Medical Board of Australia v Kanapathipillai
[2016] ACAT 16
•8 March 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MEDICAL BOARD OF AUSTRALIA v KANAPATHIPILLAI
(Occupational Discipline) [2016] ACAT 16
OR 13/2015
Catchwords: OCCUPATIONAL DISCIPLINE – health practitioner regulation – general practitioner – professional misconduct – repeated drug use – effect of misrepresentations to the Board and other health practitioners – impairment – suspension of registration – conditions including psychiatric treatment, mentoring, supervision and training
Legislation:ACT Civil and Administrative Tribunal Act 2008 s 39, 48
Health Practitioner Regulation National Law (ACT) ss 5, 193, 195, 196
Cases Cited:Briginshaw v Briginshaw (1938) 6 CLR 336
Ex Parte Lenehan [1948] HCA 45
Forster v Hunter New England Area Health Service [2010] NSWCA 106
Commonwealth of Australia v Gretton [2008] NSWCA 117
HCCC v Hutchins (unreported, 31 July 2009)
Health Care Complaints Commission v Do [2014] NSWCA 307
Health Care Complaints Commission v Dr Ian McHue [2007] NSWDCMT40007/07
Health Care Complaints Commission v Greenwood [2011] NSWNMT 13Health Care Complaints Commission v Litchfield [1997] NSWSC 297
Health Care Complaints Commission v Howe [2010] NSWMT 12
Keddie v Foxall [1955] VLR 320
Latoudis v Casey [1990] HCA 59
NSW Bar Association v Maddocks NSWCA 23 August 1988, unreported
Prothonotary of Supreme Court of New South Wales v Ritchard NSWCA 31 July 1987, unreportedReimers v Health Care Complaints Commission [2012] NSWCA 317
Re Dr Than Le Medical Tribunal decision, 20 September 2001
The Medical Board of Australia v Adams [2015] ACAT 8
Tribunal: Senior Member M Brennan
Member D Byrne
Date of Orders: 8 March 2016
Date of Reasons for Decision: 8 March 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL OR 13/2015
BETWEEN:
MEDICAL BOARD OF AUSTRALIA
Applicant
AND:
DR NILANTHI KANAPATHIPILLAI
Respondent
TRIBUNAL: Senior Member M Brennan
Member D Byrne
DATE:8 March 2016
ORDER
The Tribunal Orders that:
Pursuant to section 196 of the Health Practitioner Regulation National Law (ACT) (the National Law)
(a)The respondent has behaved in a way that constitutes professional misconduct;
(b)The respondent’s registration is suspended as and from 14 October 2014 for a period of two years;
(c)Upon resumption of clinical practice the respondent’s registration is to be subject to the following 16 conditions for a period of 24 months.
A. Conditions relating to drug use and health
The respondent is to abstain from drug use other than medications prescribed by the respondent’s treating medical practitioners.
The respondent must undergo random Urine Drug Screening (UDS) in accordance with the Board’s Drug and Alcohol Screening Protocol:
(a)The frequency of the random UDS will be determined by the regime for Screening Level 4 under the Protocol, namely, one random UDS per week.
(b)After a period of 6 months, the Board may review the frequency of the UDS with a view to approving a decrease to the frequency of the UDS on receipt of evidence of ongoing negative tests and support from the respondent’s treating psychiatrist.
(c)The cost of UDS is to be borne by the respondent.
The respondent must undergo hair analysis testing in accordance with the Board’s Protocol.
(a)The respondent must provide a specimen of hair for drug analysis at a frequency determined by the regime for Screening Level 4 under the Protocol, namely, every three months.
(b)After a period of 12 months, the Board may review the frequency of the hair analysis testing.
(c)The cost of hair analysis testing is to be borne by the Board.
The respondent must maintain a treating relationship with her general practitioner.
(a)The respondent must attend her general practitioner at a frequency to be determined by her general practitioner.
(b)The general practitioner will prescribe and supervise all medications other than those prescribed by treating specialists.
(c)The respondent must provide a report written by her general practitioner to the Board every three months or as requested by the Board.
(d)The respondent must notify the Board of any change to her treating general practitioner within 7 days of the change.
(e)The costs associated with the consultations are to be borne by the respondent.
Within one month of her return to practice, the respondent must engage in a therapeutic relationship with a psychiatrist of her own choice.
(a)The respondent must attend the psychiatrist for treatment (including psychotherapy) at least once a month unless otherwise recommended by her treating psychiatrist;
(b)The respondent must provide a report written by the psychiatrist to the Board every three months or as requested by the Board.
(c)The costs associated with the treatment and reporting are to be borne by the respondent.
Within one month of her return to practice, the respondent must engage in a therapeutic relationship with a clinical psychologist of her own choice.
(a)The respondent must attend the psychologist for treatment at least once a month unless otherwise recommended by her treating psychologist;
(b)The respondent must provide a report written by the psychologist to the Board every three months or as requested by the Board.
(c)The costs associated with the treatment and reporting are to be borne by the respondent.
Within 12 months but not before 10 months of her return to practice, the respondent must attend an independent Board-appointed psychiatrist for an assessment of the respondent.
(a)The independent psychiatrist will review all relevant information from the respondent’s treating health practitioners, mentor and supervisor.
(b)The respondent must provide a report written by the independent psychologist to the Board.
(c)The respondent authorises the exchange of relevant information between the Board, independent psychiatrist, the respondent’s treating health practitioners, mentor and supervisor.
(d)The costs associated with the independent psychiatric assessment are to be borne by the Board.
Within 12 months of her return to practice, the respondent must complete the following education programs provided by the Melbourne Clinic:
(a)Anxiety Management Program; and
(b)Dialectic Behaviour Therapy Program.
(c)The cost associated with completion of these education programs is to be borne by the respondent.
(d)The respondent must provide evidence to the Board of satisfactory completion of the education programs at the end of the 12 month period.
