The Medical Board of Australia v Adams
[2015] ACAT 8
•19 December 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
THE MEDICAL BOARD OF AUSTRALIA v ADAMS
(Occupational Discipline) [2015] ACAT 8
OR 32 of 2014
Catchwords: OCCUPATIONAL DISCIPLINE – OCCUPATIONAL DISCIPLINE – Medical Practitioner – Anaesthetic registrar – personal use of propofol in 2010 – drug obtained from hospital and not used for patient purposes – undertakings given – further use of fentanyle in 2013 – drug improperly obtained from the hospital and not used for patient purposes – finding of professional misconduct – consent orders effecting restrictions on practice and requiring testing and treatment – costs
Legislation cited: Health Professionals Act 2004 section 45
Health Practitioner Regulation National Law (ACT) section 169
Tribunal: Mr C.G Chenoweth – Senior Member
Date of Orders: 19 December 2014
Date of Publication of Orders: 27 January 2015
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: OR 14/32
RE: THE MEDICAL BOARD OF AUSTRALIA
Applicant
AND: DR MICHAEL ADAMS
Respondent
ORDERS
Tribunal: Mr C. Chenoweth – Senior Member
Date of Order: 19 December 2014
Having regard to the Statement of Agreed Facts attached to and forming part of these orders and conditions, the tribunal makes the following orders by consent.
The Tribunal orders that:
The respondent has engaged in professional misconduct.
The respondent be reprimanded.
For the first 2 years after his resumption for medical practise the respondent’s registration is to be subject to the following Practise conditions:
(a)He is not to work in the discipline of anaesthesia in any capacity.
(b)He is to be supervised by a supervising consultant based at the same place of work who is aware of his history. The level of supervision will include fortnightly review of the respondent’s work. The respondent to authorise the supervisor to report to the Medical Board of Australia and to the Medical Council of NSW if practising in NSW, if they have any concern about his health or performance, and in any event 6 monthly.
(c)He is not to prescribe Schedule 8 or Schedule 4 Appendix D medications.
(d)He is not to work more than 40 hours per week, nor to perform overnight shifts.
(e)Condition 3(a) is not to be reviewed until the expiration of this period of two years.
For the first 2 years after his resumption of medical practise the respondent’s registration is to be subject to the following Health conditions:
(a)He remain abstinent of drug use (other than medication prescribed by his treating medical practitioners) and he undergo, and ensure he is in the necessary physical condition to undergo, urine drug screening 12 times per month and hair analysis every 6 months according to AHPRA’s UDS group 1 monitoring guide as amended from time to time. The cost of drug screening is to be borne by the Medical Board of Australia or the Medical Council of NSW.
(b)He remain abstinent of alcohol during his working week and he undergo breath alcohol testing at the beginning of his shift 3 times per week, such testing to be carried out at random times as directed by his supervisor. The cost of alcohol screening is to be borne by the Medical Board of Australia or the Medical Council of NSW.
(c)He attend and participate in a monitoring and support group for doctors such as the Victorian Doctors Health Program, Medical Council of NSW Impaired Registrants Program or similar program approved by the regulatory body in the jurisdiction that the respondent practises in from time to time, at a frequency to be determined by the program.
(d)He is to attend a treating general practitioner at his own cost, who is aware of his history, at least every 6 months and comply with any prescribed treatment recommended by that practitioner. The GP to be authorised by the respondent to report to the Medical Board of Australia and to the Medical Council of NSW if practising in NSW, 6 monthly, on compliance with treatment and attendance records.
(e)He is to attend his treating psychiatrist Dr Jurd at his own cost at least once every 3 months or as directed by Dr Jurd and comply with any prescribed treatment recommended by Dr Jurd. Dr Jurd be authorised by the respondent to report to the Medical Board of Australia and to the Medical Council of NSW if practising in NSW, 6 monthly, on compliance with treatment, attendance records and progress in dealing with the substance abuse addiction.
