In Re Dr Anthony MICHAEL

[2004] NSWMT 12

New South Wales

Medical Tribunal

CITATION:	In Re Dr Anthony MICHAEL [2004] NSWMT 12
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission (Applicant) Dr Anthony Michael (Respondent)
FILE NUMBER(S):	40005 of 2004
CORAM:	Walmsley, SC DCJ at 1 - Gleeson, Dr M - Kendrick, Dr J - Mares, Dr S
CATCHWORDS:	Deregistration - Professional Misconduct - Self administration of illicit drugs - Fraudulent use of prescriptions - Breaches of practice conditions - Impairment by addiction to deleterious drug
LEGISLATION CITED:	Section 51(1) Medical Practice Act 1992 (NSW) Ss 10, 12, 15 and 17 Drug Misuse and Trafficking Act, 1985 Cl 151(1) Poisons and Therapeautic Goods Regulation, 1994
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 at 361; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637
DATES OF HEARING:	22 and 23 September 2004
DATE OF JUDGMENT:	23 September 2004
LEGAL REPRESENTATIVES:	Ms K Eastman (Applicant) Mr M Bozic S.C. (Respondent)
ORDERS:	1. The name of Anthony Michael be removed from the Register of Medical Practitioners 2. Pursuant to section 64(3) of the Medical Practice Act 1992, no application for review of this order may be made for a period of two years from this date 3. The respondent is to pay the Commission's costs of these proceedings

JUDGMENT:

DEPUTY CHAIRPERSON:

1 The Tribunal, for reasons which I am about to deliver, has come to the view that Dr Michael's name should be removed from the Register and that he not be permitted to make an application for review for a period of two years from this date. I will now give the reasons of the Tribunal.

2 By statutory declaration of 24 October 2002, Mr Dicks, the Registrar of the New South Wales Medical Board, made a complaint on behalf of the New South Wales Medical Board alleging breaches by Dr Michael of ss 36 and 37 of the Medical Practice Act , (which I will call “the Act”). Ultimately the Health Care Complaints Commission, (which I will call “the Commission”), complained to this Tribunal. The complaint of 4 February 2004 has two parts, each of which has particulars.

3 Part one alleges that Dr Michael has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of ss 36 and 37 of the Act in that he has, (1), demonstrated a lack of care, skill or judgement in the practice of medicine; and/or (2), has been guilty of improper or unethical conduct relating to the practice of medicine; (3), has contravened conditions to which his registration is subject, hereto annexed as annexure A.

4 Particulars of complaint (1) are that in or about 17 July 2002 he self-administered a non-prescription compound analgesic, namely Nurofen Plus, in contravention of condition seven of his registration conditions; that on 8 August 2002 he took possession of a Schedule Eight drug, namely pethidine, in contravention of condition four of those conditions; in August 2002 he prescribed for self-medication a Schedule Eight drug, namely pethidine, in contravention of condition eight of his registration; in about August 2002 he self-administered a Schedule Eight drug, namely pethidine, in contravention of condition seven; between May and June 2003 he self-administered a schedule eight drug, namely pethidine, in contravention of condition seven; in about August 2002 he self-administered a prohibited drug, namely pethidine, in contravention of s 12 of the Drug Misuse and Trafficking Act 1985; on 8 August 2002 he obtained for self-use a prohibited drug, namely pethidine, from Mr Vinay Nayajer, the pharmacist at Middleton's Pharmacy at Abbotsford, New South Wales, by knowingly making false representations to the pharmacist in contravention of s 17 of the Drug Misuse and Trafficking Act 1985; on 8 August 2002 he took possession of a drug of addiction, namely pethidine, when his drug authority had been withdrawn under the provision of cl 151(1) of the Poisons and Therapeutic Goods Regulation 1994 and in contravention of s 10 of the Drugs Misuse and Trafficking Act 1985; in or about August 2002 the practitioner stole a prescription pad from a colleague, Dr John Kyriazis, at the medical practice where the practitioner was working at the time; in or about August 2002 he knowingly forged and uttered a prescription from the prescription pad of Dr Kyriazis to obtain pethidine from Mr Nayajer, pharmacist, contrary to s 15 of the Drug Misuse and Trafficking Act 1985.