(e)If the education programs are no longer available within the relevant 12 month period, the respondent must approach the Board for approval of equivalent alternative education programs.
The respondent must notify the Board as soon as practicable after she is aware of any material change in her health.
The respondent authorises the exchange of information between the Board, her general practitioner, psychiatrist, and psychologist.
The respondent authorises the exchange of information between the Board, her employer, supervisor and mentor in respect of the respondent’s suitability to practise.
B.Conditions relating to supervision and mentoring
The respondent may only return to practice as a medical practitioner under the supervision of a Board-approved supervisor in accordance with the Board’s Supervised practice for limited registration (SPLR) (annexed hereto and marked as Attachment B).
(a)The supervision level is to be in accordance with Level 1 Supervision under the SPLR.
(b)The respondent must nominate the supervisor in writing to the Board and the supervisor must agree to the nomination. The respondent must provide a copy of the supervisor’s Curriculum Vitae to the Board.
(c)The nominated supervisor must be approved by the Board in advance and in writing.
(d)The respondent must provide a report written by the supervisor to the Board every month or as requested by the Board, addressing the respondent’s health, conduct and performance.
(e)After a period of three months, the Board may review the frequency of reporting and level of supervision.
(f)Should the supervision relationship for any reason terminate or breakdown, the respondent must notify the Board as soon as practicable after such termination or breakdown and provide a new nomination to the Board.
Within one month of her return to practice, the respondent must meet with a Board-approved mentor for ongoing professional mentoring in respect of ethics, professionalism, collegiality, honesty and open disclosure.
(a)The respondent must nominate the mentor in writing to the Board and the mentor must agree to the nomination.
(b)The nominated supervisor must be approved by the Board in advance and in writing.
(c)The respondent must meet with the mentor for no less than one hour every calendar month.
(d)The respondent must provide a report written by the mentor to the Board every two months or as requested by the Board.
(e)After a period of six months, the Board may review the frequency of reporting and mentoring.
(f)Should the mentoring relationship for any reason terminate or breakdown, the respondent must notify the Board as soon as practicable after such termination or breakdown and provide a new nomination to the Board.
C. Conditions relating to education
Within 12 months of her return to practice, the respondent must complete the following education programs provided by the Cognitive Institute:
(a)Difficult Colleague Interactions Masterclass.
(b)Mastering Difficult Colleague Interactions Workshop.
(c)Mastering Professional Interactions.
(d)The cost associated with completion of these education programs is to be borne by the respondent.
(e)The respondent must provide evidence to the Board of satisfactory completion of the education programs at the end of the 12 month period.
(f)If the education programs are no longer available within the relevant 12 month period, the respondent must approach the Board for approval of equivalent alternative education programs.
D.General conditions
The respondent will provide a copy of these conditions to her employer(s) within seven days of their imposition.
The respondent will ensure her employer(s) provide the Board an acknowledgment of receipt of conditions within 7 days of receiving a copy of the conditions.
The practitioner pay the Board’s costs of these proceedings as agreed, or if not agreed, costs will be fixed by the tribunal on the recommendation of the Registrar following an assessment of costs by the Registrar at the scale applicable for Supreme Court matters on a party/party basis.
Pursuant to s 39(3) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) the publication of evidence given at the hearing of this application, or of matters contained in documents filed with the tribunal, or received in evidence by the tribunal for the hearing, that identifies or tends to identify the nurse working at National Capital Private Hospital and whose statement is document 14 in the applicant’s list documents is prohibited. This person shall be referred to as ‘the nurse’.
……………………… ………………………
Senior Member M Brennan Member D Byrne
REASONS FOR DECISION
Introduction
The practitioner gained registration to practice medicine in Australia on 7 December 2001 and worked in a range of hospitals including National Capital Private Hospital (NCPH) and Rockhampton Base Hospital (RBH). The Medical Board of Australia (the Board) referred her case to this tribunal after reaching the view that her actions over a lengthy period constituted professional misconduct. This conduct included repeated drug use and misleading the Board and other health practitioners, to whom she had been referred, about this use on several occasions.
After the Board filed and served the application for disciplinary action, the practitioner made a number of admissions and agreed that her behaviour over an extended time constituted professional misconduct. She denied a specific allegation of procuring illicit drugs whilst working at NCPH on 1 July 2014 and that she had continued to use such drugs after 22 August 2014.
The Tribunal’s task is to be satisfied that the practitioner’s behaviour constitutes professional misconduct. As part of this it also has to consider the specific allegations around her purchasing drugs from work and whether the evidence establishes that she used illicit drugs after 22 August 2014. There is also extensive evidence on whether the practitioner suffers from an impairment. The Tribunal must also consider these issues in deciding whether the practitioner’s registration should be cancelled, as submitted by the Board, suspended for a period of time or whether the practitioner should be subject to a series of conditions, as she has proposed.
The application
By way of application dated 1 May 2015, the Board sought the following orders:
(a)that the practitioner has engaged in professional misconduct, or in the alternative, unprofessional conduct;
(b)that the practitioner’s registration as a medical practitioner be cancelled; and
(c)that the practitioner pay the Board’s costs of, and incidental to, this application.
At the hearing the Board handed up a document seeking the following findings and orders.
(a)Pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (ACT) (‘National Law’) the Tribunal find that the practitioner has behaved in a way that constitutes professional misconduct.
(b)Pursuant to section 196(2)(e) of the National Law the practitioner’s registration be cancelled as and from 14 October 2014 for a period of 2 years.
In the alternative:
(c) Pursuant to section 196(2)(d) of the National Law the practitioner’s registration be suspended as and from 14 October 2014 for a period of 2 years.
In the alternative:
(d) Pursuant to section 196(2)(b) of the National Law conditions be imposed on the practitioner’s registration until 15 October 2016 covering the practitioner’s drug use and health; supervision and mentoring; education and the requirement to advise any future employer about the conditions.