(f)He is to attend for review by a NSW Medical Council appointed psychiatrist on a 6 monthly basis or as directed by the NSW Medical Council. The cost of the review and report to the Medical Board of Australia and/or Medical Council of NSW will be borne by them.
(g)He is to attend a treating psychologist at his own cost, who is aware of his history, on a monthly basis or as determined by his treating psychologist.
(h)He is not to self-prescribe nor to prescribe for close family members.
In the event that the respondent is permitted by the Medical Board of Australia or by the Medical Council of NSW if practising in NSW, to return to practise in the discipline of anaesthesia after the initial 2 year period of returning to medical practise he comply with the following conditions:
(a)He comply with the level of alcohol and drug screening including hair analysis, required by and at the cost of the Medical Board of Australia or the Medical Council for NSW if practising in NSW, for the remainder of the time the respondent works in anaesthesia.
(b)He attend and participate in a monitoring and support group for doctors such as the Victorian Doctors Health Program, NSW Medical Council Impaired Registrants Program or similar program approved by the regulatory body in the jurisdiction that the respondent practises in from time to time for as often and for as long as required by the program.
(c)He undergo random alcohol and drug screening including hair analysis at the level required by and at the cost of the Medical Board of Australia or the Medical Council of NSW if practising in NSW, from time to time for as long as that body deems fit.
Should the respondent seek to change or remove any of these conditions sections 125 – 127 of the HPRNL are to apply so that a review of these conditions can be conducted by the Medical Board of Australia.
The review period for conditions 3(b) to 3(d) and conditions 4(a) to 4(h) is 6 months.
The applicant is to pay the Respondent’s costs for the conference held on 22 November 2014 on a party/party basis at the Supreme Court of the ACT scale, in an amount to be agreed on failing agreement, to be assessed by the Tribunal, such costs to be paid within 28 days of agreement or assessment.
The respondent is to pay the applicant’s costs of these proceedings (other than for the 22nd November 2014) on a party/party basis at the Supreme Court of the ACT scale, in an amount to be agreed or failing agreement, to be assessed by the Tribunal, such costs to be paid within 28 days of agreement or assessment.
………………………………..
Mr C. G Chenoweth – Senior Member
IN THE AUSTRALIAN CAPITAL TERRITORY
CIVIL & ADMINISTRATIVE TRIBUNAL No or14/32
tHE mEDICAL BOARD OF AUSTRALIA
APPLICANT
AND
dR mICHAEL aDAMS
RESPONDENT
Statement of Agreed Facts.
The Respondent is a registered medical practitioner having been registered to practise medicine in Australia on 6 August 2007. His registration expires on 30 September 2015.
Since 11 November 2013 he has been subject to an undertaking that he will not work as a medical practitioner in Australia and that he will not return to work as a medical practitioner without first seeking the Applicant’s approval.
The Respondent holds the degrees of bachelor of medicine and bachelor of surgery from the University of Cardiff in the United Kingdom.
At all material times the Respondent was practising medicine as a Registrar in Anaesthetics at the Calvary Hospital (Calvary) in the Australian Capital Territory (ACT).
The notification
On 1 November 2013, the Australian Health Practitioner Regulation Agency (AHPRA) received a notification, from Dr John Vinen (Dr Vinen), the Director of Medical Services of Calvary, dated 29 October 2013, concerning the Respondent’s conduct on 22 October 2013. The notification stated that on that day the Respondent had taken a 500ug vial of Fentanyl (an Opiate) from an operating theatre at approximately 8.20 am to use in a case outside the operating theatre which was not scheduled to take place until after 12pm. Dr Vinen stated that this was not normal practice.
Previous relevant conduct
In early 2010 the Respondent used Propofol after finishing a late shift at Calvary. He continued to do so on a number of occasions either on completion of a shift while at home, or occasionally at the hospital.
