Katelaris v Medical Board of NSW

[2009] NSWMT 6

New South Wales

Medical Tribunal

CITATION:	Katelaris v Medical Board of NSW [2009] NSWMT 6
TRIBUNAL:	Medical Tribunal
PARTIES:	Dr Andrew Katelaris Medical Board of New South Wales
FILE NUMBER(S):	40023 of 2008
CORAM:	Ainslie-Wallace, DCJ - Rotenko, Dr I - Diamond, Dr M - Deveson, AO Ms A
CATCHWORDS:	Review of order removing name from Register - Applicant bears the onus to prove fitness
LEGISLATION CITED:	Medical Practice Act 1992
CASES CITED:	Exparte TZINOLIS: re the Medical Practitioners Act (1966) 67 SR 448; Zaidi v Health Care complaints Commission [2006] NSWMT 6; Zaidi v Health Care complaints Commission [1996] NSWMT; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Prothonotary of the Supreme Court of NSW v Katelaris (No 2) [2008] NSWSC 702
DATES OF HEARING:	24.8.2009, 25.8.2009, 26.8.2009.
DATE OF JUDGMENT:	16 October 2009
LEGAL REPRESENTATIVES:	Applicant appeared in person G Furness of Counsel for the respondent
ORDERS:	1 Application dismissed.; 2 Applicant to pay the respondent's costs of the application.

JUDGMENT:

THE MEDICAL TRIBUNAL

OF NEW SOUTH WALES

AT SYDNEY

No. 40023 of 2008

BETWEEN

Dr Andrew Katelaris

Applicant

Medical Board of NSW

Respondent

Deputy Chair: Judge A M Ainslie-Wallace

Members: Dr Irene Rotenko

Dr Michael Diamond

Ms Anne Deveson AO

Reasons for determination

1 The applicant seeks to review an order that his name be removed from the register of Medical Practitioners.

2 On 15 December 2005 after hearing and determining a number of complaints brought by the Health Care Complaints Commission against the applicant, a Medical Tribunal ordered that the respondent's name be removed from the register of practitioners and that he not apply for re-registration for a period of three years. For the purposes of these reasons, this will be referred to as the 2005 Medical Tribunal.

Background

3 The applicant graduated MB BS from Sydney University in 1981. He has worked both in hospital settings and in general practice. Between 1993 and 1998 he held the position of registrar in histopathology at the NSW Institute of Forensic Medicine, Liverpool Hospital and Westmead Children's hospital. From 1999 until he was de-registered he was Staff Medical Officer at North Shore Private Hospital. He has a doctoral degree in immunopathology.

4 In 1986 the applicant self-administered morphine.

5 In 1988 he pleaded guilty to self-administration of cocaine and morphine. No conviction was recorded and was required to enter into a recognizance to be of good behaviour for 2 years.

6 In 1988 his right to prescribe Schedule 8 drugs was withdrawn at his own request because he again self-administered morphine.

7 In 1989 the applicant requested that the restrictions on his right to prescribe be lifted. The applicant was interviewed by members of the NSW Medical Board (the ‘ Board ’) who considered the application. It was decided that some prescribing restrictions be lifted, although not those relating to Schedule 8 drugs. The easing of the restrictions was conditional on the applicant undergoing urinalyses and notifying his employer of the undertakings. The applicant did not consent to the conditions. His application was thus unsuccessful.

8 In October 1990 a Professional Standards Committee was convened to consider a complaint that the applicant was addicted to drugs. The particulars of the complaint were:

that between July and December 1986 he had administered cocaine to himself on 4 occasions;
that between December 1985 and December 1986 he self-administered about 40 ampoules of morphine;
in early 1988 he self-administered about 20 ampoules of morphine, in March 1988 urinalysis detected opiates,
in June 1988 he self-administered Pethidine and in August 1988 he self-administered Fortral.

9 The applicant admitted these particulars and the Committee found them proved.

10 The hearing was adjourned and during the adjournment a further complaint was made against the applicant:

"...that he had authorised the administration of drugs of addictions between July and October 1990 without an authority and he had possessed ampoules of Pethidine on 7th October 1990 without authority."

11 The applicant also admitted the particulars of this complaint. He told the Committee that he believed that his right to prescribe Schedule 8 drugs had not been withdrawn and said that he had misunderstood the offer made by the Board to ease the restrictions on his right to prescribe on conditions as being a return to him of those rights. He admitted that he had written prescriptions for Schedule 8 drugs without the proper authority.