Background
The practitioner was first registered to practice medicine in Australia on 7 December 2001. Prior to the notifications which led to this application being filed, the practitioner was investigated by the Medical Council of New South Wales (Medical Council) in 2013 for poor professional behaviour and language used with colleagues and patients.
The Medical Council referred the practitioner to psychiatrist Dr Bruce Westmore. During an assessment on 4 June 2013 Dr Westmore recorded that the practitioner advised him that she drank socially on the weekends and did not use illicit drugs. In his report of 10 June 2013 Dr Westmore opined that the practitioner had a personality disorder.
As a result of the practitioner moving to Canberra, the Medical Council referred the matter to the Board. At its February 2014 meeting the Board resolved that it would impose conditions on the practitioner’s practice. After being invited to make any submission about the proposed conditions, the practitioner declined and said she would commence treatment with a psychiatrist. The conditions the Board decided to impose on the practitioner’s registration at its May meeting included that she develop and maintain a relationship with a psychiatrist and ensure that the psychiatrist provides reports to the Board every six months or as requested.
Between 10 September 2013 and 11 August 2014 the practitioner was employed as an intensive care registrar at NCPH. On 11 August 2014 the Board received a notification from the general manager alleging the respondent had disclosed her use of illicit drugs to colleagues and had used a co-worker’s mobile phone whilst at work to access Facebook to arrange the purchase of methamphetamines. The notifier also advised the Board that the practitioner had admitted that she had used ice once and occasionally used marijuana and alcohol to excess.
The Board met on 14 August and proposed to take immediate action to suspend the practitioner’s registration and investigate the matter. The practitioner was invited to make a submission in response. She provided a sworn affidavit on 21 August 2014 which included advising the Board that she had tried cannabis only once in March 2014 and that she believed the Facebook entries found by her colleague were made by her former partner who had ongoing substance abuse issues.
The Board met again on 21 August and the practitioner appeared before the members. She denied using illicit drugs and provided letters of support from other colleagues. After considering the evidence before it, the Board decided not to take immediate action to suspend the practitioner’s registration. Instead it directed her to undergo a health assessment and hair strand drug testing.
On 29 August the Medical Council received a notification from the practitioner’s treating psychiatrist Dr Helen Proskurin. As Dr Proskurin understood that the practitioner was to shortly commence work at RBH the Medical Council forwarded the notification to the Queensland Office of the Health Ombudsman on the day it was notified. On the same day this office referred the matter to AHPRA. As the practitioner’s principal place of practice was still listed on the national register as the NCPH, the ACT office was given the notification.
The notification included that Dr Proskurin had been treating the practitioner since May 2014. She was aware of the Board’s conditions and had recently formed the view that the practitioner had a drug problem that was likely to impact on her medical practice. The practitioner had advised Dr Proskurin that she had misled the Board about her drug use and told her that she was using cannabis.
From 1 September the practitioner was employed as an intensive care registrar at the RBH.
On 3 September the Board met to consider Dr Proskurin’s notification. It considered the practitioner’s registration should be suspended while it investigated. Again the practitioner was invited to make a submission to the Board. She advised the Board she wished to do so. By way of email following this advice, the Board advised the practitioner that they wished to collect a hair strand for the purposes of drug testing. This sample was taken on 11 September with a request to test for the presence of amphetamines, benzodiazepines, cocaine and methamphetamines.
Also on 11 September the practitioner appeared before the Board and provided another sworn affidavit dated the same date. The affidavit included evidence that after being advised by the Board on 21 August that her registration was not going to be suspended, she celebrated, drank a lot of alcohol, smoked two joints and took two MDMA capsules. The practitioner said this was a stupid error of judgment and that during her last consultation with Dr Proskurin she shared this with her, as well as her drug use at the gay mardi gras in March. She denied misleading the Board about her drug use and offered to have random urine tests in the future.
The Board considered this evidence and decided for a second time not to suspend the practitioner’s registration. It took immediate action to impose a series of conditions including that the practitioner could not use illicit drugs and that her work, limited to the RBH, must be always be subject to clinical oversight by a senior practitioner. When asked if she had any submissions in response, the practitioner offered to provide an undertaking to the Board in accordance with the conditions proposed, which was provided by her on 16 September.
On 18 September the Board received the results of the hair strand analysis which were positive for methamphetamines and MDMA (including ecstasy) from 9 March - 7 June 2014 and 7 June - 5 September 2014. The results did not indicate when, during the periods, the drugs were taken or the quantity used. Given the results, more detailed analysis was requested on a month by month basis.
On 25 September AHPRA learnt that the practitioner had failed to advise RBH of the conditions imposed on her registration. On the same day the practitioner’s employment was terminated.
On 30 September the more detailed analysis of the practitioner’s hair strand was provided revealing positive results for MDMA and methamphetamines for each month from 9 March to 5 September 2014.
On 3 October the practitioner requested the Board review her undertaking of 16 September as her employment with RBH had been terminated and further, that onsite supervision not be required as no senior practitioners were available for the night shift work she had been offered.
On 9 October the Board resolved to suspend the practitioner’s registration given the apparent inconsistencies between her account of drug use and the hair testing results. It also considered regular use of MDMA and methamphetamines by a practising medical practitioner posed an unacceptable risk to the public.
The practitioner responded to the Board’s proposed action in writing on 13 October. She admitted taking MDMA every three weeks since the March mardi gras when she was in Sydney on her days off, the practitioner asserted that the drug was irrelevant to her day to day clinical practice and that she had previously lied about the frequency of her use. The practitioner again asked the condition around supervision be reviewed given the difficulties the requirement posed for future employment.
