposes of the Act and also section 67 of the Administrative Decisions Review Act 1997. (6) A registrar may permit a person who would otherwise have no entitlement to be given access to a document (or a copy of a document) because of subrule (5) to inspect (or be given a copy of) parts of the document that do not contain or include the privileged material or other material which may not to be disclosed. (7) For the purposes of this rule, proceedings in the Tribunal are finally determined if: (a) the Tribunal has completed all the processes necessary to decide the substantial merits of the proceedings (including, where required, the giving of reasons for the decision and the determination of costs), and (b) no further internal appeal or appeal to a court in respect of the proceedings is available because: (i) legislation does not provide for such an appeal against decisions in the proceedings, or (ii) the period for lodging such an appeal or an application for leave to appeal in respect of the proceedings has expired (ignoring any period that may be available by way of extension of time to appeal or seek leave to appeal), or (iii) an appeal lodged in respect of the proceedings has been determined. (8) In this rule: public access document means any of the following: (a) an originating document or reply, (b) a statement, affidavit or document admitted into evidence in proceedings held in public, (c) a transcript (if available) of proceedings held in public, (d) a record of any order made or other decision given in proceedings, (e) a record of the reasons given for a decision made in proceedings. 1. The principles of open justice are well known and understood, and unless there are special or exceptional circumstances, decisions of this Tribunal in professional disciplinary matters and other applications under the National Law are available to the public on NSW Caselaw and Tribunal hearings are open to the public (see Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 and the authorities cited therein – Health Care Complaints Commission v CSM [2018] NSWSC 902; Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135; Health Care Complaints Commission v Vo [2014] NSWCATOD 127). 2. Dr DYB says she does not wish to maintain privacy in respect of her medical history. As noted at the commencement of these reasons, Dr DYB referred to her case being a "test case" for practitioners suffering mental illness. During the course of her submissions, Dr DYB qualified her opposition to the non-publication order, or to the possibility that, on finalisation of the matter, a third party may obtain access to the public access documents. She sought that we would cover in any order the name or evidence of a particular practitioner, and other information relevant to her employment. 3. We have earlier set out Dr AZ's opinion that it would be appropriate to make the order proposed by the Board. We agree with the opinion expressed by Dr AZ. We stress that each appeal case which comes before the Tribunal is unique in its facts, and its determination involves an evaluative assessment by a specialist tribunal of those facts. The blanket suggestion that any practitioner who has mental health issues of any type should not seek treatment for those conditions because he or she will be precluded by the Board from practising is not a principle of general application and is inconsistent with the way impairment is treated under the National Law. Many practitioners with a disability or disorder are, with appropriate medical support, able to practise without affecting the health or safety of the public. The principles relevant to this appeal will be available as an educative tool for the profession and the public, and providing details of the practitioner's medical history to elucidate the principles does not require publication of Dr DYB's name. 4. We are further fortified in making this non-publication order having regard to the fact that, should it be necessary or relevant to do so, it may be the subject of a later application for variation or discharge. Costs 1. At the conclusion of the hearing, Ms Richardson, on behalf of the Board, requested that issues relating to costs of these proceedings should be dealt with by way of written submissions. Dr DYB did not oppose that course. Accordingly, we have provided in our orders a timetable for the provision of written submissions on costs if costs are sought by either party. We think it useful to direct Dr DYB's attention to the recent decision of the High Court in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 which re-affirms the position that a self-represented party is not entitled to an order in his or her favour for legal costs, as distinct from disbursements, but which emphasises the purpose of a costs order, being to compensate a successful party for expenditure incurred. Orders 1. We make the following orders: 1. The decision of the Medical Board of Australia (the Board) dated 30 October 2018 is set aside and the following decision is substituted in lieu: Dr DYB (the practitioner) is granted general registration as a medical practitioner, subject to the following conditions: 1. If she is engaged in direct or indirect clinical patient contact: 1. the practitioner is to work in a hospital approved by the Board; 2. the practitioner is to work as a Year 2 post graduate medical officer; 3. the practitioner's practice is, at all times, to be supervised at Level 1 supervision in accordance with the Australian Health Practitioner Regulation Agency policy; 4. for the purposes of Order 1(a)(i), the practitioner must obtain the prior approval of the Board to her employment in a hospital nominated by her; 5. the practitioner must obtain the prior approval of the Board of any proposed supervisor/s and shall not practise until the supervisor/s has been approved; 6. in the event the practitioner's proposed supervisor/s is/are unable to continue supervision for any reason, then the practitioner must nominate a substitute supervisor or supervisors to the Board and must not engage in direct or indirect clinical care until a substitute supervisor/s is/are approved by the Board; 7. the practitioner shall authorise the Board to provide a copy of the reasons for decision dated 18 October 2019 to any supervisor/s or substitute supervisor/s of the practitioner; and 8. the practitioner must authorise any supervisor/s appointed under these orders to notify the Board immediately if there are any concerns in relation to the practitioner's compliance with these conditions or if her health or clinical performance may endanger the safety of the public. 