On 8 May 2010 the Respondent was found by an anaesthetics registrar in the registrar’s bedroom at Calvary in a drugged state.
On 14 May 2010 the Respondent met with the Director of Anaesthetics at Calvary and agreed to give undertakings, including an undertaking that he would only work during the day and then only when supervised by an anaesthetist.
On 3 June 2010 the Respondent met with the Deputy Chair of the Medical Board of Australia (the Board). He signed a number of undertakings including one to only work during the day whilst being supervised by an anaesthetist.
On the same day he travelled to Moruya to work for five (5) days in the Emergency Department of Moruya Hospital, without supervision.
On 4 June 2010 the Respondent was advised by the Deputy Chair of the Board that he should immediately stop working.
As a result of these events the Board sought an emergency order, under s 45 of the ACT Health Professionals Act 2004, that the Respondent’s registration as a medical practitioner be suspended.
That application was dismissed (ACT Medical Board v Adams 17 June 2010 HP10/3). The Tribunal considered whether the Respondent’s actions in working at Moruya Hospital was a deliberate attempt to flaunt his undertakings. The Tribunal found that the evidence would suggest that the Respondent’s actions were rather naïve mistakes, but not deliberate attempts to misconduct himself (at paragraph 37).
The Respondent then worked in the Emergency Department of the Canberra Hospital.
He recommenced training as an anaesthetist in June 2011.
He practiced with conditions on his registration until 14 June 2011, when he entered undertakings which remained in place until recently. Those undertakings included that he be subject to random urine screening. The undertakings were for a period of 2 years, commencing on 14 June 2011, at which time they were to be reviewed.
The Respondent returned to anaesthetics practice in January 2012.
In June 2013 the respondent applied for the removal of the undertakings. Arrangements were made for him to undergo a health assessment on 22 August 2013. The respondent applied for a position in Anaesthetics at Nepean Hospital and was advised on 18 September 2013 that he had secured that position. No outcome of his application to the Medical Board had been forthcoming at that time.
Drug use before the notification
In late August 2013 the Respondent started using Fentanyl while working at Calvary. He self-administered the Fentanyl that was left over from surgeries performed on patients anaesthetised by him. The Fentanyl was used after completion of his shifts at Calvary.
By around September 2013 the Respondent was using up to 300ug of Fentanyl every day.
He took a holiday with his family for eleven (11) days but on his return to work in October he began using Fentanyl again.
Events on 22 October 2013.
At 8:20am on 22 October 2013, the Respondent obtained an ampoule of 500ug Fentanyl for a procedure which:
(a)was not scheduled until 12:00pm, at the earliest, and actually took place after 3:00pm
(b)he anticipated would require 150 to 250ug and in fact required 150ug of Fentanyl.
The conduct of the Respondent described in paragraph 22 was not the usual practice of other anaesthetists. He was questioned by other practitioners who were unaware of his prior drug history. He was advised that the procedure was not scheduled until after 12:00pm. The Respondent left the operating theatre taking the ampoule of Fentanyl with him. Other medical practitioners present reported the incident.
No-one saw the Respondent either draw up or discard the Fentanyl.
Events after 22 October 2013.
On 23 October 2013 the Respondent was informed by Calvary that as a result of the notified incident of 22 October 2013 his practice was to be restricted and that he could only work under supervision. He was advised that he would need to attend a further meeting concerning the incident and he was advised that he would be asked to be tested for opioids.
The Respondent could not be contacted on 24 October 2013 as he had travelled to the South Coast on that day and did not return until Friday 25 October 2013, by which time the risk of detecting Fentanyl by urinalysis may have been reduced.
On 26 October 2013 the Respondent attended the Canberra Hospital Emergency Department for supervised urine drug testing. No drugs were detected.