On 14 October the Board decided to suspend the practitioner’s registration whilst its investigation was continued and directed her to undergo a psychiatric and drug and alcohol assessment. In its decision the Board considered that the practitioner had failed to demonstrate insight into the seriousness of her actions, it was also concerned that it still did not know the exact nature of the drugs she had used or their frequency, which could have a significant impact on her clinical practice.
On 28 October further testing of the practitioner’s hair sample was undertaken to test for drug use in 2013 and the first quarter of 2014. The Board received a report dated 4 November, which showed between September and December 2013 there was evidence of cannabinoids, MDMA and methamphetamines. The same results were given for testing between December and March 2014.
On 25 November 2014 the practitioner saw Associate Professor Jeffrey Looi, a neuropsychiatrist. He assessed the practitioner as having a health impairment of at least hazardous substance use, specifically MDMA, methamphetamines and cannabis and that this use posed a significant risk to her health and to the public from the direct effects of intoxication and withdrawal. He considered the practitioner’s substance use should be assessed and regularly monitored by an addiction medical specialist supervised through the Board. He also recommended psychological treatment of the diagnosed impairment of personality disorder supervised by a psychiatrist arranged by the Board.
On 26 November 2014 the practitioner attended an assessment with Dr Saba Javed, staff specialist at the Canberra Hospital Alcohol and Drug Service. He reported that the practitioner advised him that she used cannabis once every six months since 2000 and between August 2013 and August 2014 she used it approximately once every two to three weeks when she was not working. The practitioner also advised Dr Javed that she used MDMA from March 2013 every two to three weeks. Dr Javed found the practitioner had a substance abuse disorder but that he could not identify any imminent risk to the public.
On 18 December the Board asked the practitioner if she wished to make any final submission in response to the investigation undertaken. In a written response of 6 January 2015 the practitioner advised the Board that she had been dishonest about the frequency of her drug use, including that she had not used between the March mardi gras and 22 August 2014. She appreciated that neurotoxic drugs such as MDMA and methamphetamines are incompatible with working in any medical specialty.
The Board formed the view on 21 January 2015 that the practitioner had engaged in professional misconduct as defined in section 5 of the National Law and that the matter must be referred to this tribunal pursuant to section 193. It considered any registration conditions would not adequately protect the public due to the practitioner’s continued dishonesty and lack of insight.
Admissions by the practitioner
By way of letter dated 22 May 2015 to the Board the practitioner admitted the particulars set out in the first nine paragraphs of the application and in so doing, conceded that her conduct cumulatively amounted to professional misconduct as defined in section 5 of the National Law.
The practitioner denied that she used a colleague’s telephone at work on 1 July 2014 to procure methamphetamines. She said she used the phone to check her Facebook account. The practitioner further claimed that messages accessed by her colleague on the Facebook account were sent a number of months earlier when the practitioner was not on duty.
Issues in dispute
Did the practitioner use her colleague’s mobile phone to procure methamphetamines at work on 1 July 2014?
The evidence in support of this allegation comes from a nurse who worked with the practitioner at NCP from March 2014. She advised Ms Porritt on 4 August 2014 that after finishing her shift on 1 July 2014 she noticed receiving a new message on Facebook. On accessing the message, the nurse was confused by a text sent from ‘Aaron’, whom she did not know. She recalled that the practitioner had asked to borrow her mobile phone earlier that day and assumed the practitioner had not logged out of her own Facebook account. The nurse examined the thread of messages prior to the new message and was concerned to read the following entry from the practitioner: “Cool. Ice will keep me going all night through.”
The nurse took a screen shot of this message and others in the chain. She also took a screen shot of entries on 16 March between the practitioner and ‘Nikolas’. The screen shots indicate the time that the nurse took them, being 11.24pm and 11.46pm respectively. The messages are requests from the practitioner to Aaron for “drugs” and to Nikolas for “ice”.
The practitioner denies she sent Aaron a message seeking any illicit drugs on 1 July 2014. Initially she advised the Board that her partner at the time had used her Facebook profile to send these messages and so they had not originated from her. She later withdrew this statement, admitting she was the author but said the messages were sent at an earlier date than 1 July 2014 and not whilst she was at work.
The Board filed a statement from the nurse dated 17 October 2015. The nurse also gave evidence by telephone. She advised that she did not take a screen shot of the initial message which alerted her to the fact that the practitioner had not signed out of her Facebook page earlier that day. She could only recall it was sent by ‘Aaron’. She had no memory of what it said. She was also uncertain how far up the thread of messages she read: “Cool. Ice will keep me going all night through.” The nurse initially said in cross-examination that it was only “a few swipes” up the chain of messages and then later, that it was perhaps “one swipe.”
In cross-examination the nurse also revealed that she was uncertain of the date the practitioner borrowed her telephone and could not remember the day of the week either. This evidence conflicted with paragraph 11 of her statement which included the following: “It appeared to me that the message had been sent by Nilanthi that day on 1 July 2014, although the message is not date stamped.” When asked about this inconsistency by the practitioner’s counsel, the nurse expressed “annoyance” that she had signed her statement “in haste” and that she could not remember the date.
Given the lack of any date stamp on the screen shot messages, coupled with nurse’s retraction of part of paragraph 11 of her 17 October 2015 statement, the Tribunal does not find there is sufficient evidence to support a finding that the practitioner procured illicit drugs at work on 1 July 2014 or whilst at work at all. The nurse’s reporting of what she had discovered to her employer on 8 August 2015 establishes that she discovered the practitioner’s Facebook messages some time prior to this date. The nurse stated that she thought that she made the discovery less than five weeks prior to reporting the event, giving further doubt to the precise date that the practitioner used the nurse’s phone to access her own Facebook page. That is, on the basis of the nurse’s recollection of when she came forward to her employer, she thought it was far closer to 8 August than 1 July.