1. If she is not engaged in direct or indirect clinical care as provided in Order 1(a)(i)-(viii) of these Orders, she must only use her professional knowledge to practise in any role which does not require direct or indirect clinical patient contact (including the prescribing or supply of any substance falling in the Standard for the Uniform Scheduling of Medicines and Poisons and including supervision of other practitioners engaged in direct or indirect clinical contact), in management, administration, non-clinical education, non-clinical research, advisory, regulatory or policy development roles; 2. Prior to engaging in any position as provided in Order 1(b), the practitioner must first obtain approval from the Board. 1. The practitioner must undertake treatment with a general practitioner and a psychiatrist (the treating practitioners) and attend at a frequency determined by the treating practitioners. 2. Within one month of the date of these Orders, the practitioner must provide the Board with the name and contact details of the treating practitioners. The treating practitioners must not be a relative, friend, or professional colleague of the practitioner or in a contractual or financial relationship with the practitioner. 3. Within one month of the date of these Orders, the practitioner must provide evidence to the Board of written confirmation from the treating practitioners that they have: 1. sighted a copy of these orders; 2. agreed to notify the Board of any material change in health status which may affect the practitioner's fitness to practise; and 3. agreed to provide the Board a report prior to the review date as set out in Order 6 of these orders. 1. In the event the practitioner changes her treating general practitioner and/or psychiatrist, she must, within three days of her first consultation with her new treating practitioner, provide the Board with the name and contact details of any new treating practitioner(s) together with written confirmation from the new practitioner(s) in the same terms as set out in Order 4 of these orders. "Treating practitioners" does not include any other health professionals (including that the practitioner attends for emergency and after hours treatment). 2. The conditions imposed on the practitioner's registration shall be reviewed by the Board eighteen (18) months from the date of these Orders, or on the completion of the practitioner's Year 2 post graduate employment, whichever event first occurs. 3. Pursuant to s 64(1)(a) and (4) of the Civil and Administrative Tribunal Act 2013 (NSW) that the applicant be referred to by the pseudonym Dr DYB. 4. That no citation or hyperlink to the decision and reasons of this Tribunal be included in the entry for the practitioner in the National Register, the Medical Board of Australia's webpage, the webpage of the Australian Health Practitioner Regulation Agency or elsewhere. 5. Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) and until further order, there shall be no publication or broadcast of any reports of these proceedings in the Tribunal unless the practitioner is de-identified in accordance with Order 7. 6. Pursuant to r 42(5)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) and until further order, there shall be no third-party access to any documents held by the Registry in relation to these proceedings, including but not limited to, evidence, transcripts of proceedings, applications and written submissions that refer to the practitioner. 7. Notwithstanding Orders 7-10, there may be disclosure or publication of any of the matters referred to in those orders as follows: 1. where required or permitted by a condition imposed or order made by the Tribunal; 2. in the circumstances set out in s 216(2) of the Health Practitioner Regulation National Law (as enacted in each State and/or Territory); 3. in the circumstances set out in ss 219-221 of the Health Practitioner Regulation National Law (as enacted in each State and Territory); and/or 4. where required to be published pursuant to s 225(f) or (k) (as enacted in each State and/or Territory) (subject to the operation of s 226). 1. The practitioner is to file and serve written submissions in respect of the costs of the appeals on or before 15 November 2019. 2. The Board is to file and serve written submissions in respect of costs on or before 6 December 2019. 3. The practitioner is to file and serve written submissions in reply, if any, on or before 20 December 2019. Appendix A First conditions – 30 August 2017 Limitations on practice 1. The Practitioner must not practise in any role requiring direct or indirect clinical patient contact (including supervision of other practitioners engaged in direct or indirect clinical contact). The Practitioner may only use her professional knowledge to practise in management, administration, non-clinical education, non-clinical research, advisory, regulatory or policy development roles. 2. Within 28 day of the notice of imposition of these conditions, the Practitioner must provide to AHPRA, on the approved form (HP7), acknowledgement that AHPRA may: a. Seek reports from the Employer (the senior person) at each place of practice on at least a three (3) monthly basis or as otherwise required. 3. At least 21 days prior to commencing practise the Practitioner must provide to AHPRA for approval by the Board, the name and contact details of the proposed employer, a job offer and position description, that includes the Practitioner's direct reports, from the proposed employer. 