1991 Medical Tribunal

12 Based on the applicant's admissions, the matter was referred to a Medical Tribunal.

13 In March 1991 a Medical Tribunal found the applicant guilty of professional misconduct by reason of his continued self-administration of drugs of addiction and "the deliberate flouting of the law or proper authority concerning the prescription of drugs of addiction". [1] The Tribunal expressed concern that the applicant did not appear to appreciate the gravity of his misconduct:

"...his prescribing conduct justified by not getting his way with the authorities when he believed that he was justified in resisting proper conditions imposed by his experienced professional colleagues." [2]

14 The Tribunal took into account a letter from the Director of the hospital at which the applicant worked which noted that there were no complaints about his conduct either from colleagues or patients. The letter noted that the applicant had received compliments about his work and contact with patients.

15 The Tribunal ordered that the applicant be suspended from practice for 12 months. It ordered that on his return to practise, his authority to prescribe Schedule 8 drugs remain withdrawn and, for a period of 12 months, he only practise medicine while employed in a hospital or in a position approved by the Board.

16 In August 1992 the applicant's right to prescribe Schedule 8 drugs was restored on condition that he not have possession of drugs of addiction and that he not prescribe Schedule 8 drugs except to patients at the Sydney Adventist Hospital. In October 1993 all conditions on the applicant's right to prescribe were lifted and his right to prescribe Schedule 8 drugs was fully restored.

17 In January 2002 the Pharmaceutical Services Branch of the NSW Department of Health received a report that empty packets of pethidine in the name of someone other than the applicant had been found in his home. On 19th January 2002 the applicant was admitted to hospital after injecting himself with ketamine. The hospital notes record that the applicant said he had injected himself with ketamine on a number of occasions from September or October 2001.

Impaired Registrants Panel

18 The Board was notified of this admission to hospital and, in May 2002, convened an Impaired Registrants Panel to interview the applicant. The applicant told the Panel that he had used ketamine to reduce his narcotic intake and said that he had self-prescribed steroids. The applicant told the panel that he had prescribed ketamine for a friend and had used some of the drug himself as analgesia. The applicant denied that he suffered from an impairment.

19 The Panel found that the applicant was impaired because of his tendency to use substances that may affect his mental capacity to practise medicine.

20 At the conclusion of that meeting the applicant agreed to the imposition of conditions on his right to practise (inter alia): that he not prescribe for self-medication; that he not self-administer any Schedule 4 or Schedule 8 drug and that he inform the Board of any illness that required the administration of any Schedule 4 or Schedule 8 drug. The applicant was also required to attend for regular review by a Board nominated psychiatrist, Dr Jonathan Phillips.

21 In August 2002, the Board received a report from the Pharmaceutical Services Branch that after investigating the applicant's prescribing record, it had found:

"That between March 2000 and January 2002, the applicant had paid for and collected pethidine, morphine, fentanyl, oxycodeine and ketamine on his prescription written in the names of other people;

that the applicant had self-prescribed and self-administered ketamine;
had prescribed drugs of addiction to family and friends;
had no prescribing records for seven patients for whom he had prescribed drugs of addiction and/or dependence;
kept no drug register;
the explanation given by the applicant about his disposition of drugs of addiction in January 2002 was questioned."

Section 66 Inquiry

22 In September 2003 an inquiry was convened pursuant to Section 66 of the Medical Practice Act to determine whether, based on the report from the Pharmaceutical Services Branch, the Board should suspend or place conditions on the applicant's right to practise.

23 In relation to the self-prescription and administration of ketamine, the applicant told the Inquiry that he had used it for pain control after a flare up in an arthritic condition. He had not consulted a general practitioner nor his treating specialist about his use of the drug. That this conduct was in breach of conditions on his registration was raised during the Inquiry.

24 The inquiry determined that the applicant should provide evidence that he was not self-prescribing and/or self-administering drugs of addiction. The inquiry imposed a further condition on his right to practise; that he undergo random urinalyses and that this should occur for at least six months after which the applicant would be again reviewed by the Board. The applicant objected to the random urinalysis and said that it would interfere with his capacity to leave Sydney every second week. Despite this objection, the Inquiry found that to properly monitor his compliance with the conditions of his registration, urinalysis must be random.

The applicant's response to conditions imposed on his registration

25 Following the finding of the Impaired Registrants Panel in May 2002, the applicant was subject to regular reviews by the Panel. In September 2002 the Panel found that the applicant had breached the conditions on his registration in that he had not made an appointment with the Board nominated psychiatrist, did not have a current general practitioner and had not seen his treating rheumatologist.