The Tribunal suspects, given the nurse’s concerns for the practitioner’s patients that she is unlikely to have waited five weeks to report the information she had learnt, which leads it to further doubt 1 July was the date the alleged conduct occurred. The Tribunal found the nurse to be a very genuine witness who clearly had concerns about the effect of her notification on the practitioner’s career but also understood the risks to those in the practitioner’s care. The Tribunal also considered that the nurse did her best to answer a series of questions at the hearing about her discovery 14 months earlier.
The Tribunal notes the Board’s written submission that the practitioner accessed her Facebook page for the purpose of sending some communication on the date she borrowed the nurse’s phone otherwise there did not appear to have been a reason to have accessed her page. The Tribunal agrees this is likely, however, the sufficient doubts about the date any message was sent coupled with no evidence on the reply by ‘Aaron’ to any communication the practitioner forwarded, leads it to find that it cannot be certain on the balance of probabilities that the practitioner used the nurse’s phone to obtain illicit drugs on 1 July.
Finally, the Tribunal is troubled by the nurse’s oral evidence that she brought the error in paragraph 11 to the Board’s attention “a few days after [she’d] sent the statement” and this was not corrected prior to or at the start of the hearing. It is also concerned with the nurse’s evidence that she executed the statement without the annexures being attached. These revelations added to the Tribunal’s doubts about this allegation.
Did the practitioner use any illicit drugs after 22 August 2014?
The practitioner advised the Board, other health practitioners she saw and this tribunal that she had not taken any illicit drugs since 22 August 2014. She arranged for further hair testing with the same laboratory used by the Board on 13 July 2015 to test for the preceding ten months. Three hair sections measuring three centimetres each were analysed representing the approximate time periods: 8 April 2015 - 7 July 2015; 8 January 2015 - to 8 April 2015; and 10 October 2014 - 8 January 2015. Cannabis and methamphetamines, including ecstasy were detected in the earliest two hair sections and not from April - July 2015.
The Tribunal considers that this issue is an important one in considering the protective orders to be made. If the practitioner continued to take illicit drugs after 22 August 2014 it means she has lied to the applicant and this Tribunal, her rehabilitation remains questionable and she is clearly a greater risk to future patients due to her drug use.
Dr Lolita Tsanaclis, a pharmacologist with the testing laboratory, opined in a report dated 27 July 2015 that the results indicated a decrease in methamphetamine use, as the levels were lower compared to other positive samples tested. Dr Tsanaclis noted the calculation of the section dates assumed a growth rate of 1 centimetre per month and between individuals, growth can vary from 0.7 to 1.5 centimetre per month. She also noted that it is possible that cannabis and methamphetamines had been used at an earlier time than in the minimum approximate period indicated. This is because when drugs are ceased drug levels can quickly drop but remain detectable for some months due to the proportion of hair in the resting phase. That is, in this phase, hair is not growing but contains traces of drugs from previous use.
The practitioner briefed Dr Michael Robertson, a toxicologist who provided a written report dated 12 August 2015 and gave evidence at the hearing. Dr Robertson concurred with Dr Tsanaclis’ view that variations in hair growth are between 0.7 centimetres to 1.5 centimetres a month. He also noted that approximately 10-15% of hair is dormant at any time and that test results will be effected by any residual amount of hair left on the scalp after cutting. The area of the scalp from where the hair is removed is also relevant. Dr Robertson concluded that given these variables, it is reasonably possible that the positive results for two of the three periods may be due to drug use prior to or after 10 October 2014. Under cross-examination he agreed that if a hair growth rate of 1.5 centimetres is assumed it is more likely that the practitioner reused methamphetamines after 22 August 2014 and also that if the hair samples were taken close to the scalp and a growth rate of 1 centimetre is assumed, it is also likely she used such drugs after August 2014.
The Board retained Dr Dimitri Gerostamoulos, toxicologist and pharmacologist to provide an opinion on the test results and to respond to Dr Robertson’s opinion. Dr Gerostamoulos provided a report dated 5 October 2015 and he gave evidence by telephone at the hearing. He agreed with the other two experts that hair can grow on average between 0.7 centimetres to 1.5 centimetres per month and added that all hair does not grow at the same rate. However, he noted the general acceptance for many years of using 1 centimetre per month in testing. Dr Gerostamoulos also stated that less than .5 centimetres is usually left uncut from a donor’s scalp and this does not have a huge bearing on the estimated time detection window. He conceded some drugs, such as cannabis, can take up to three months to grow out of hair once the user abstains. Importantly, Dr Gerostamoulos concluded that even allowing for some variance in the detection time window of a month, due to variable growth rates and collection procedures, the results showed that cannabis and methamphetamines were used in the three – nine month period prior to collection. He considered it more likely than not that the practitioner had used cannabis and methamphetamines after October 2014 and up to April 2015. Dr Gerostamoulos referred to a study where the majority of chronic methamphetamine users had positive hair results 90 days after abstinence and 16% of the study did after 120 days. There was detailed discussion on the application of this study to the practitioner. The Tribunal notes the study involved chronic users, which the practitioner was not and so considers the study does not provide persuasive evidence that she may have ceased using up to 120 days prior to the testing simply because of the study’s results.
The Board obtained a statement from Ms Cheryl Jones, the director of the company which took the hair sample from the practitioner. Ms Jones undertook this collection on 13 July 2015. Her uncontested evidence was that she and her staff select a lock of hair from the crown of the donor’s head and cut as close to the scalp as possible without cutting the skin. She estimates there would be no more than 1 millimetre of hair left on the scalp for most collections.
The Tribunal was surprised that there is not greater certainty around hair test procedures and also no clear Australian guidelines for collection and analysis given the significant impact the results may have on the donor. It does not have to decide, nor can it safely decide, precisely when the practitioner last used illicit drugs up to 7 July 2015. The Tribunal was assisted by the evidence of the three experts regarding the variables in hair testing results. It was also aided by Ms Jones’ unchallenged evidence on the collection method employed.