4. At least 21 days prior to commencing practise the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each a current place of practice. In providing this form, the practitioner acknowledges that: a. AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioners registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and b. The Practitioner will be required to provide the same form: i. within seven days of the commencement of practice at each and every subsequent place of practice, and ii. within seven days of each and every notice of any subsequent alteration of these conditions. 5. Prior to commencing practise the Practitioner must provide to AHPRA, on the approved form (HPS7), acknowledgement from the senior person at each place of practise that they have seen a copy of the conditions on the Practitioner's registration and they are aware AHPRA will seek performance reports from them every three (3) months. 6. The Practitioner may practise only in positions and places of practice approved by the Board. For the purposes of this condition, 'practise' is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a Medical in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a Medical in a direct non clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the Medical industry. Prohibition on access to medication 7. The Practitioner must not prescribe / supply / administer / handle / dispense / check (hereafter referred to as access) including as emergency treatment supplies or doctor's bag stock, any substance listed in Schedule(s) Schedule 4 and Schedule 8 medication of the Standard for the Uniform Scheduling of Medicines and Poisons (the SUSMP) as amended from time to time and as published at https://www.tga.gov.au/publication/poisons-standard-susmp and/or pharmaceutical items containing any active ingredient listed within Schedule 4 and Schedule 8 medication of the SUSMP. 8. At least 21 days prior to commencing practise the Practitioner must provide to AHPRA a. Acknowledgement, on the approved form (HP1), that for the purposes of monitoring compliance with the condition restricting access to medication, AHPRA may contact Medicare and/or drugs and poisons regulatory authorities in relevant states or territories. Attend treating practitioner(s) 9. The Practitioner must undertake treatment with a General practitioner (the treating practitioner) and attend at a frequency determined by the treating practitioner. 10. Within one (1) month of receipt of the notice of the imposition of these conditions, the Practitioner must provide the Board with the name and contact details of the treating practitioner. The treating practitioner must not be a relative, friend, or professional colleague of the practitioner or in a contractual or financial relationship with the Practitioner. 11. Within 1 month of the notice of the imposition of these conditions, the Practitioner must provide the Board with written confirmation from the treating practitioner that they have: a. Sighted a copy of these conditions; b. Agreed to notify the Board of any material change in health status which may affect the Practitioner's fitness to practise and of any period where the treating practitioner will be absent for any period of time requiring transfer of the care of the Practitioner to another treating practitioner; and c. Agreed to provide the Board reports at the nominated timeframes. These reports are to address the Practitioner's attendance at treatment, compliance with treatment directions, current health status and any other matters, which may affect the Practitioner's fitness to practise. 12. The Practitioner must submit treating practitioner reports not later than 2 weeks after the nominated timeframes. The nominated timeframes are reports at three (3), six (6) and 12 months following commencement of practice. 13. Within three days of the first consultation, the Practitioner must provide the name(s) and contact details of any new treating practitioner(s), together with written confirmation from the new practitioner(s) in the same terms as in conditions 10, 11 and 12. 14. All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense. Second conditions – 17 January 2018 Limitations on practice 1) The Practitioner must not practise in any role requiring direct or indirect clinical patient contact (including supervision of other practitioners engaged in direct or indirect clinical contact). The Practitioner may only use her professional knowledge to practise in management, administration, non-clinical education, non-clinical research, advisory, regulatory or policy development roles. 2) Within 28 day of the notice of imposition of these conditions, the Practitioner must provide to AHPRA, on the approved form (HP7), acknowledgement that AHPRA may: a) Seek reports from the Employer (the senior person) at each place of practice on at least a three (3) monthly basis or as otherwise required. 3) At least 21 days prior to commencing practise the Practitioner must provide to AHPRA for approval by the Board, the name and contact details of the proposed employer, a job offer and position description, that includes the Practitioner's direct reports, from the proposed employer. 4) At least 21 days prior to commencing practise the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each a current place of practice. In providing this form, the practitioner acknowledges that: a) AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioners registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and b) The Practitioner will be required to provide the same form: i) within seven days of the commencement of practice at each and every subsequent place of practice, and ii) within seven days of each and every notice of any subsequent alteration of these conditions. 5) Prior to commencing practise the Practitioner must provide to AHPRA, on the approved form (HPS7), acknowledgement from the senior person at each place of practise that they have seen a copy of the conditions on the Practitioner's registration and they are aware AHPRA will seek performance reports from them every three (3) months. 