On 28 October 2013 the Respondent participated in a taped interview with Dr Andrew Watson and Mr David Prior at Calvary. In the course of that interview he was asked to explain what he did with the 500ug ampule of Fentanyl he removed from the operating theatre on 22 October 2013. He stated that he used 150ug for the patient he had to anaesthetise at 3pm and discarded the rest.
During the interview the Respondent was asked to provide blood, urine and hair for drug testing. He agreed to blood and urine testing but not hair testing. The blood and urine sample tests were negative. During the interview the Respondent was advised that follicle testing would be a prerequisite for working in supervised practice. He did not advise the interviewer that it was his practice was to maintain shaved pubic and underarm hair.
On 14 November 2013 the Applicant required the Respondent to attend a health assessment, pursuant to s 169 of the Health Practitioner Regulation National Law (ACT). The Respondent did not advise the Applicant that he had waxed his body of pubic and underarm hair.
The next day the Respondent attended Laverty Pathology to undergo the testing required by the Board. The testing could not take place because the Respondent had a crew cut and had removed his pubic and underarm hair.
On 13 and 14 November 2013 the Respondent had admitted his relapse to Calvary, the Canberra Hospital and to his General Practitioner, Dr Brenda Tait.
Action by the Applicant.
As a result of the notification received from Dr Vinen the Applicant proposed immediate action to suspend the registration of the Respondent and asked him to show cause as to why it should not do so.
The Respondent gave undertakings to the Applicant that he would not practise as a medical practitioner from 13 November 2013 and that he would seek the approval of the Medical Board of Australia prior to returning to work as a medical practitioner. In light of these undertakings the Applicant did not proceed to suspend the Respondent’s registration.
The Respondent is still subject to those undertakings. The Respondent says that he has complied with those undertakings, and there is no evidence to suggest that he has not thus complied.
Urine drug screening (UDS)
Guide for health practitioners and students
Introduction
Your National Board requires you to undergo Urine Drug Screening (UDS) as part of a condition on your registration as a health practitioner or student, or an undertaking you have given to the Board.
This information sheet details what you must do to comply with this restriction on your registration.
You must comply with these requirements. A breach of a restriction, including these requirements, may lead your National Board to take further action. Breaches include, but are not limited to, circumstances when you fail to provide samples when required, provide dilute or otherwise unsuitable samples, or produce positive UDS results.
AHPRA staff will be your contact with your National Board about monitoring your UDS. Most often this will be staff from the AHPRA office in the state or territory in which you practise, study or live. We will tell you the name and contact details of the compliance officer who will oversee your case. If you have more questions please contact your compliance officer.
What you have to do
The National Boards and AHPRA require the collection and testing of urine samples to be carried out in line with Australian Standard AS/NZS 4308:2008 "Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine" (Australian Standard).
The National Boards and AHPRA also have requirements for UDS that fall outside the scope of the Australian Standard.
You must:
•ensure that all pathology referrals or request forms correctly state all drugs and/or substances that your samples must be tested for. Your National Board decides the specific drugs or substances that you must be tested for, based on the circumstances of your case.
•know which screening group (from one to five) you have been allocated by your National Board. This determines how many urine samples you must provide for testing each month.
•call the urine drug screening telephone number 1800 633 654 every weekday after 6.00am local time to learn if your screening group is required to provide a sample for UDS on that day.
•contact your AHPRA compliance officer immediately if there is an operational failure of the urine drug screening telephone number (for example , no message is available) . Your compliance officer will investigate the issue and as soon as possible and tell you what you need to do.
•provide your samples for UDS no later than 8.00pm on the days that you are required to provide a sample or by the earlier time of day set by your National Board. Presentation for UDS after 8.00pm will be considered a 'missed test'.
•know the opening hours of the laboratories or collection centres that you attend.
•immediately notify AHPRA in writing if you become aware that you have failed to present for screening when required, explaining why you failed to screen.
•provide all urine samples under direct observation at an accredited collection centre that complies with the requirements of the Australian Standard . If it is not possible for you to meet these requirements , you must make a written request to the Board seeking approval of alternative arrangements before commencing UDS.