Based on the entirety of the testimony, the Tribunal is satisfied, on the balance of probabilities, that the practitioner used methamphetamines and cannabis after 22 August 2014, even allowing for the variables raised particularly by Dr Robertson. Given those variables, it is not comfortably satisfied of use beyond January 2015 where it also notes the traces of methamphetamines found was half that of the earlier period. The cannabis result was the same for both periods. The Tribunal found the practitioner’s submission that she would not have initiated the results nor served the laboratories’ findings on the Board if she had taken drugs after 22 August 2014 had merit. However, it considers the analysis of the results given by the three scientists means it is more likely than not that the practitioner used methamphetamines and cannabis after 22 August 2014.
Does the practitioner suffer an impairment?
The Tribunal was provided with evidence from Board appointed psychiatrists and the practitioner’s treating health providers. The practitioner admits she suffers an impairment that could be in the nature of a personality disorder.
The Tribunal has carefully considered the evidence on the practitioner’s mental state both prior to notifications of alleged misconduct and following action taken by the Board in suspending her registration. The Tribunal notes, as set out in earlier sections of this decision, that the practitioner had a long involvement with mental health practitioners (psychiatrists, psychologists and counselors) in regard to psychological difficulties she has experienced over a protracted period of time.
These difficulties include her incapacity to establish and maintain mature and lasting interpersonal relationships, issues involving anger and arrogance in her treatment of co-workers, the experience of anxiety and depression and the use of illicit drugs. Relationship issues were the focus of the practitioner’s consultations with Dr Proskurin and with counselors provided by an EAP program. Written assessments of the practitioner’s psychological state by Associate Professor Looi, Dr Javed (in particular relation to the use of illicit drugs), Dr Westmore, Dr Knox, Dr Short and Mr Johnson were tendered. In addition, Dr Knox, Dr Short and Mr Johnson, the last two currently providing psychiatric and psychological treatment for the practitioner, gave oral evidence to the Tribunal during the hearing.
Dr Javed’s report of 27 November 2014 diagnosed a substance use disorder – MDMA. Dr Javed is a specialist psychiatrist practicing in the alcohol and drug area. Dr Westmore’s report (dated 10 June 2013) stated that the practitioner suffered an impairment and offered a formal psychiatric diagnosis of Personality Disorder Not Otherwise Specified (made according to criteria specified in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM)). Associate Professor Looi (report dated 25 November 2014) opined that there was not, in his view, sufficient longitudinal evidence for him to formally diagnose a personality disorder, but added that “… this view does not in any way necessarily disagree with Dr Westmore’s assessment and diagnosis.”
Dr Short’s report (dated 8 October 2015) noted “adjustment issues and interpersonal difficulties,” and offered a diagnosis of Adjustment Disorder, but did not proceed to a formal psychiatric diagnosis of Personality Disorder. In oral evidence to the Tribunal, however, Dr Short expressed the view that the practitioner exhibited Narcissistic Personality Traits which did not necessarily amount to a formal diagnosis of Narcissistic Personality Disorder. Mr Johnson’s report (dated 26 September 2015) addressed difficulties in emotional regulation and lying, again without proceeding to a formal diagnosis of Personality Disorder. During the hearing Mr Johnson gave evidence that the practitioner evidenced signs of either Borderline Personality Disorder or Narcissistic Personality Disorder.
Dr Knox’s report dated 19 October 2015 was more explicit in this regard, offering the formal psychiatric diagnosis of Narcissistic Personality Disorder (made according to criteria specified in the DSM – Fifth Edition). Based on his clinical examination of the practitioner, Dr Knox provided the Tribunal with a clear clinical picture of Narcissistic Personality Disorder made against both the standard clinical criteria[1] and the Alternative DSM V Model for Personality Disorders.[2]
[1] DSM V pages 669-670
[2] DSM V pages 767-768
On the basis of the psychiatric and psychological evidence generally, but guided particularly by the opinion expressed by Dr Knox more specifically, the Tribunal is persuaded that the practitioner suffers from a Personality Disorder, and most likely from Narcissistic Personality Disorder. Dr Knox also expressed the view, again accepted by the Tribunal, that while the practitioner also suffered from a Substance Use Disorder, this was secondary to an over-lying Personality Disorder.
The issue of insight or whether or not the practitioner now accepts both the formal diagnoses of a mental disorder, and whether in particular she now accepts the deleterious effects of illicit drug use on her performance as a medical practitioner, was also raised in expert testimony and in evidence given to the Tribunal by the practitioner, herself. Lack of insight is implicit in the formal diagnostic criteria establishing a Narcissistic Personality Disorder. Expert opinion was divided on whether the practitioner showed insight into her conditions and the effects they may have on her performance as a medical practitioner. Both Dr Short and Mr Johnson expressed the view that the practitioner had at least developed some insight into her impairments, but Dr Knox opined in his report that:
I believe that on account of Narcissistic traits Dr Kanapathipillai had not recognised her obligations as a medical practitioner, and responsible person, to own her behavioural disturbance as unsatisfactory, and set about changing it …
‘Good Medical Practice: A Code of Conduct for Doctors in Australia’ details a number of expectations of registered medical practitioners. These include at paragraph 1.4:
Professionalism embodies all the qualities described here, and includes self-awareness and self-reflection. Doctors are expected to reflect regularly on whether they are practising effectively and what is happening in their relationships with patients and colleagues and on their own health and wellbeing…
Paragraph 9.2. includes:
Good medical practice involves seeking independent, objective advice when you need medical care, and being aware of the risks of self-diagnosis and self-treatment” and “if you know or suspect you have a health condition or impairment that could adversely affect your judgment, performance of a patient’s health… consulting your doctor about whether and in what ways, you may need to modify your practice, and following the doctor’s advice.