6) The Practitioner may practise only in positions and places of practice approved by the Board. For the purposes of this condition, 'practise' is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a Medical in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a Medical in a direct non clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the Medical industry. Prohibition on access to medication 7) The Practitioner must not prescribe / supply / administer / handle / dispense / check (hereafter referred to as access) including as emergency treatment supplies or doctor's bag stock, any substance listed in Schedule(s) Schedule 4 and Schedule 8 medication of the Standard for the Uniform Scheduling of Medicines and Poisons (the SUSMP) as amended from time to time and as published at https://www.tga.gov.au/publication/poisons-standard-susmp and/or pharmaceutical items containing any active ingredient listed within Schedule 4 and Schedule 8 medication of the SUSMP. 8) At least 21 days prior to commencing practise the Practitioner must provide to AHPRA a) Acknowledgement, on the approved form (HP1), that for the purposes of monitoring compliance with the condition restricting access to medication, AHPRA may contact Medicare and/or drugs and poisons regulatory authorities in relevant states or territories. Attend treating practitioner(s) 9) The Practitioner must undertake treatment with a General practitioner (the treating practitioner) and attend at a frequency determined by the treating practitioner. 10) Within one (1) month of receipt of the notice of the imposition of these conditions, the Practitioner must provide the Board with the name and contact details of the treating practitioner. The treating practitioner must not be a relative, friend, or professional colleague of the practitioner or in a contractual or financial relationship with the Practitioner. 11) Within 1 month of the notice of the imposition of these conditions, the Practitioner must provide the Board with written confirmation from the treating practitioner that they have: a) Sighted a copy of these conditions; b) Agreed to notify the Board of any material change in health status which may affect the Practitioner's fitness to practise and of any period where the treating practitioner will be absent for any period of time requiring transfer of the care of the Practitioner to another treating practitioner; and c) Agreed to provide the Board reports at the nominated timeframes. These reports are to address the Practitioner's attendance at treatment, compliance with treatment directions, current health status and any other matters, which may affect the Practitioner's fitness to practise. 12) The Practitioner must submit treating practitioner reports not later than 2 weeks after the nominated timeframes. The nominated timeframes are reports at three (3), six (6) and 12 months following commencement of practice. 13) Within three days of the first consultation, the Practitioner must provide the name(s) and contact details of any new treating practitioner(s), together with written confirmation from the new practitioner(s) in the same terms as in conditions 10, 11 and 12. 14) All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense. Third conditions – 1 February 2018 Limitations on practice 1) The Practitioner must not practise as a medical practitioner in any role requiring direct or indirect clinical patient contact (including supervision of other practitioners engaged in direct or indirect clinical contact). The Practitioner may only use her professional knowledge to practise as a medical practitioner in management, administration, non-clinical education, non­clinical research, advisory, regulatory or policy development roles. 2) Prior to commencing practise the Practitioner must provide to AHPRA for approval by the Board, the name and contact details of the proposed employer, a job offer and position description, that includes the Practitioner's direct reports, from the proposed employer. 3) Within 14 days of Board approval of employment arrangement(s) the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services,, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that: a) AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioners registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and b) The Practitioner will be required to provide the same form: i) within seven days of the commencement of practice at each and every subsequent place of practice, and ii) within seven days of each and every notice of any subsequent alteration of these conditions. 4) Prior to commencing practise the Practitioner must provide to AHPRA, on the approved form (HPS7), acknowledgement from the senior person at each place of practise that they have seen a copy of the conditions on the Practitioner's registration and they are aware AHPRA will seek performance reports from them every three (3) months. Prohibition on access to medication 5) The Practitioner must not prescribe, supply, administer or handle (hereafter referred to as access), including as emergency treatment supplies or doctor's bag stock, any substance listed in Schedule(s) Four (4) and Eight(8) of the Standard for the Uniform Scheduling of Medicines and Poisons (the SUSMP) as amended from time to time and as published at https://www.tga.gov.au/publication/poisons-standard-susmp other than in the following circumstances: a) Where the substances have been prescribed by a nominated treating practitioner and are for the use of the Practitioner or an assistance animal. For the purposes of this condition (5) the treating practitioner must be a registered health practitioner or registered veterinarian and must not be a relative, friend, professional colleague or in a contractual or financial relationship with the Practitioner. 6) Within 28 days of the notice of imposition of these conditions, the Practitioner must provide to AHPRA: a) Acknowledgement, on the approved form (HP1), that for the purposes of monitoring compliance with the conditions on their registration restricting access to medications, AHPRA may contact Medicare and/or drugs and poisons regulatory authorities in relevant states or territories. b) Declaration of current substances for the practitioner and assistance animal on the approved (HPF6) form c) The contact details, on the approved form (HPF3), of all treating practitioners. d) Acknowledgement, on the approved form (HPF3), from the Practitioner that AHPRA may seek reports from the treating practitioner(s) on a quarterly basis for the purposes of monitoring compliance with this condition. e) Confirmation, on the approved form (HPNA3), from the treating practitioner(s) that they have seen a copy of the conditions on the Practitioner's registration and are aware AHPRA may contact them to seek reports. Attend treating practitioners 7) The Practitioner must undertake treatment with a General practitioner (the treating practitioner) and attend at a frequency determined by the treating practitioner. 