26 At the September 2002 review, the applicant was asked about the matters raised by the Pharmaceutical Services Branch report. He said that he used ketamine as an analgesic. The panel found that the applicant did not acknowledge that self-prescribing and self-administering steroids and ketamine or to prescribe Schedule 4 drugs for family and friends was inappropriate. At the conclusion of the review, the applicant promised to comply with the conditions on his registration, which were confirmed.

27 In the review of March 2003 the Panel noted that although the applicant had engaged a general practitioner, he had not consulted him for illness but had treated himself and prescribed ketamine for himself. The applicant told the Panel that he had conducted extensive research into the analgesic qualities of ketamine before deciding to write a prescription for himself to treat his pain. The applicant had attended the Board nominated psychiatrist but objected continuing to do so because, he said, there was no point. The Panel determined that another psychiatrist be nominated to conduct reviews of the applicant. The previous conditions were maintained.

28 In the report of the June 2003 review, the Panel noted that the applicant had not seen the new Board nominated psychiatrist. During discussion with the Panel, the applicant said that he was self-prescribing medication and he told the Panel that there was no point in seeing his general practitioner regularly.

29 The next review of the applicant took place in January 2004. The report of that review noted that the applicant complained that the system of random urinalyses was flawed and said that it would be preferable to conduct hair analysis to determine whether he was using drugs. Results of urinalyses undertaken by the applicant up to this review showed that on several occasions cannabis metabolites were present. There were also two occasions on which the applicant had failed to give a urine specimen.

30 During the April 2004 review the applicant said, when discussing the cannabis metabolites found in his urine, that he had found cannabis helpful instead of opiates for pain from a disc prolapse and he had been using it in small quantities. At the next review in August 2004 the Panel noted that the applicant had not attended for any urinalysis but had offered to have a hair sample tested and made other offers of compromise instead of having random urinalysis.

31 The reports of the reviews conducted in December 2004 and July 2005 note that the applicant had refused to continue seeing the Board nominated psychiatrist and had undergone no urinalyses. He was further reviewed in October 2005, again having not undergone urinalysis although he was consulting the Board appointed psychiatrist.

December 2005 Medical Tribunal

32 In December 2005, a Medical Tribunal heard and determined two complaints against the applicant, dated August 2004 and one of September 2004.

33 The August 2004 complaint alleged that:

1. the applicant had between January 1999 and January 2002 inappropriately prescribed and/or administered Schedule 8 narcotic drugs including pethidine, morphine, Ordine, Kapanol, Endone and Durogesic to 7 patients all of whom were friends or family members of the applicant.

2. During December 2000 to January 2002 the applicant had inappropriately prescribed Ketamine to two patients where the patients were friends of the applicant, for a purpose not in accordance with recognised therapeutic standards of what is medically appropriate, outside a hospital setting and without specialist medical advice or consultation.

3. During May 2000 to January 2002 the applicant inappropriately prescribed schedule 8 narcotics and a schedule 4 D drug, Ketamine to two patients where the applicant was unable to perform properly the role of general practitioner by reason of the geographic remoteness from the applicant's residence and workplace from the homes of the patients and the serious nature of the patients' medical conditions.

4. Between March 2000 and January 2002 the applicant self administered about 20 ampoules of Ketamine including about 3 ampoules on about 19th January 2002.

5. Between January 1999 and January 2002, the applicant self administered Endone, morphine and/or Pethidine.

6. Between December 2000 and January 2002 the applicant improperly diverted Ketamine obtained on prescriptions issued by the applicant in the names of two patients.

7. Between January 1999 and January 2002 the applicant improperly diverted Endone, morphine and/or Pethidine on prescriptions issued by the applicant in the names of the 7 patients whose treatment comprise the complaint and/or on doctor's bag orders, for his own use.

8. The applicant failed to notify the Health Department of the loss/destruction of his drug register for the period March 2000 to January 2002 .

34 The Complaint of 25th September alleged two matters against the applicant.

35 The first matter related to the supply of cannabis by the applicant. The particulars were:

1. Between October 2002 and September 2004 inappropriately supplied cannabis to persons for the purported control of symptoms of illness:

(a) without prior approval of an ethics committee or an authority granted by the NSW Department of Health,
(b) without establishing or following a clinical trial protocol
(c) without seeking specialist medical advice or consultation

36 The second matter alleged that the applicant had breached the conditions imposed on his registration and alleged that he had:

Between 16 May 2002 and September 2004 breached condition 8 by self-administering cannabis;
that he had failed to provide urine samples in breach of condition 5;
that the applicant had purportedly treated people with cannabis in breach of conditions requiring him to work only in a hospital position approved by the Board and not undertake solo work;
that the applicant had failed to attend the three-monthly review with the Board appointed psychiatrist, Dr Nick O'Connor between August 2004 and December 2004.