5 The second part of the complaint is that the practitioner suffers from an impairment within the meaning of cl 3 of the dictionary of the Act, in that he suffers from a physical or mental disorder, namely an addiction to a deleterious drug and/or substance abuse disorder which detrimentally affects or is likely to affect his physical or mental capacity to practice medicine.

6 Particulars of that complaint are, (1), in or about 17 July 2002 the practitioner self-administered a non-prescription compound analgesic, namely Nurofen Plus; and, (2), in or about August 2002 he self-administered a drug of addiction, namely pethidine. On annexure to the complaint contains the conditions of registration and it will be recalled that I have made some reference to those conditions.

7 This was not the first time Dr Michael had been before this Tribunal. On 18 April 2002 a differently constituted Tribunal found proved complaints by the Commission. The circumstances leading up to those proceedings were somewhat similar to those leading to these. In short, they were drug related matters.

8 Before embarking on a consideration of the Tribunal's reasons there and the evidence before us I will say something about the background of Dr Michael. Dr Michael was born on 15 April 1960, so he is now aged forty-four. He is married and has children and lives in the Sydney suburb of Strathfield. In the year 1983 he qualified with the degrees of Bachelor of Medicine and Bachelor of Science from the University of New South Wales. Between 1984 to 1987 he worked as an intern and then resident at Lidcombe Hospital and then at Prince of Wales hospital. In 1987 he commenced working as a general practitioner in Punchbowl and in 2002 he joined a group general practice at Enfield.

9 In January 1999 Dr Michael began to use pethidine and morphine when suffering from a bowl spasm from what he said was lactose intolerance. He obtained drugs from his own supplies and later continued to use them for non-medical purposes. By the middle of 1999 his self-administering had increased and he voluntarily relinquished his drug authority after a meeting with the pharmaceutical advisor to the Medical Board. The Director-General of the Department of Health withdrew his authority to possess, supply and prescribe drugs of addiction. In late 1999 he continued to use pethidine and obtained it dishonestly; he was also using morphine. The Medical Board retained specialist psychiatrist, Dr Morse, who saw him then and has seen him since from time to time. Dr Morse said that he had a serious drug addiction problem and was in danger of further addiction. In November 1999 Dr Michael was the subject of an Impaired Registrants Panel Inquiry. Its members recommended that he cease practising until he was appropriately treated. He did cease practice. He was admitted to the Dependance Unit at the Northside Clinic from 29 November 1999 to 10 December 1999. His position was reviewed by the Medical Board in February 2000.

10 In a report of 24 February 2000, Dr Morse indicated that Dr Michael had demonstrated a deal of insight into his condition and the future dangers of use and he advised that he was fit to return to practice subject to certain conditions being placed on registration. The Impaired Registrants Panel then recommended he resume practice subject to those conditions. On 8 April 2000 he self-administered morphine and heroin and on 9 April self-administered pethidine. On 18 May 2000 the Director of Medical Services at Bankstown Lidcombe Hospital wrote to the Medical Board notifying that Dr Michael had been admitted to the hospital for an opiate overdose. He was taken to the Emergency Department by ambulance, apparently having been found unconscious in his surgery with a syringe beside him.

11 They were the circumstances which led up to the proceedings which were before the Tribunal in 2002. A s 66 inquiry on 29 May 2000 suspended him from practice. He remained suspended until 3 December 2001. He was then permitted to resume practice with conditions as he was seen to have taken significant rehabilitative steps. Among other things he had had clear urine reports for a time and some support from Dr Morse as he seemed to him to be more willing to admit his problems and vulnerabilities. Dr Michael wrote to the Commission on 5 January 2001 accepting that he had an addiction to pethidine and morphine. In March of that year he wrote to the Medical Board saying that he recognised he was a drug addict and that he had to fight those times of turmoil.