The practitioner’s suspension to practice medicine since August 2014 has given her the opportunity to reflect on her past conduct and seek help from other health practitioners. However, the Tribunal remains uncertain as to whether the practitioner has full insight into her mental conditions and the effects they may have on her performance as a medical practitioner. The orders made reflect this.
Standard of proof
The Medical Board has the onus of establishing that the practitioner’s behaviour constitutes professional misconduct. The standard of proof is the civil standard as explained in Briginshaw v Briginshaw (1938) 6 CLR 336, see also Forster v Hunter New England Area Health Service [2010] NSWCA 106. Given the seriousness of the allegations and the potential gravity of their consequences for the practitioner, the Tribunal must be comfortably satisfied that the grounds set out in the application are established.
Nature of the Jurisdiction
The jurisdiction exercised by the tribunal is protective, not punitive.[3] A key objective of the National Law is to provide 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.
[3] Health Care Complaints Commission v Litchfield [1997] NSWSC 297
The tribunal also has a role in protecting the public through deterring other practitioners from engaging in similar conduct as the respondent to these proceedings. It is also important that public confidence in the profession is maintained and that high professional standards are fostered.[4]
[4] Health Care Complaints Commission v Howe [2010] NSWMT 12
Sub-section 196(1)(b)(iii) of the National Law empowers the Tribunal to decide that a practitioner has behaved in a way that constitutes professional misconduct and/or whether a practitioner has an impairment.[5]
Professional misconduct
[5] Sub-section 196(1)(b)(iv)
The Tribunal notes the practitioner’s admission that her cumulative behaviour constitutes professional misconduct. It is very comfortably satisfied that this is also the case, finding her extended drug use and repeated misrepresentations to the Board, other health practitioners and RBH constitutes a very serious contravention of the National Law.
Impairment
The Tribunal also finds after reviewing the evidence of a number of psychiatrists, other health practitioners and additionally, the pattern of behavior shown by the practitioner, that she has an impairment. It notes the practitioner accepts the impairment could be in the nature of a personality disorder. She considers it goes some way to explaining, though not justifying, her immature and dangerous drug use. The practitioner further submitted this impairment may also explain her attempts to dishonestly hide her drug use once NCPH raised its concerns with her.
The Tribunal considers that the practitioner must undergo further treatment in accordance with conditions relating to drug use and health proposed by the Board in the document entitled ‘Findings & Orders sought by the Applicant Medical Board’ tendered at the hearing. In written submissions the practitioner did not oppose the content of the draft conditions.
The relationship between professional misconduct and an impairment has been discussed in a number of cases including the NSW Court of Appeal decision of Reimers v Health Care Complaints Commission [2012] NSWCA 317. In that case the appellant anesthetist appealed the decision deregistering him, which included an order that he not reapply for registration for ten years. In dismissing his submission that a finding of impairment due to a substance abuse disorder precluded a finding of professional misconduct, Basten JA with whom Campbell and Hoeben JJA agreed, reasoned at [14]: “An impairment may manifest itself in conduct or to reverse the relationship, an impairment may explain particular conduct in part or in whole.”
Protective orders
Sub-section 196(2) of the National Law details the powers of the Tribunal after making a finding under sub-section 196(1)(b). These include imposing a range of conditions on the practitioner’s registration, such as requiring the practitioner to undertake a period of supervised practice. The powers also extend to suspension of the practitioner’s registration for a specified period or cancelling the registration.
Pursuant to sub-section 196(3) if any conditions are imposed on the practitioner’s registration, there must be a review period for any conditions. Further, if the Tribunal decides to cancel the practitioner’s registration, it may also decide to disqualify the practitioner from applying for registration for a specified period.[6]
[6] Section 196(4)(a)
In the document entitled ‘Findings and Orders sought by the Applicant Medical Board’ the Board asked the Tribunal to cancel the practitioner’s registration for two years from 14 October 2014. In the alternative, the applicant sought the practitioner’s registration be suspended for two years from the same date. As a further alternative, the Tribunal was asked to pose a series of detailed conditions on the practitioner’s registration until 15 October 2016.
The Board referred the Tribunal to the case of Healthcare Complaints Commission v Dr Ian McHue [2007] NSWDMCT 40007/07. In this decision the tribunal ordered that Dr McHue’s name be removed from the Register and that he not be permitted to apply for a review of those orders for two years from the date of the decision. The Tribunal found that the respondent medical practitioner had deliberately misled his treating psychiatrist, the Board and the tribunal in relation to his consumption of alcohol. It noted at [45]:
Without honest dealing by such practitioners the entire system developed to benefit both public and practitioner will be imperilled. Practitioners whose conduct of medicine is called into question must appreciate that this Tribunal may treat dishonest statements and explanations to the Board, to Panels and experts appointed by the Board and to this Tribunal as justifying suspension or deregistration even where the original conduct may well not have of itself led to such a result.
Clearly there are similarities between that respondent and the practitioner in this case.
Further, the Tribunal notes the case of Re Dr Than Le[7] where the tribunal commented on conditions made:
Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly. Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, ‘containing as it does a grave criticism of the standard of the practitioner’s conduct’.
[7] Medical Tribunal decision, 20 September 2001 at [95]
The Tribunal considers that deterrence to other practitioners is one of its important functions. In the New South Wales Court of Appeal decision of Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA with whom Basten JA and Emmett JJ concurred, discussed both the value of deterrence and the importance of public confidence and noted at [35]:
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining the standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
The Tribunal carefully considered cancelling the practitioner’s registration for the period of time pressed by the Board. It noted a number of decisions to which it was referred by the practitioner’s counsel indicating that cancelling registration or removing a respondent from the roll (as in the case of legal practitioners) usually implies a finding that the respondent is indefinitely disqualified from practising and if this is not the conclusion reached, the practitioner should not be disqualified or removed from the roll.[8]
[8] See for example NSW Bar Association v Maddocks [1988] NSWCA 23 August 1988, unreported
Similarly in NSW Bar Association v Maddocks NSWCA 23 August 1988, unreported, the NSW Medical Tribunal reasoned at [63]:
The authorities clearly establish that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit for protective purpose, this Tribunal needs to find that the practitioner is probably permanently unfit to practice.
