BMS v Pharmacy Board of Australia [2021] QCAT 369

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BMS v Pharmacy Board of Australia [2021] QCAT 369 PARTIES: BMS (applicant) v PHARMACY BOARD OF AUSTRALIA (respondent) APPLICATION NO/S: OCR 017-20 MATTER TYPE: Occupational regulation matters DATE OF ORDERS: 21 May 2021 DATE OF REASONS: 15 November 2021 HEARING DATE/S: 20 and 21 May 2021 HEARD AT: Brisbane DECISION OF: Judge Allen QC, Deputy President Assisted by: Ms C Ashcroft Mr M Lock Dr G Neilson ORDERS: The decision of the Pharmacy Board of Australia on 17 December 2019, pursuant to section 178 of the Health Practitioner Regulation National Law (Queensland), to impose conditions on the applicant’s registration, is set aside and substituted with a decision, pursuant to section 179(2)(a) of the Health Practitioner Regulation National Law (Queensland), to take no action in relation to the matter. The decision of the Pharmacy Board of Australia on 5 November 2020, pursuant to section 125(5) of the Health Practitioner Regulation National Law (Queensland), to refuse to grant the application to remove conditions on the applicant’s registration is set aside and substituted with a decision, pursuant to section 125(5) of the Health Practitioner Regulation National Law (Queensland), to grant the application to remove the conditions on the applicant’s registration. The decision of the Pharmacy Board of Australia on 4 February 2021, pursuant to section 126(1) of the Health Practitioner Regulation National Law -- 1 of 21 -- 2 (Queensland), to change conditions imposed on the applicant’s registration, is set aside and substituted with a decision, pursuant to section 127(2) of the Health Practitioner Regulation National Law (Queensland), to remove the conditions on the applicant’s registration. The Tribunal’s decisions have effect from 21 May 2021. CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHARMACEUTICAL CHEMISTS – LICENSES AND REGISTRATION – where the applicant is registered as a pharmacist – where the Pharmacy Board of Australia made decisions resulting in imposition of conditions on the applicant’s registration – where the conditions were imposed after the Board formed a reasonable belief that the applicant suffered from an impairment – whether the practitioner suffers from an impairment Health Practitioner Regulation National Law (Queensland), s 3, s 3A, s 4, s 5, s 125, s 126, s 127, s 178, s 179 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Coppa v Medical Board of Australia [2014] NTSC 48 DYB v Medical Board of Australia [2019] NSWCATOD 162 George v Rockett (1990) 170 CLR 104 Mahboub v Medical Board of Australia [2020] QCAT 459 Medical Board of Australia v Wong [2015] QCAT 439 Qasim v Health Care Complaints Commission [2015] NSWCA 282 APPEARANCES & REPRESENTATION: Applicant: M Anthony of The Association of Professional Engineers, Scientists and Managers, Australia Respondent: L Nixon of Turks Legal REASONS FOR DECISION Introduction [1] The applicant is a registered pharmacist. During the period from 30 March 2017 until 4 February 2021, the Pharmacy Board of Australia (Board) made various decisions affecting the registration of the applicant and having the effect of suspending his registration for some periods of time and placing conditions on the applicant’s registration during those periods of time when it was not suspended. The applicant applied to the Tribunal to review those operative decisions of the Board that resulted -- 2 of 21 -- 3 in his registration being subject to conditions at the time of the hearing on 20 and 21 May 2021. [2] At the conclusion of the hearing on 21 May 2021, the Tribunal decided to make orders setting aside the operative decisions of the Board and substituting decisions which had the effect of removing all conditions on the applicant’s registration. These are the reasons for that decision. Background [3] The applicant first obtained registration as a pharmacist in 2009. [4] To provide necessary context for a consideration of the application to review later decisions of the Board, it is necessary to recount the applicant’s notification history and refer to some earlier decisions of the Board which are not the subject of the application to review. [5] In late March and early April 2016, the applicant was employed as a locum pharmacist at a pharmacy in a small rural Victorian town. [6] On 7 April 2016, a police officer made a telephone notification to the Australian Health Practitioner Regulation Agency (AHPRA) that during the preceding 2 to 3 weeks, he had received six complaints from persons about the applicant: (a) “he was a bit distracted/crazy/eccentric in shop”; (b) “possible smell of cannabis in the shop while he was there”; (c) two complaints of “error in dispensing medications”; (d) “medical practitioner, he stated to her how easy it was to use codeine for things it isn’t supposed to be used for (eg crushing it