12 Contemporaneous drug test results were positive for morphine and temazepam. He attended the Northside Clinic for a time in 2001 in the month of March. When he was permitted eventually to resume practice on 3 December 2001 it was with stringent conditions. He continued to see Dr Morse, who became concerned that the urine samples were diluted. By reason of the events which I have earlier referred to, in mid-2000 the Tribunal concluded that he was an impaired practitioner with a history of abusing drugs and having consistently misled practitioners who were trying to help him, and had tried to deceive other practitioners to obtain drugs and that he had broken conditions on his right to practice. The previous Tribunal, however, did not deregister him but reprimanded him and ordered that his right to practice be subject to conditions including that he work in a group practice, that his schedule eight authority be withdrawn and he not administer, possess or handle a schedule eight narcotic. He was to have treatment from psychiatrists and attend for three days a week for urine screening for drugs and to attend Board reviews. Those orders of the Tribunal were made on 18 April 2002.

13 Almost immediately, however, Dr Michael was in breach of conditions: see, for example, the particulars of the first complaint here relating to the use of Nurofen. Of particular concern to this Tribunal was that on 8 August 2002 he stole a prescription pad from a colleague and wrote out a prescription for pethidine and presented it at a pharmacy and falsely and knowingly put it forward as that of his colleague to obtain pethidine. A s 66 inquiry was held on 4 September 2002. He admitted stealing his colleague’s prescription. Dr Morse recommended that he be suspended, saying he should be regarded as a drug addict who is out of control. His right to practice was then suspended and by reason of a series of further suspensions he has not practised since 4 September 2002.

14 By at least mid-2002 question marks had been raised as to his urine tests and whether samples had been diluted. Dr Michael, as to the question mark, said that he at times had to drink excessive fluids to have the capacity to urinate as and when required.

15 Dr Morse noted on 7 July 2002, "his urine has been clear and there is no suggestion of any dilution as I have observed the results over the last two to three months".

16 On 26 August 2002 Mr Morse wrote concerning his resumed use of pethidine, "his extraordinary behaviour of stealing a script from a colleague and getting it filled indicates a desperation to take pethidine". Dr Morse described as “implausible” Dr Michael's explanations given in connection with there being emotional stress which gave rise to the circumstances in which he saw himself being humiliated and poorly treated by his general practitioner and his brother-in-law to whom he went in a time of need. As well, Dr Morse was concerned, of course, about the question of the script.

17 Urine results were positive, for pethidine on 13 June and 27 June 2003 and one other date. In responding to those positives, Dr Michael said that he could not explain them.

18 On 26 September 2003 the Commission asked Dr Ian Chung for a peer review. The background as explained by the Commission is set out in its letter of that day to Dr Chung. Dr Chung replied to that request in a letter of 5 October 2003 and he said, as follows, among other things:

"Dr Michael has the ability to create an impression on his observers, an impression not matched by a positive treatment outcome. The impression is gained that many parties have made efforts to give Dr Michael a generous appraisal and the impression is gained that Dr Michael was treated fairly. It is to be noted that Dr Michael was given opportunities that were matched by his own efforts and/or performance. The result has been a number of relapses. Dr Michael throughout the process repeatedly protested as to his good intention which failed to materialise in reality.

It is to be noted that Dr Morse, the Board nominated psychiatrist, in his reports expressed great initial reservations and concerns about Dr Michael. It can be observed in Dr Morse's reports to the Board that he became gradually persuaded by Dr Michael as to his change in attitude and the success of his recovery. It could be inferred from the eventual course of events that as is not uncommon the assessing doctor can be seduced by the patient's apparent and self-proclaimed progress. This is in no way to be critical of the assessing doctor as it is well recognised that retrospective assessments are easier than prospective. The repeated references to Dr Michael's plausible presentations suggested he has persuasive capabilities. It is to be noted that Dr Michael also managed to convince a number of other parties of his alleged rehabilitation to the extent that they were prepared to support his return to the practice of medicine. Unfortunately, Dr Michael quite rapidly betrayed the confidence of those prepared to support him. One can only conclude that the Board nominated psychiatrist's initial concerns about Dr Michael were ultimately correct.