Findings of the 2005 Medical Tribunal

37 The Tribunal found that the applicant had inappropriately treated a person with whom he was in a relationship and for whom he had prescribed and administered pethidine and he had kept no record of the pethidine administered to her.

38 In relation to two patients referred to in the complaint, the Tribunal found that the applicant had inappropriately prescribed pethidine for one who was in hospital under the care of other practitioners, in circumstances in which he had not consulted with the other practitioners. It also found that the applicant had prescribed morphine for a person who was in hospital in Coffs Harbour and he had personally collected the medication on 1st June 2001 when the person on whose behalf he had prescribed the drug had died on 30th May. While making no finding that the applicant had self-administered the morphine prescribed, the Tribunal found that he had not sought to speak to the doctors with the care and management of that patient and his prescribing was inappropriate.

39 In respect of these same two people, the applicant admitted to the Tribunal that he had prescribed ketamine for both. The applicant prescribed without seeking specialist advice, without consulting their managing practitioners and in circumstances in which both lived a considerable distance from the applicant and he had not seen either for weeks before prescribing.

40 The Tribunal found that the applicant had prescribed pethidine in the name of a family member and used the drug obtained for himself.

41 The applicant admitted that he had self-prescribed and self-administered ketamine between March 2000 and January 2002. The Tribunal found that he had self-administered endone, morphine and pethidine between January 1999 and January 2002. The Tribunal found that he had written prescriptions in the names of the two persons referred to in the complaint who were under the care of other practitioners and used the drugs for himself. The Tribunal also found that the applicant had diverted Doctor's Bag supplies of pethidine and endone for his own use.

42 In considering the complaint of 2nd August 2004, the Tribunal noted that the applicant's admitted that he had used endone and pethidine obtained on prescriptions written in the names of other people and that this conduct took place after the 1991 Medical Tribunal had found him guilty of professional misconduct because of his opiate use. The 2005 Medical Tribunal found his actions to be deceitful and that, by his conduct in prescribing narcotics in the names of patients when the drugs were intended for himself, the applicant demonstrated an indifference to and abuse of the privilege of registration. The Tribunal found the applicant guilty of professional misconduct in relation to the Complaint of August 2004.

43 In relation to the Complaint of September 2004, the applicant admitted supplying cannabis to people for the control of symptoms of illness. He said that he had supplied cannabis to about 12 people who were very ill, some terminally ill. He admitted that he knew it was in contravention of the Drug Misuse and Trafficking Act and that he had no legal authority to supply the cannabis.

44 The applicant maintained that in supplying the cannabis he was acting compassionately and said that he was involved in a " pilot study " to demonstrate that there could be a form of cannabis that was medically effective.

45 The Tribunal found that there was no formal protocol covering the "trial" to which the applicant referred nor did he seek any specialist advice or consultation before providing the cannabis.

46 The applicant admitted to the Tribunal that he had used cannabis for pain relief from a disc prolapse. He said that he continued to use cannabis.

47 The Tribunal found this particular proved as it did the allegation that the applicant breached the condition that he undergo urinalyses. It was also satisfied that the applicant had breached the condition that he not work as a solo general practitioner.

48 The Tribunal noted and accepted that there were no complaints from patients or the applicant's colleagues about the quality of his work.

49 In considering the applicant's breach of the conditions of his registration the Tribunal observed:

"The respondent considered that he would only abide by conditions imposed on his registration if he considered the conditions to be reasonable. He has flagrantly disobeyed the conditions of his registration. Those conditions were not lightly imposed and the Tribunal does not consider that conditions imposed on a practitioner's registration should be lightly treated.

The Tribunal considers that the breaches by the respondent of the conditions of his registration is a grave criticism of the respondent in his practice of medicine."

50 The Tribunal found that the applicant's conduct demonstrated a refusal to recognise ethical rules and obligations in dealings with associated professional entities.

51 The Tribunal findings identified several areas in which the applicant's conduct as a medical practitioner was such that it amounted to professional misconduct.

52 The Tribunal concluded:

"...the suspension imposed by the Tribunal in 1991 appears to not have led to any long-term salutary effect in relation to the respondent's use, self administration and prescribing of narcotic. The Tribunal also accepts...that the respondent has been dismissive of the law regulating the prescribing, recording administration and dispensing of narcotics.