up)”; (e) “after hours someone heard broken glass – he said he wasn’t sure, he said he thought someone had broken in, that he hadn’t done it himself.” [7] The police officer reported that he had introduced himself to the applicant who “seemed nervous and shaky and his sentences did not flow – seemed irrational.” [8] On 8 April 2016, an inspector from the Victorian Pharmacy Authority made an unannounced visit to the pharmacy and an audit of controlled drugs did not reveal any discrepancies. [9] On 16 May 2016, a response by the applicant’s legal representatives advised that the applicant denied being intoxicated at work and had not been made aware of any dispensing error at the pharmacy. [10] On 23 June 2016, the Board decided to take no further action on the basis the notification was lacking in substance. [11] From mid-November 2016 until early February 2017, the applicant was employed as a locum pharmacist at a pharmacy in a regional city in South Australia and residing in cabin accommodation at a cabin park. The pharmacy was one of a chain of pharmacies in South Australia and other states of Australia. [12] On 24 February 2017, a professional services manager employed by the pharmacy chain (presumably in a national or state head office and certainly not at the pharmacy -- 3 of 21 -- 4 where the applicant had worked) made a complaint to AHPRA about the applicant to the following effect: (a) On 3 February 2017, the manager of the pharmacy where the applicant was employed phoned her to advise that the applicant “was unwell and may have been intoxicated” and had been sent home from work that and the previous day. (b) On 7 February 2017, she travelled to the pharmacy and [name redacted in the copy of the complaint in evidence] “mentioned a couple of times she had smelt alcohol on his breath”. The pharmacist in charge could not confirm this as due to religious reasons she has little exposure to alcohol. The pharmacist in charge mentioned that the applicant’s work had been good, and he was fine with the customers except until the previous week when she sent him home. The applicant did have some unusual ways and had some odd discussions with staff. (c) On 17 February 2017, she received an email from someone at the cabin park alleging that the applicant’s cabin contained illicit drugs, scales and at least six mobile phones and it was rumoured that he was dealing drugs whilst living there. [13] On 2 March 2017, an anonymous witness stated to an AHPRA investigator that cleaners at the cabin park had reported that the applicant’s room “was messy, and there was a large quantity of prescription type medication in the cabin together with what appeared to be scales, a heat gun and 6 mobile phones… Other residents reported hearing phone calls from the cabin which caused them to suspect that [the applicant] was dealing drugs from the location. They also reported regular callers, which was unusual given that [the applicant] was not a local resident. This added to their suspicion.” [14] AHPRA subsequently received copies of photographs allegedly of the contents of the applicant’s cabin and apparently showing cannabis, drug use paraphernalia and medication including a box of Tramadol. [15] On 6 March 2017, the original notifier stated in a phone conversation with the AHPRA investigator that: (a) There were no reported issues in relation to the applicant’s performance other than he “looked under the weather” on a couple of occasions recently. The applicant had complained of a bad back. (b) Strict error reporting systems had reported no errors. (c) The applicant’s dispensing and treatment of customers did not cause suspicion or alarm. (d) There were no reported errors with Schedule 8 medication. (e) There were no suspicions he was taking medicine from the pharmacy. (f) It was feasible, although unlikely, that the applicant could have taken medication from a Return of Unwanted Medication bin. [16] On 30 March 2017, the Board proposed to take immediate action under section 156 of the Health Practitioner Regulation National Law (National Law) by suspending the applicant’s registration and invited the applicant to make submissions to the Board. The Board advised that it was relying upon the 2016 notification as well as the 2017 -- 4 of 21 -- 5 notification. On the same date, the Board also decided to require the applicant to undergo a health assessment. [17] In his written response dated 5 April 2017, the applicant denied all the allegations and, in particular: (a) denied being asked to leave work on 2 and 3 February 2017 because he was intoxicated; (b) advised that he had requested to be relieved of his duties on those dates as he had not slept due to a back injury; (c) denied ever attending work in an intoxicated state; (d) denied his breath at work ever smelling of alcohol; (e) denied having possession of any illicit drugs or drug paraphernalia in his cabin; (f) denied using illicit substances