It seems clear that all efforts have been exhausted so far to bring about Dr Michael's rehabilitation. It would not be unreasonable to suggest that the repeat strategies already attempted in the past and in the same manner are liable to meet with the same result. Dr Michael's conduct leads one to the same conclusion as initial expressed that Dr Michael's priority is to satisfy the needs of his addiction rather than to comply with the restrictions that would allow him to continue in practice. It could also be concluded that he continues to fail to understand the connection between his abstinence from drug use and the safe practice of medicine. That being the case, it seems that Dr Michael could not be relied upon to exercise this professional in this regard and therefore it would be the duty of those responsible for the safety of the public and the practice of medicine to impose whatever strategy upon Dr Michael they see fit to secure public safety."

19 Dr Chung went on on page five of his report to say:

"In rehabilitation from drug abuse it was recognised by those practitioners who were experienced in the field that the drug abuser who had not achieved full insight and motivation was prone to do a number of things including attempting to contain and maintain the use of drugs in spite of all consequences, to deny the addiction and other conduct, to hide the behaviour to betray, resist and mislead carers, to feign insight, compliance and regret, shame or guilt, to feign illness and lie about alleged symptoms, to engage in theft, forgery and other illegal acts and fail to accept or see that their conduct may have deleterious affect on others and to delude themselves and others about the extent of their recovery or compliance.

In the management of drug addiction relapses are a part of the process towards recovery by the sufferer. The effective and disciplined management of relapses is an important part of the proper management of the rehabilitation process."

20 Dr Chung went on to say:

"Poor management of relapses would result in risks of extending acts of addictive conduct by the sufferer. It is the experience of those practitioners engaged in treating this patient group that it is a part of the difficulty of their task to be fair and just to the patient, whilst at the same time providing the discipline and honesty that may be missing from the addict's behaviour pattern."

21 Dr Chung concluded his report by saying that he was severely critical of Dr Michael's conduct and that his conduct attracted his severe disapproval and in his opinion his conduct would attract the severe disapproval of his peers of good repute and conduct.

22 Dr Morse returned to consider the question of the diluted urine samples in a report which he gave on 7 September 2004 to the New South Wales Medical Board. Dr Morse then said this:

"Given the twenty-two dilute urine samples since 30 June 2003, one must be suspicious regarding this. Over that time it is a not a large number but it is certainly very unusual, especially given the number diluted in the past.

For the reasons outlined above there must be some suspicion attached to the presence of so many dilute urines in Dr Michael's case. In general it can be said that I have not experienced dilute urine reports in testing from other doctors. In fairness, however, conclusions should not be drawn on the basis of this matter alone and perhaps the Board would consider an opinion of a renal physician.

I would be reluctant to recommend to the Board that Dr Michael be reinstated in medical practice until the following criteria had been met -

1. Dr Michael accepts that he has a serious narcotic dependency problem and that he will in the future be in constant danger of use and for this reason needs to be constantly alert to this danger and it needs vigorous ongoing treatment.

2. The matters of the dilute urine have been cleared up either with a physiological explanation or till no more dilute urine results occur for some months.

3. That he has ongoing urine testing.

4. That he has intensive treatment by a drug and alcohol counsellor and that he attend AA or Narcotics Anonymous meetings and be under psychiatric supervision and treatments with conditions that the Board usually lays down in regard to notification of these treatments.

I do not know what Dr Michael's current views are in regard to his past narcotic use or his view of the control or lack of control that he felt he had over his drug use. I do not know what explanation he has for the dilute urine that continue to occur."