By his conduct the respondent has demonstrated a refusal to accept that he is bound by the same laws and restrictions that govern all other medical practitioners and by ethical rules and obligations which all reputable practitioners would recognise as binding upon them. Such an attitude is incompatible with the retention of the privileges which attach to registration as a medical practitioner. The respondent has acted in deliberate defiance of legal restrictions and ethical standards of practice." [3]

53 When discussing any future application for review of its order, the Tribunal noted:

"On any such application for review there would be a need for the applicant to show a willingness to abide by conditions imposed upon him as to his practice and to abide by the law regulating the administration and prescribing of narcotics and the law generally. There would also be a need to demonstrate on any such review that he could exercise adequate judgment in the practice of medicine... .

This Tribunal considers that the conduct of the respondent demonstrates that he had not realised the need to conduct himself in a manner approved by his peers. This Tribunal considers the respondent is of the firm belief he is entitled to act according to his own opinions of what is right and wrong." [4]

The application for review

54 Section 92 of the Medical Practice Act gives a right to review of an order of a Tribunal that a practitioner's name be removed from the register of Medical Practitioners.

55 Section 94A sets the framework for the consideration of that review:

"(1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned.

(2) The review is not to review the decision to make the order, or any findings made in connections with the making of that decision, unless significant fresh evidence is produced that was not previously available for consideration, and the appropriate review body is of the opinion that, in the circumstances of the case, the decision to make the order, or any finding on which the decision was based should be reconsidered ."

56 The jurisdiction of the Tribunal whether under section 92A or otherwise is in the protection of the public, not to punish the practitioner. The public is entitled to expect that medical practitioners are fit and proper people in whom they can repose confidence. Fitness is both a matter of competence and character.

57 The principles to be applied on a review such as this are well established. [5] An applicant for review of an order for deregistration bears the onus of proving that he is a fit and proper person to be allowed to practise and must, " in effect displace the decision for deregistration which has been made. " [6]

58 In proving that the applicant is and fit a proper person to rejoin his profession what must be considered is the Tribunal's assessment of his " character, uprightness, honour and trustworthiness " [7] and whether this Tribunal is confident that in the future the applicant will conduct himself differently and in accordance with accepted conduct.

The applicant's case

59 For the consideration of the Tribunal, the applicant tendered a folder of material that included statements by him and other information, gave evidence and was cross-examined. He called character evidence from his sister, Professor Dianna Kenny and from his treating rheumatologist, Dr Champion.

60 Much of the information in the folder purported to go behind the decision and findings of the 2005 Tribunal. There was nothing in the material that was significant, fresh evidence and the Tribunal determined that the application would not involve a re-consideration of the findings of the Tribunal.

61 A number of broad issues were identified and discussed during the hearing as being relevant to the application.

Self-prescription and Administration of drugs

62 In his statement prepared for the application (Exhibit 1) the applicant said that his use of pethidine was " in a medical context " for the control of serious symptoms. His use of ketamine (both for his own use and administered to two other people) was: " not a rash decision but followed an extensive literature search and consultation... ". The essence of the applicant's statement in this regard was that ketamine was an effective analgesic but Australia had lagged behind other countries in recognising this.

63 In his evidence to the Tribunal, the applicant said that his use of pethidine and ketamine was driven by his then medical conditions and, as he regarded himself as being completely recovered, there would be no future need to use or self-prescribe those drugs. [8]

64 The applicant's position to the Tribunal was that his self-prescription and self-medication over the years had been in response to painful physical conditions. He had used pethidine, ketamine and then cannabis for pain relief. He asserted that his prescription and use of these drugs was both reasonable and appropriate in the circumstances. He also used large doses of self-prescribed steroids.

65 Dr Champion, a rheumatologist, had been consulted by the applicant for years and had written a number of reports. In April 2005 [9] he noted that he had attended the applicant periodically for more than 13 years for three conditions; a lumbar disc lesion with right radiculopathy; recurrent acute joint pain, often severe, that he described as " reactive arthritis " and recurrent gout.

66 The lumbar disc lesion was of sufficient severity to warrant surgical decompression and in Dr Champion's report of 2005 and, in his evidence, he said that the applicant still experienced episodes of sciatic pain. In December 2007 the applicant told Dr Champion that he was using cannabis for the symptoms. The reactive arthritis was first treated by Dr Champion in 1989. Dr Champion said that in 1997 the applicant had a particularly severe episode but that since then his condition had generally improved. Dr Champion thought that the applicant was unlikely to have a further episode of reactive arthritis. The gout was recurrent and intermittently severe and on one occasion had required hospitalisation.