or dealing drugs; (g) denied having possession of any prescribed medication other than that obtained by lawful prescription; and (h) as regards the 2016 notification, suggested such complaint appeared to be the result of persons mistaking the applicant’s quirks and eccentricity as evidence of intoxication. [18] On 7 April 2017, the Board decided to take immediate action pursuant to section 156 of the National Law and suspend the applicant’s registration. The Board considered there were proven objective circumstances to support a reasonable belief that the applicant had “a health impairment related to the misuse of alcohol and/or, recreational and/or pharmaceutical drugs” and might practise pharmacy in circumstances where there was no evidence that the health impairment was adequately managed. [19] On 2 May 2017, the applicant provided a hair sample for drug testing. On that date, the applicant declared recent drug use including: (a) Marijuana last used 1 month for 2 days; (b) Ecstasy tablet x 2 last used 2 months on 1 day; (c) Panadeine Extra last used 1 month for 3-5 days; (d) Tramal last used 90 days for 1-2 weeks; (e) Oxycontin last used 90 days on 1 day; and (f) LSD last used 90 days on 1 day. [20] On 31 May 2017, the applicant underwent a health assessment by Dr Nigel Prior, consultant psychiatrist. Dr Prior reported that the applicant provided a history of feeling isolated whilst working as a locum pharmacist in the pharmacy in South Australia. He attempted to wean himself off his anti-depressant medication. As he was experiencing insomnia and low mood, he was smoking cannabis three or four days a week. He had been doing so particularly over the eight months since he had split up with his girlfriend. He denied any other illicit drug use at that time. The applicant reported aggravating a back injury, causing him poor sleep, and resuming use of -- 5 of 21 -- 6 tramadol (left over from a previous supply after a neck injury in 2011) for a three week period in February and March 2017 as well as Panadeine Extra for a few weeks. He denied any other opioid use. He denied being intoxicated in the workplace and considered any problems at work related to his poor sleep and anti-depressant medication withdrawal. His history of, and treatment for depression, was discussed. He reported taking sample or patient returned anti-depressant medication from the pharmacy on occasions. The applicant reported drinking alcohol on a social basis. He reported his alcohol intake escalating to six to eight beers daily for a week after being suspended then reducing to six units of alcohol two days a week. Dr Prior recorded the applicant reporting use of cannabis commencing at high school and recommencing after the neck injury in 2011 for about eight weeks and then socially at parties on a three-monthly basis. Dr Prior recorded: For the past eight months, he has been using it more regularly, smoking a joint daily for four days a week through until February 2017. He reports he had a one-off use of cannabis in March 2017. He also acknowledges occasional illicit drug use of LSD and ecstasy tablets. He has used this socially at music festivals or clubs. His last use of these illicit drugs was in the [sic] March 2017. [21] Dr Prior noted the results of the hair drug screen performed on 2 May 2017 which covered a period from early to mid-January to early to mid-April 2017. The results showed a small amount of codeine not suggestive of excessive use, a small amount of oxazepam suggestive of occasional use, a low level of oxycodone suggestive of occasional use and a moderate level of tramadol not suggestive of excessive use. The absence of positive results for cannabis, ecstasy and LSD were consistent with the applicant’s declared infrequent use of such drugs. Serum liver function tests showed an elevated CDT but did not indicate probable recent alcohol excess. [22] Dr Prior recorded the April 2016 notification to AHPRA regarding the applicant as “concerns that he was acting in a distracted, eccentric manner, tripping over stock, had talked about the ease of obtaining and crushing cocaine1, that he was ‘all over the place’ and had ‘really wide eyes’.” [23] Dr Prior diagnosed a Substance Abuse Disorder and a Major Depressive Disorder. Dr Prior opined that the Substance Abuse Disorder primarily involved cannabis, but also some other illicit substances such as LSD and ecstasy, with the Cannabis Use Disorder having reduced from moderate to mild and in early remission, and the Substance Abuse Disorder involving the other drugs mild and in early remission. Dr Prior recommended that the applicant continue anti-depressant medication and see a psychologist regarding his depression. He further recommended treatment for the Substance Abuse Disorder and at least three more months of documented abstinence before return to work. [24] On 23 November 2017, the Board revoked the suspension of the applicant’s