23 In answer to a question whether he considered that a fourteen-month abstinence from drug use constituted a recovery or whether there was a likelihood of relapsing and a safe return to practice of medicine he said:

"If Dr Michaels has been abstinent for fourteen months this would indicate that the recovery has started and if the other requirements I have referred to above have been met he would be safe to return to the practice of medicine under supervised conditions."

24 Dr Morse was asked to consider if there was a risk of relapse whether the public would be adequately protected by the Board's monitoring Dr Michael under its impaired registrants program. He said this:

"If Dr Michael resumed the practice of medicine, given his past history, there would be concerns that if he relapsed this may not be detected if the Board continue to accept the dilute urines and in the absence of a known physiological reason for these dilute urines. For the public to be adequately protected the Board would require Dr Michael's acceptance that he has a serious drug problem and needs ongoing intensive supervision and treatment for this problem. At this time from the information I have available and the lack of information regarding Dr Michael's present status and attitudes, I am unable to state that the Board monitoring Dr Michael in its impaired registrants program would adequately protect the public."

25 The Tribunal was told by counsel appearing for the Commission that the dilute results, so-called, do not lead to the Commission’s submitting that there might have been a misuse of drugs but it was put to us by counsel for the Commission that the reference to the dilute results and the comments about these results were part of the picture that were put forward. In fact, there was no opinion put before the Tribunal from a renal physician or other appropriately qualified expert on the issue or significance of the dilute urine test results. The Board's protocol dealing with screening does have a reference to dilute samples and at 3.8, the first dot point, says this under the heading Dilute Samples:

"The Board considers a test to be dilute when the urine creatinine is below 2.0 mmol/lt. Dilute urine suggests that the Doctor has consumed a large volume of water prior to passing the urine or that there has been adulteration of the sample after collection. This renders the test invalid as drug metabolites are diluted to concentrations below screening detection levels."

26 Notwithstanding the matters that I have mentioned relating to the dilute urine, the Tribunal adopts the submission of counsel for the Commission that the reference to this and the comments about the dilute urine samples is and must be seen merely as part of the picture that is painted by the Commission.

27 These proceedings came before us for hearing yesterday. Ms Eastman, of counsel, appeared for the Commission and Mr Bozic, of Senior Counsel, for Dr Michael. In response to the case presented by the Commission, Dr Michael conceded the truth of all aspects of the particulars of the complaints. Dr Michael made no attempt to contradict and, indeed, he went so far as to concede in a statement, which was part of exhibit 1, that his conduct amounted to professional misconduct. He conceded that it was appropriate for his name to be removed from the Register. Dr Michael gave evidence and was cross-examined and we will return to that.

28 When the matter came before the Tribunal there was no issue before us but that Dr Michael's name ought be removed from the Register. The sole issue which occupied the time of the Tribunal concerned the time, if any, for which it ought order Dr Michael to wait before applying for restoration to the Register.

29 Mr Bozic submitted that this period ought be one year from now. Ms Eastman, for the Commission, submitted a range of two to four years. We were taken to several decisions of the Tribunal where such orders had been made and relevant factors considered. We were also taken by counsel for the Commission, to the Court of Appeal’s decision in Healthcare Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637 where the Court, which consisted of the then Chief Justice Gleeson, Meagher and Handley JJA, said:

"Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards primarily for the protection of the public but also for the protection of the profession."

30 In support of a lengthy period, Ms Eastman drew our attention to the serious nature of the particulars, especially the theft of the pad and the forging and uttering of the prescription and using the drugs so obtained for Dr Michael's own addiction. Dr Michael told us in cross-examination that he was never prosecuted for what, to this Tribunal, were apparently serious criminal offences. There is no evidence that he will be prosecuted but it must remain a possibility that he will be.