8) Within one (1) month of receipt of the notice of the imposition of these conditions, the Practitioner must provide the Board with the name and contact details of the treating practitioner. The treating practitioner must not be a relative, friend, or professional colleague of the practitioner or in a contractual or financial relationship with the Practitioner. 9) Within 1 month of the notice of the imposition of these conditions, the Practitioner must provide the Board with written confirmation from the treating practitioner that they have: a) Sighted a copy of these conditions; b) Agreed to notify the Board of any material change in health status which may affect the Practitioner's fitness to practise and of any period where the treating practitioner will be absent for any period of time requiring transfer of the care of the Practitioner to another treating practitioner; and c) Agreed to provide the Board reports at the nominated timeframes. These reports are to address the Practitioner's attendance at treatment, compliance with treatment directions, current health status and any other matters, which may affect the Practitioner's fitness to practise. 10) The Practitioner must submit treating practitioner reports not later than 2 weeks after the nominated timeframes. The nominated timeframes are reports at three (3), six (6) and 12 months following commencement of practice. 11) Within three days of the first consultation, the Practitioner must provide the name(s) and contact details of any new treating practitioners), together with written confirmation from the new practitioner(s) in the same terms as in conditions 10, 11 and 12. 12) All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense Fourth conditions – 28 March 2018 Limitations on practice 1) The Practitioner must not practise as a medical practitioner in any role requiring direct or indirect clinical patient contact (including supervision of other practitioners engaged in direct or indirect clinical contact). The Practitioner may only use her professional knowledge to practise as a medical practitioner in management, administration, non-clinical education, non-clinical research, advisory, regulatory or policy development roles. 2) Prior to commencing practice, the Practitioner must provide to AHPRA for approval by the Board, the name and contact details of the proposed employer, a job offer and position description, that includes the Practitioner's direct reports, from the proposed employer. 3) Within 14 days of Board approval of employment arrangements), the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that: a) AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration, or confirm that the senior person has received a copy of the conditions from the Practitioner, and b) The Practitioner will be required to provide the same form: i) within seven days of the commencement of practice at each and every subsequent place of practice, and ii) within seven days of each and every notice of any subsequent alteration of these conditions. 4) Prior to commencing practice, the Practitioner must provide to AHPRA, on the approved form (HPS7), acknowledgement from the senior person at each place of practice that they have seen a copy of the conditions on the Practitioner's registration and they are aware AHPRA will seek performance reports from them every three (3) months. Fifth / Current conditions – 21 November 2018 Limitations on practice 1) The Practitioner must not practise as a medical practitioner in any role requiring direct or indirect clinical patient contact (including the prescribing or supply of any substance falling in the Standard for the Uniform Scheduling of Medicines and Poisons and including supervision of other practitioners engaged in direct or indirect clinical contact). The Practitioner may only use her professional knowledge to practise as a medical practitioner in management, administration, non-clinical education, non-clinical research, advisory, regulatory or policy development roles. 2) Prior to commencing practice, the Practitioner must provide to AHPRA for approval by the Board, the name and contact details of the proposed employer, a job offer and position description, that includes the Practitioner's direct reports, from the proposed employer. 3) Within 14 days of Board approval of employment arrangement(s), the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that: a) AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration, or confirm that the senior person has received a copy of the conditions from the Practitioner, and b) The Practitioner will be required to provide the same form: i) within seven days of the commencement of practice at each and every subsequent place of practice, and ii) within seven days of each and every notice of any subsequent alteration of these conditions. 4) Prior to commencing practice, the Practitioner must provide to AHPRA, on the approved form (HPS7), acknowledgement from the senior person at each place of practice that they have seen a copy of the conditions on the Practitioner's registration and are aware of the monitoring and reporting requirements outlined on that form. 5) Within 28 days of the notice of imposition of these conditions, the Practitioner must provide to AHPRA: a) Acknowledgement, on the approved form (HP1), that for the purposes of monitoring compliance with the conditions on their registration restricting access to medications, AHPRA may contact Medicare and/or drugs and poisons regulatory authorities in relevant states or territories. 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: 18 October 2019