registration and imposed conditions on his registration: (a) prohibiting use of any substance unless prescribed, approved or administered by a treating practitioner; (b) requiring breath alcohol testing and/or urine and hair drug screening; 1 This was incorrect. The terms of this part of the hearsay in the notification referred to codeine, not cocaine. -- 6 of 21 -- 7 (c) requiring evidence of 3 clear months of documented abstinence from illicit substance use prior to returning to work; (d) limiting practice within the hours of 7am to 6pm, not exceeding 24 hours a week and not undertaking after hours or on-call work; (e) requiring mentoring; and (f) requiring treatment by a psychiatrist with expertise in addiction medicine, a psychologist and a general practitioner. [25] Then followed a period of about 12 months’ skirmishing between the Board and the applicant regarding his compliance with the terms of such conditions, in particular the conditions requiring urine drug screening and medical treatment with the applicant claiming inability to afford the cost of such testing and treatment. I need not detail the dispute and competing contentions. I have noted the contents of the relevant correspondence between the Board and the applicant, including letters of the Board dated 17 July 2018 communicating the Board’s decisions, on 28 June 2018, including to caution the applicant for contravention of the urine and hair drug screening conditions, to take no action in response to some other contraventions of the conditions, including failing to undertake treatment with a general practitioner and psychiatrist, to approve Dr Michael Robertson as a treating psychiatrist, and to decide that the applicant had demonstrated 3 months of abstinence from illicit substance use. [26] It is important to note the results of urine drug testing from late 2017 to late 2018 as they formed the basis of a subsequent psychiatric diagnosis of Alcohol Use Disorder and have informed subsequent diagnoses and the decisions of the Board the subject of this application to review. The results are summarised in the report of Dr Stimming dated 18 July 2019: Pathology Findings from Pathology results summary date 12 June 2019 6.1 Conditions, including regular urine drug pathology and hair testing, were imposed on [the applicant] on the 23 November 2017. Of the urine samples that were given there has not been any evidence of illegal drugs or medications not prescribed by his medical practitioners. There were no dilute urine samples given. 6.2 In examining the pathology summary attached,  6.2.1 [the applicant] had normal urine results in December 2017,  6.2.2 he missed two urine tests in January 2018,  6.2.3 there was no urine testing in February 2018,  6.2.4 he had one significant urine test positive for alcohol (0.14 g%) in March 2018,  6.2.5 he had two insignificant urine tests positive for alcohol (<0.05 g%) in April 2018,  6.2.6 he missed two urine tests and had one significant urine tests [sic] positive for alcohol (0.13 g%) and one insignificant urine test positive for alcohol (<0.05 g%) in May 2018,  6.2.7 he missed five urine tests and had two insignificant urine tests positive for alcohol (<0.05g%) in June 2018, -- 7 of 21 -- 8  6.2.8 he had four insignificant urine tests positive for alcohol in July 2018,  6.2.9 he missed one urine test and had one significant urine test positive for alcohol (0.09 g%) and two insignificant urine test [sic] positive for alcohol (<0.05 g%) in August 2018,  6.2.10 he missed one urine test in September 2018,  6.2.11 he missed seven urine tests in October 2018,  6.2.12 he missed two urine tests in November 2018,  6.2.13 he missed two urine test [sic] had two significant urine tests positive for alcohol (0.09 g%, 0.15 g%) in December 2018. [27] The applicant was able to obtain some locum work as a pharmacist and additional employment as a pharmacy assistant during October to December 2018. It is not contended by the Board that any positive urine alcohol test results coincided with days the applicant was carrying out duties as a pharmacist or pharmacy assistant. I will refer to evidence from his then and later employers favourable to the applicant later in these reasons. [28] On 13 December 2018, the Board decided to again take immediate action pursuant to section 156 of the National Law and suspend the applicant’s registration because of the applicant’s contravention of conditions requiring urine and hair drug screening and psychiatric and psychological treatment. [29] On 6 February 2019, the applicant underwent a health assessment by Dr Andrea Stimming, consultant psychiatrist, who diagnosed an Alcohol Use Disorder Moderate Severity that would or be likely to detrimentally affect the applicant’s capacity to practise the profession. Dr Stimming’s report dated 22 February 2019 and her supplementary report dated 18 July 20192 will be discussed further later in these reasons. The