31 It was put to us too that he had not reformed and further it was put to us, that it cannot be assumed that he will reform in time simply because time passes after the discreditable occurrences. It was submitted that Dr Michael had shown no remorse and had made no attempt to address the behavioural patterns which had contributed to his conduct and that he had no real insight into the nature and extent of his addiction.

32 Dr Michael's longstanding treating psychiatrist in an opinion of 1 September 2004 noted that there had been incidences of denial. But he had some positive things to say. That treating psychiatrist is Dr Michael Honnery. He said:

"There is no doubt that Dr Michael has had a relapse in his condition which has provided a major impediment towards his recovery. However, it's my view that the episode should be viewed in this light. To ignore the genuine insight and distress that the relapse has caused him would be to limit any further capacity for recovery.

It should again be stressed that I am in agreement with the peer reviewer's assessment that Dr Michael deviated from adequate standards of medical practice by his possession and self-administering of narcotics and by providing false information and theft of a script. Clearly during this episode Dr Michael had demonstrated improper and unethical practice of medicine.

Where I am not in agreement with the peer reviewer's assessment is that I consider this episode to be a relapse rather than indicative of an inherent personality or intractable dependence disorder. The implication that Dr Michael is without insight and in fact sociopathic in his manipulation and capacity to deceive his medical carers does not fit with his clinical history nor with the impressions gained by those carers.

It is my view that given his continued and sustained progress since his relapse two years ago he demonstrates the potential and capability to make a positive contribution to medicine in the future."

33 Mr Bozic invited us to give weight to that view. Dr Michael has also seen consultant psychiatrist, Dr Jonathon Phillips, though much less frequently than he has seen Dr Honnery.

34 Dr Phillips on 24 August 2004, among other things, said this:

"I have treated numerous other medical practitioners for drug related problems and reviewed other colleagues on order by the Medical Board and in so doing have come to realise that each individual has to reach his/her personal rock bottom before beginning the slow road to recovery. Dr Michael is no exception to this rule. I believe it is more likely than not that he retains capacity to put drug use behind him.

I hope the reality of his current situation, particularly the forthcoming hearing of the Medical Tribunal, will cause him to look carefully at his behaviour, his apparently less than honest comments on various occasions and additionally to undertake the first important steps of rehabilitation.

With respect I do not believe that Dr Michael's name should be removed permanently from the Roll of Medical Practitioners. It would be in the client's best interests and provide safety for the public if he were to be given a fixed but not inconsiderable period of time to demonstrate his ability to undertake successful rehabilitation. In my view it might also prove useful to mandate that any positive urine screen for opioids in that period would invalidate the process. The client should continue in therapy with Dr Honnery and accept medication with anti-depressant or other psychotropic agents should it be the direction of his treating doctor.

Essentially Dr Michael requires to be bonded to a rehabilitation program with no tolerance for error. The very specificity of any such program will provide a degree of security for him. It will then be up to the client to decide whether he can demonstrate to himself, his family, the community and the appropriate authorities that he is again fit to practice medicine."

35 Mr Bozic, in submitting that the Tribunal ought specify twelve months before he may reapply for registration, said that he would continue to see Dr Honnery and Dr Phillips and would subject himself to urinalysis at the rate of three per week.

36 In evidence Dr Michael said that he intended continuing to see those practitioners and undergo urinalysis. He has, we think it fair to say, not seen or spoken to Dr Phillips for some time. Dr Michael accepts that he has narcotic dependency problems, he says. He has been to a doctors' recovery group but he observed that the good effect that he obtained in that group did tend to lessen with time. He claimed in evidence to have strategies to cope with times of crisis. He conceded that in his current occupation, which is café proprietor, he does not have the same opportunities which would apply where pressures were present and opportunities were present in medical practice. So that he does not, in other words, have such a ready availability of drugs, particularly narcotics, in his current occupation.