67 Dr Champion said that he and the applicant had frequently discussed the use of ketamine as an analgesic and he was aware that the applicant had self-prescribed and self-administered ketamine. Dr Champion said that ketamine is a useful analgesic agent when used in a hospital setting and when opiates and other forms of analgesia are not effective. He did not approve of self-administered ketamine for pain relief and certainly not outside of hospital. In his opinion the applicant's views on medication were at the fringe of acceptable practice. In discussing the future course of the applicant's illness with him in 2007, Dr Champion recommended a new, different drug for the treatment of any recurrence, however, the applicant was not enthusiastic, preferring ketamine. He said that he would consider it. Dr Champion did not recommend cannabis as a pain relief. He said self-medication during acute illness with unusual and unconventional preparations was unwise.

68 The applicant's evidence to this Tribunal led it to the view that he regarded his self-prescription and self-administration of ketamine as expedient and preferable to medications recommended by his treating doctor. The applicant maintained his insistence that it is an appropriate analgesic in the face of Dr Champion's clear opposition to its administration outside a hospital setting.

69 The applicant said in submissions that his self-prescription of pethidine and the use of pethidine on prescriptions written in other names was " inappropriate and injudicious " brought on by the disinhibiting effect of steroids. He assured the Tribunal that he would not engage in that behaviour again.

70 The applicant's response to the issue of self-prescribing focussed on the events that, he said, caused him to self-prescribe. There was little in his evidence that recognised the significant lack of judgment in a practitioner self-prescribing and it appears, prescribing a drug of which his treating specialist did not approve. Whether or not the medical conditions that existed at the time of the conduct have abated, the respondent seemed to the Tribunal not to appreciate the gravity of this persistent lack of judgment in this conduct.

Cannabis

71 The applicant has used cannabis for pain relief and has provided it to others for the relief of pain. As to his own use, he said that he had last used it " two or three years ago " [10] for treating sciatic pain and had not used cannabis since then either for pain or for other reasons.

72 He said that he had not supplied cannabis to other people. The applicant said:

The patients who ring me up and say, "Can you help me". I said, "Regrettably no", because of the current laws in place in this country, despite that fact that there's compassionate clubs operating across the United States and Europe, I said, "Regrettably, in this current police state I'm unable to help you and I deeply regret that". [11]

Q. Doctor, the law hasn't changed, you've indicated in evidence that you will continue to be an activist, why then do you say that you wouldn't supply cannabis to patients now?

A. Because there's too much pain personally and for my family. It's a bit like if you attack a bully who's hurting someone else and you get knocked unconscious you might think twice about doing it again, not that you shouldn't do it but you feel the pain and the damage that it's done to you personally, professionally and to your family life. It's simply, at this stage, I ran up against a hard world of cold, hard hatred and irrational fears and we have to regroup and look for another way around. [12]

73 As to his own use of cannabis, the applicant said that his use was in treatment of a condition that had resolved and if he had a recurrence, he would seek access to pharmaceutical grade cannabis.

Prescribing for Family and Friends

74 The applicant was asked whether he had reconsidered his approach to prescribing schedule 8 drugs for family and friends. [13]

Q. What if somebody who didn't ...have a treating practitioner who was available to them?

A. My personal opinions and the opinions of the profession generally may differ but I accept that at least until the therapeutics of mindset changes, I'll fall into line with what's been done generally.
Q Why will you not prescribe to family members and friends accepting the limited circumstances you've set out doctor ?
A Because it has been indicated to me that that's not considered proper practice.

75 The applicant added: "...but it's a case of once bitten twice shy... " [14]

Adherence to Board imposed conditions

76 The applicant denied that he had persistently breached the condition that he undergo random urinalyses. He said that he complied with the requirement for testing for the " three months of the programme " (which was a reference to the Impaired Registrants Program) and said that he then decided that the system of random urinalyses was flawed and it was inconvenient for him to be subject to random tests when he would otherwise want to be out of the city and so had no further tests.

77 Not only is his denial inconsistent with the findings of the 2005 Medical Tribunal but it is pertinent to note that the requirement for urine testing was not limited by time as asserted by the applicant. The requirement that he have random urinalyses continued until he was de-registered in 2005. It was clear to the Tribunal that the applicant complied for what he considered a sufficient time and then simply declined to comply.

78 In his statement, the applicant said:

"..the method applied at a later date by the Board was unreasonable, in that it restricted recreational and work related activities. In hindsight, I see that the Board, driven by Dr Phillip's report, wished to constrain a psychotic potential murderer from travelling around the country. The abuse of psychiatric services was a feature of the gulag system but has no place in Sydney Australia."