operative decisions of the Board [30] On 17 December 2019, the Board, after considering submissions of the applicant regarding proposed action3, decided to revoke the suspension of the applicant’s registration and also decided to impose conditions on the applicant’s registration pursuant to section 178 of the National Law. In its letter of 23 December 2019 advising the decision, the Board stated that it had formed a reasonable belief that the applicant had a health impairment that detrimentally affected, or was likely to detrimentally affect, the applicant’s capacity to practise his profession. The Board identified the impairment as one of Alcohol Use Disorder of Moderate Severity. The conditions imposed on the applicant’s registration provided for: (a) limitations on practice: 2 A decision of the Board on 2 May 2019 to refer the applicant to a Health Panel was rescinded on 21 June 2019 after it was discovered Dr Stimming had been erroneously briefed with pathology data relating to someone other than the applicant. Dr Stimming was briefed to provide a supplementary report based on correct data. 3 In response to a letter from the Board to the applicant dated 23 October 2019 advising the applicant of a decision of the Board on 19 September 2019. -- 8 of 21 -- 9 (i) the applicant could only practise in place/s of practice approved by the Board; (ii) the applicant could not be the only pharmacist on site; (iii) the applicant could only practise between 7am and 6pm; (iv) the applicant could not exceed 24 hours of practice a week; (v) the applicant could not undertake any after hours or on-call work; (b) breath alcohol testing before and after each and every period of practice and as otherwise directed; and (c) treatment with a general practitioner and a consultant psychiatrist with expertise in addiction medicine, an addiction medicine specialist, or a medical officer in an Alcohol and Other Drugs Service. [31] On 20 January 2020, the applicant filed in the Tribunal an application to review the decision of the Board to impose conditions on his registration. [32] On 5 November 2020, the Board decided, pursuant to section 125(5) of the National Law, to refuse the applicant’s application to the Board to remove the conditions on his registration. [33] On 4 February 2021, the Board decided, pursuant to section 126(1) of the National Law, to change the conditions on the applicant’s registration by deleting the requirements that: (a) the applicant could only practise between 7am and 6pm; (b) the applicant could not exceed 24 hours of practice a week; (c) the applicant could not undertake any after hours or on-call work; (d) the applicant be breath tested after each period of practice; and (e) the applicant be treated by any practitioner other than a general practitioner. The law [34] Each of the three operative decisions of the Board were appellable decisions pursuant to section 199 of the National Law. [35] In conducting its review of the Board’s decisions, the Tribunal was to produce the correct and preferable decision by way of a fresh hearing on the merits.4 The Tribunal stood in the shoes of the Board in determining the matter afresh, and so was required to determine whether, pursuant to section 178(1)(a)(ii) of the National Law, it reasonably believed that the applicant has, or may have, an impairment. In doing so, regard must be had to the paramount consideration of the health and safety of the public5 and the objectives and guiding principles of the National Law6, including the 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20. 5 National Law, ss 3A and 4. 6 National Law, ss 3 and 4. -- 9 of 21 -- 10 objective of protection of the public from incompetent practitioners7 and the guiding principle that restrictions on the practice of a health profession are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.8 [36] With respect to the terms of section 178(1)(a) of the National Law, I note that “belief” is the inclination of the mind towards assenting to, rather than rejecting, a proposition.9 The condition for the exercise of the power pursuant to section 178 of the National Law turns on the existence of the relevant reasonable belief and does not require a finding on the balance of probabilities that the belief is correct or true.10 The words “has or may have” in section 178(1)(a)(ii) must also be given their natural meaning. I was not required to hold a reasonable belief that the applicant does have an impairment; it is sufficient if I reasonably believe he may have. The words “or may have” clearly indicate that reasonable belief as to the possibility that the practitioner has an impairment is sufficient.11 [37] Section 5 of the National Law relevantly provides the following definition: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect… for a registered health practitioner …, the person’s capacity to practise the profession … [38] I respectfully agree with the