Further in Prothonotary of Supreme Court of New South Wales v Ritchard[9] it was held that “if the Court is not persuaded the practitioner is permanently unfit to practice, then the proper order will usually be one of suspension or fine instead of removal.”
[9] NSWCA 31 July 1987, unreported
The practitioner’s counsel also referred the Tribunal to the decision of Re Lenehan [1948] HCA 45 where Latham CJ, Dixon and Williams JJ noted at [27] that:
when a person who has been struck off the Roll applies for reinstatement (she)/he is in a more disadvantageous position than an original applicant because (she)/he must displace the decision as to probable, permanent unfitness which was the basis of the removal.
The Tribunal does not consider the evidence, including those from an array of health practitioners, points to the practitioner being permanently unfit to practise. On returning to Melbourne she has also started seeing a psychologist and psychiatrist and appears to have the support of her family. However, the practitioner’s repeated failure to follow conditions imposed by the Board, leads the Tribunal to decide that the imposition of further conditions, as proposed by the practitioner, would be an inadequate means of protecting the public. The Tribunal also considers that to deter the practitioner from reengaging in her previous conduct, that at the very least, she must be suspended from seeking reregistration for the two year period proposed by the Board.
The Tribunal also considers that if the practitioner applies to be re-registered after 14 October 2016 that she should be subject to the extensive conditions drafted by the Board and which she did not oppose, which are detailed at the beginning of these reasons for decision. These conditions cover the practitioner’s drug use and general health, supervision and mentoring, education and requirements to notify any future employer. The Tribunal has added an additional condition at order 8 to pick up the recommendations of her treating psychiatrist, Dr Short that she undertake two programs offered by the Melbourne Clinic on anxiety management and dialectic behaviour therapy.
Costs
The Board seeks an order that the practitioner pay its costs of and incidental to the proceedings. Section 48 of the ACAT Act provides that the parties to an application must bear their own costs unless this Act otherwise provides or the Tribunal otherwise orders. Section 57 of the ACAT Act details that an authorising law may set out the powers of the tribunal, and the decisions it may make under the authorising law.
The Tribunal’s power to hear and determine applications involving members of health professions falling under the national registration scheme comes from the National Law. As such, it is an authorising law, contemplated by section 57 of the ACAT Act setting out the powers and decisions the tribunal may make. Section 195 of the National Law gives guidance to the tribunal in considering costs in providing that the tribunal may make any order about costs it considers appropriate for the proceedings. As such, it gives the tribunal a discretion in relation to costs orders.
Section 195 of the National Law gives further guidance to the Tribunal in providing that the Tribunal may make any order about costs it considers appropriate for the proceedings.
The Tribunal notes the High Court authority of Latoudis v Casey [1990] HCA 59 where McHugh J reasoned in relation to cost at [6] that:
Even when the discretion is uncontrolled, civil courts act on the basis that a successful party has a reasonable expectation of obtaining an order for costs and that the discretion to refuse to award costs should not be exercised against a successful party expect for reason connected with the case.
The Latoudis decision has been applied in many cases involving health practitioners in New South Wales, Victoria and Queensland. This Tribunal has also previously made costs orders in favour of a national board, see Medical Board of Australia v Adams [2015] ACAT 8
As is the case involving this practitioner, the respondent in Adams had misled the Board about his drug use. The Tribunal agrees with the Board’s submission in this case that if the practitioner had taken the opportunities given to her by the Board on two occasions when they had previously proposed suspension, these proceedings would not have been necessary.
The Tribunal notes the practitioner’s submission that costs should not be awarded due to the Board’s pursuit of the allegation that the practitioner used a colleague’s phone at work to procure drugs on 1 July 2014. As detailed, the Tribunal does not find this allegation is proven. However, it does not consider the pursuit of this ground was calculated to occasion unnecessary expense[10] or was so unfair as to result in a departure from the ordinary rule.[11]
[10] Keddie v Foxall [1955] VLR 320 at 323-4
[11] Commonwealth of Australia v Gretton [2008] NSWCA 117 at [121]
The Board had clear evidence that the practitioner had used a colleague’s phone to procure drugs. It was the evidence that led to the initial notification to the Board. The evidence did not support the date this procurement occurred but it was still important evidence in the board’s application against the practitioner generally.
Further, in view of the findings of serious misconduct, the Tribunal orders the practitioner pay the Board’s costs of these proceedings as agreed, or if not agreed, costs will be fixed by the tribunal on the recommendation of the Registrar following an assessment of costs by the Registrar at the scale applicable for Supreme Court matters on a party/party basis. The Tribunal also notes the decision in HCCC v Greenwood [2011] NSWNMT 13 and that, as was found in that case, the particulars of the application established were more than sufficient to justify the making of a costs order.
……………………… ………………………
Senior Member M Brennan Member D Byrne
HEARING DETAILS
FILE NUMBER: | OR 13/2015 |
PARTIES, APPLICANT: | Medical Board of Australia |
PARTIES, RESPONDENT: | Dr Nilanthi Kanapathipillai |
COUNSEL APPEARING, APPLICANT | Ms A Tonkin |
COUNSEL APPEARING, RESPONDENT | Mr M Lynch |
SOLICITORS FOR APPLICANT | ACT Government Solicitor |
SOLICITORS FOR RESPONDENT | Hicksons Lawyers |
TRIBUNAL MEMBERS: | Senior Member M Brennan Member D Byrne |
DATES OF HEARING: | 10 November 2015 11 November 2015 12 November 2015 |
1
9
2