79 As to whether he would comply with conditions on his registration in future, he said:

"I would dislike it because it's unnecessary. I would consider it for a very limited period of time. If the board took a - let me rethink that. I would comply but reluctantly. [15]

80 The Tribunal has no confidence that the applicant would comply with any condition imposed on his registration, other than to the extent that he considered reasonable. The Tribunal of 2005 found that his attitude to conditions was that they were negotiable and his attitude in this Tribunal was the same.

Discussion

81 It is important to observe that there has never been a complaint made about the quality of the applicant's conduct as a medical practitioner. Letters written by professional colleagues speak highly of him. Dr Bernie Hudson of the Royal North Shore Hospital described the applicant's prescribing practice as " mature, reliable and extremely dependable with respect to best practice and patient safety. " [16] He further said:

"I regularly receive positive comments from patients and medical and nursing staff at the hospital that indicate (the applicant's) manner and capability are of the highest order when dealing with patients and their relatives in both clinical and related matters. "

82 Other practitioners with whom the applicant has worked made similar comments both as to his clinical practice and his contact with patients.

83 The applicant submitted that he was a changed man. He said that in the past there had been some " glaring examples of poor decision making and poor insight into the results of those decision making... ". [17] By way of example he referred to his self-administration of pethidine.

84 As to his poor insight, the applicant said:

" Poor insight, really that I was prepared to stand outside of a majority opinion. I must admit I considered myself very much...like a goat in a sheep's paddock where a lot of people were content to walk one way but I felt free and quite unconstrained to exercise my own independence of thought and action. I still in many ways feel it is the right of every sovereign being to exercise independence of thought and action but being part of a profession which has considerable responsibility and access to technologies and pharmaceuticals of considerable strength and power, they have to be constrained so whilst maintaining and independence of thought I now accept that one does have to, to a greater or lesser degree, fall in with the herd, certainly in regard to accepted behaviour such as self-administration I have very little problem with saying that without equivocation. " [18]

85 The applicant struggled to concede that his knowing breach of the law in his cannabis use and administration to others was a matter of poor insight. He maintained that he was " testing the law " and was " impatient to bring forward progress...in Australia. " He said that he showed poor insight in his impatience with the slow progress of the law in Australia. [19] However, he added when discussing his inability to provide cannabis to others in pain:

"...but the insight was that I failed to appreciate the authoritarian stance and lack of compassion in the legal system". [20]

86 The applicant said that he had been consulting a psychiatrist to develop insight not for himself, but as to how others might see him and his conduct. No report from the psychiatrist was in evidence. His sister, Professor Kenny said that over the last 3 or 4 years, she had seen a shift in the applicant's willingness to develop some insight into his own behaviour and into the effect that he has on other people. She believed that his behaviour had toned down and he was able to show more tolerance and respect for other people and their opinions.

87 That increased tolerance and respect for the opinions and others was not altogether clear to the Tribunal. The applicant often referred to " going along with the herd " giving the clear impression that his compliance with accepted standards of his profession would be both reluctant and somewhat against his own, better informed judgment.

88 Time has passed since the respondent behaved in the way complained of. Lapse of time can be relevant to the orders made by a Tribunal. Time which has passed may persuade the Tribunal that the respondent has become a " changed person " since the conduct complained of. However as Walsh JA said in Ex Part Tziniolis: Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461:

" Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man ."

89 Lapse of time then may be relevant in determining whether the respondent has undergone a reformation of character or whether the conduct complained of was an isolated or passing departure from proper professional standards. [21]

90 There was little in the evidence before the Tribunal to support the applicant's contention that he had changed. At best, it could be said that he was reluctantly prepared to conform to the recognised standards of the medical profession.

91 The Tribunal accepts the submission of counsel for the respondent that the applicant did not accept the correctness of the Determination of the 2005 Tribunal. At every opportunity he sought to cavil with the basis of the findings and to go behind the findings to persuade the Tribunal that his view was correct. Any acceptance of inappropriate behaviour on his part was hedged and heavily qualified.

92 While rehabilitation may occur without a wholehearted acceptance of wrongdoing, it was abundantly clear to the Tribunal that the applicant maintained the view that his conduct was, in the main, correct. Assessing whether the applicant is a proper person to be registered as a medical practitioner involves (amongst other things) the consideration of whether he will, in all circumstances, conform to the accepted standards of conduct expected of a medical practitioner and not refuse to " follow the herd " if he forms the view that those expected standards are inexpedient. In all of the circumstances of this case, the Tribunal could not be so satisfied.