•ensure you are not excessively hydrated before attending for screening, to reduce the chance of providing a dilute sample.
Australian Health Practitioner Regulation Agency
G.P.O. Box 9958 I Melbourne VIC 3001 I AHPRA is provided with a copy of the results for each of your urine drug screens in a timely manner.
•pay all costs associated with the collection and analysis of your urine samples.
•authorise confirmatory testing of the sample if you return a result that indicates the presence of one or more drugs or substances in your urine. This is consistent with the Australian Standard. You are responsible for the cost of any additional testing.
Screening on weekends and public holidays
•In some states and territories, collection centres may be able to collect urine samples on weekends and public holidays. Your compliance officer will tell you if you are required to call the urine drug screening telephone number on weekends and/or some or all designated public holidays.
Medications and foods
•A number of prescription and over the counter (OTC) medications, complementary medicines and ingredients in some foods, may cause positive UDS results. Examples include OTC medications containing codeine and its derivatives, some cough and cold medications, weight loss supplements and poppy seeds. You must avoid these substances unless they have been prescribed by a treating practitioner. If you consume a medication or food that may affect your UDS results you must notify AHPRA as soon as possible.
•If you are taking regular prescribed medications you must advise AHPRA of the medications that you take, so this can be taken in to account when assessing UDS results. The National Boards and AHPRA will not seek to influence the treatment regimen prescribed by your treating practitioner/s.
Leave from screening Ad hoc leave
•You may request leave from UDS on an ad-hoc basis, for example, to travel interstate or overseas, or in exceptional personal circumstances. Your National Board may approve leave from screening on religious holidays relevant to you. You must apply in writing for leave from screening at least five business days before the anticipated leave. You need to submit your request to your compliance officer.
•If extraordinary circumstances prevent you providing at least five business days notice, the written request must be provided (by fax or email) as soon as you know you need leave.
Sickness leave
•Your National Board may grant leave from UDS for illness only when this is supported by a medical certificate . If you are unable to attend for UDS because you are ill, you must immediately inform your compliance officer, and provide a copy of the medical certificate verifying your illness to AHPRA within five days. The medical certificate must confirm the medical condition that caused you to be unable to attend for UDS, or produce urine for screening.
Extra screening
•Your National Board or AHPRA may require you to provide additional sample/s for screening. If this occurs you must provide the additional sample/s as directed. This may be required when:
•you have been granted leave from screening or failed to provide a sample without reasonable excuse or
•provided a sample that is dilute or otherwise unsuitable (as described by the Australian Standard) or
•produced a positive result.
Requesting changes to screening
•You may request your National Board to change or remove the requirements associated with your UDS, for example, reducing the frequency at which you are required to screen. The National Board will consider your request individually. It is more likely grant this change if you have demonstrated an ongoing high level of compliance with your screening requirements (i.e. you have provided samples for UDS at all times when required, and no drugs or substances have been detected over a significant period of time).
•To request a change, you must contact your compliance officer and discuss the process for seeking a review by the Board. Requests to change your UDS requirements must be submitted in writing. More information is published in the Monitoring and compliance fact sheet on the AHPRA website under notifications.
Page 2 of 2
HEARING DETAILS
FILE NUMBER: | OR 14/32 |
PARTIES, APPLICANT: | Medical Board of Australia |
PARTIES, RESPONDENT: | Dr. Michael Adams |
COUNSEL APPEARING, APPLICANT | Mr Griffin |
COUNSEL APPEARING, RESPONDENT | Mr Pike |
SOLICITORS FOR APPLICANT | Mr Webber Australian Government Solicitor |
SOLICITORS FOR RESPONDENT | Ms Versace Avant Law |
TRIBUNAL MEMBERS: | Mr C.G Chenoweth Senior Member |
DATES OF HEARING: | 15 December 2014 |
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