37 He said that he had learnt a lot about himself in recent times and what had driven him and that he had been driven by various pressures. He said that he saw his vulnerability as a link to the problems. He relied on matters such as long hours, treating members of a football club and social pressures and the like, as leading to previous problems. He expressed a concern that he will find it hard to come back to medicine if he is away from medicine too long.

38 He was asked by a Tribunal Member about whether he still had cravings. He said that he still has thoughts but they are less frequent or intense; these thoughts are not as great as they were and he no longer has the same fear, he says, of talking about his addiction problem with those around him.

39 The Tribunal has considerable concerns that an early return to practice by Dr Michael would involve a repetition of events such as those which are the subject of the complaints before us. We put aside the question of the dilute urine samples as we are not persuaded that these, on the evidence before us, show a deliberate attempt on his part to interfere with the results. Having put that issue aside we are left with a situation where there is an approximately fourteen month period in which there are no positive indications of substance abuse. We see that as a worthy beginning. The fourteen month period, however, must be seen, as earlier observed, with coinciding with not practising medicine, therefore limiting opportunities for access to the substances which he has in the past abused. We see it as a positive matter that he is continuing to see and says he will continue to see Dr Honnery and Dr Phillips.

40 The Tribunal is concerned that Dr Michael has not yet developed what it regards as sufficient strategies to cope with times of crisis. However, It notes that he says that he has developed a strength not previously present. Even putting aside the question of whether that assertion by him could or ought be accepted, opportunities for such strategies as he says he has, to be tested, are not present we see in his current occupation. This, of course, is inevitable given that he cannot practice and has not practised for the last two years. We regard some of the complaints as extremely serious, especially the theft of the script pad and the later illegal use of it. At the same time the Tribunal sees him, at age forty-four, as someone who, given his age, could return to medicine and who has potential to do some good for the community.

41 There is no evidence before the Tribunal to suggest that any patient has suffered from his behaviour and there is nothing to suggest other than that he appears to be a caring doctor. The Tribunal is concerned not to impose too long a period for his reapplication lest he become too much out of contact with medical practice. Of course, we would assume any successful application which he may make would, in any event, involve initially working in an area such as in a hospital, with good opportunities to catch up quickly. But the factor is, nonetheless, one we take account of. Too short a time, it seems to the Tribunal, and he would not properly develop the insight into his addiction and its consequences which we consider he needs. We consider he needs a substantial period so that he can properly develop that insight which we are not persuaded, as yet, is currently well developed. We have considered the periods imposed by the Tribunal in Dr Martin James Pollard, which was a decision of this Tribunal on 23 May 2001, where the period for which he was prevented from reapplying was four years. We have also considered the matter of Dr Robert Bernard Hampshire, a decision of 12 December 1994, where the period was two years.

42 Each case must, of course, be looked at and treated on its own peculiar facts. The Tribunal has reached the view, having taken into account all relevant facts, that the period imposed here before Dr Michael may reapply should be two years from today.

43 The Tribunal recommends to Dr Michael that should he seek reapplication, in order to show that he has undergone rehabilitation and is fit to engage in the practice of medicine, he produce evidence at the time of any such application showing that he has remained free of opiates and other substances of abuse and has developed and can use strategies to assist him when in times of personal crisis, that he has attended for and has had treatment from psychiatrists and other attending and relevant practitioners and has attended meetings of groups, such as Doctors in Recovery and Narcotics Anonymous and that he has remained up-to-date with his knowledge of medical practice. In setting a time of two years, the Tribunal takes account of the fact that he has not been permitted to practice for the last two years.

44 The Tribunal finds complaints one and two, proved on the Briginshaw test: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361. The Tribunal finds Dr Michael, by reason thereof, guilty of professional misconduct.

45 The orders that the Tribunal makes are these:

1. The name of Anthony Michael be removed from the Register of Medical Practitioners

2. Pursuant to 64(3) of the Medical Practice Act 1992, no application for review of this order may be made for a period of two years from this date.

3. The respondent is to pay the Commission’s costs of these proceedings.

**********