93 It is also relevant to take into account that the conduct which resulted in the applicant's deregistration in 2005 was not isolated. The conduct referred to in the complaints before that Tribunal occurred between 1999 and 2004 and related to a number of different aspects of conduct; inappropriate prescribing for family and friends, drug diversion and use, self-prescription and self-administration and failure to comply with conditions of registration.

94 In determining whether the applicant is a changed man as he says, it is relevant to consider his conduct since the order for de-registration.

95 Since the findings of the 2005 Tribunal, the applicant has been convicted of 4 criminal offences. Two were drug related and two were for contempt.

96 In September 2006 he was convicted of cultivating a commercial quantity of a prohibited plant. The applicant was charged with this offence in January 2005. On his conviction, he was placed on a good behaviour bond pursuant to section 9 of the Crimes (Sentencing Procedure) Act for a period of 3 years. On 11th May 2006 the applicant was charged with possessing a prohibited drug and in December 2006 he was convicted and fined.

97 The contempt charges arose out of the applicant's conduct at the conclusion of his trial on the cultivation of a large commercial quantity of cannabis. The applicant stood trial on the charge and on the return of the guilty verdict, while the jury was still in the courtroom, said: " regrettably the next generation will suffer for your ignorance ". Shortly afterwards the applicant made a statement to the media; "Australia came to prominence with the sheep industry. Unfortunately a group of 12 sheep just lost a major new industry for New South Wales."

98 The applicant represented himself on the contempt charges. He admitted that the jury was still in court when he made his first remark and that he observed several of the jurors to be upset after he made that remark.

99 The applicant was found guilty of the two counts of contempt. In his remarks on sentence, Hoeben J said that in the report that the (applicant) had declined to give information to enable a presentence report to be prepared and that:

"The defendant (applicant) made it clear ...that he would not comply with a Community Service Order or with a Periodic Detention Order. " [22]

100 In considering sentence, the his Honour noted at paragraph 15:

"The defendant has steadfastly refused to acknowledge any fault or error in relation to these offences. There has been no expression of any remorse or contrition on his part. The closest the defendant went to making an apology was when he said:
"I am sorry that the judges who have persecuted me apparently lack the decency to honour the principles of justice (moral rightness, fairness and good reason). I am sorry, though, if I have hurt the feelings of any of the jurors who were involved in my persecution, as they were simple folk operating under a cloud of ignorance and intentional misdirection."

101 Hoeben J's comments about the applicant's refusal to acknowledge fault or error are echoed in the applicant's conduct before this Tribunal.

102 Finally, the Tribunal accepts the submission of the respondent that in all of the matters which guided the 2005 Tribunal to its decision, the applicant does not appear to concede that his conduct was wrong and accept that it is not sufficient to adopt a position of compliance because " once bitten, twice shy " but to comply because there is an acceptable and legal code of conduct by which he was bound and would be bound were he to be readmitted to practice.

103 The Tribunal is not confident that the applicant would not engage in conduct that was either unlawful or unacceptable if he deemed it expedient nor has it any confidence that the applicant would conform to the accepted standards of conduct of a medical practitioner if he thought it unnecessary in the circumstances.

104 The Tribunal is not satisfied that the applicant has discharged the onus of persuading it that he is a fit and proper person to be registered as a medical practitioner.

Orders:

1. Application dismissed.

2. Applicant to pay the respondent's costs of the application.

Endnotes

1 Reasons for decision, page 14

2 page 15.3

3 Reasons for determination page 48

4 Reasons for Determination page 49

5 Ex parte Tzinolis; re the Medical Practitioners Act (1966) 67 SR 448, Zaidi v Health Care Complaints Commission [2006] NSWMT 6, Zaidi v Health Care Complaints Commission [1996] NSWMT

6 Zaidi [2006] at paragraph 42

7 Zaidi [2006] at paragraph 42

8 transcript page 31

9 Exhibit 1, tab 10

10 transcript 15th August 2009, page 24.4

11 transcript 25th August page 26 line 30

12 transcript 25th August page 36 line 10

13 transcript page 30.25

14 transcript page 31.1

15 25th August page 41 line 40

16 Ex 1 tab 15

17 transcript page 85.45

18 transcript page 86-87

19 transcript page 88

20 transcript page 89.4

21 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637

22 Remarks on Sentence- Prothonotary of the Supreme Court of NSW v Katelaris (No 2) [2008] NSWSC 702 paragraph 4

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