following statement by Horneman-Wren SC DCJ, Deputy President, in Medical Board of Australia v Wong:12 The expression “that detrimentally effects or is likely to affect… the person’s capacity to practice the profession” must extend to impairments, disabilities, conditions or disorders which, as here, when controlled by treatment result in there being no immediate detrimental affect on the practitioner’s capacity. Where the practitioner suffers from an underlying impairment, disability, condition or disorder which in the absence of treatment would, or would be likely to, detrimentally affect the person’s capacity to practice, that person may have an impairment for the purposes of the National Law. A person, for example, with ongoing substance dependence does not cease to have an impairment when sober or abstinent. [39] I accept the respondent’s submission that proof of an impairment need not necessarily require definitive findings as to the nature of a mental health condition, particularly in terms of the criteria in the DSM-5.13 Applicant’s return to work and breathalyser testing [40] Following upon the revocation of the suspension of his registration by the Board on 17 December 2019, the applicant was eventually able to obtain employment as a 7 National Law, s 3(2)(a). 8 National Law, s 3(3)(c). 9 George v Rockett (1990) 170 CLR 104. 10 Mahboub v Medical Board of Australia [2020] QCAT 459. 11 Coppa v Medical Board of Australia [2014] NTSC 48 at [51]; Mahboub v Medical Board of Australia [2020] QCAT 459. 12 [2015] QCAT 439 at [72]; see also DYB v Medical Board of Australia [2019] NSWCATOD 162 at [187]-[190]. 13 Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition; see Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [64]; DYB v Medical Board of Australia [2019] NSWCATOD 162 at [192]. -- 10 of 21 -- 11 pharmacist with an employer willing to accommodate the restrictions of the conditions on his registration. The applicant commenced such employment in May 2020 and remained in that employment at the time of hearing. I will refer to evidence from the applicant’s employer later in these reasons. At this stage, it is convenient to refer to one matter of importance before turning to consideration of the expert evidence relied on by the Board. [41] The Board did not challenge the accuracy of breath testing logs completed by the applicant’s employer from 12 May 2020 through to 18 May 2021 recording the results of breathalyser testing of the applicant on each day he attended work. The applicant tested nil for BAC on each and every occasion. Evidence of Dr Stimming [42] A consideration of the evidence of Dr Stimming was crucial to a determination of the application to review. Dr Stimming’s diagnoses of an Alcohol Use Disorder provided the basis for the Board’s finding of a reasonable belief as to the applicant’s impairment. [43] Dr Stimming interviewed the applicant on 6 February 2019 and supplied a report to AHPRA dated 22 February 2019. The applicant denied any substance abuse whilst working. He said he had only smoked cannabis ten times in his life with one week in the past where he smoked more often. He denied any alcohol use since Christmas 2018. Before that he said he would drink four beers in the evening socially with friends on two nights a week. He denied any concerns with his alcohol intake. He denied any amphetamine use. He said he had used LSD once in his life, many years ago. He denied any opioid use other than prescribed analgesics after a neck injury in 2011. His history of, and treatment for, depression was discussed. [44] Dr Stimming noted the previous notification to AHPRA in April 2016 as “complaints about his behaviour, tripping over stock and odd conversations about the ‘ease of obtaining and crushing cocaine14’.” [45] Dr Stimming noted the results of urine drug pathology briefed to her. It later transpired they included data regarding someone other than the applicant necessitating a supplementary report I will refer to later. She also noted as follows: 16.3 Pathology testing of hair sample on the 20 December 2018, urine and blood samples on the 28 December 2018 did not show any substances of concern. Carbohydrate Deficient Transferrin (CDT) levels were raised suggesting exposure to alcohol but not raised high enough to indicate probable recent alcohol excess. Liver and haemopoetic [sic] results did not suggest compromised functioning from excessive alcohol use. [46] In her summary, Dr Stimming referred, inter alia, to: (a) the examination occurring because of the applicant’s failure to comply with conditions on his registration including attending urine and hair drug testing and engaging in appropriate treatment with a medical practitioner with expertise in addiction medicine; (b) the substance of the notification on 24 February 2017; and (c) Dr Prior’s diagnosis. 14 Repeating the same error as Dr Prior- see footnote 1. -- 11 of 21 -- 12 [47] The rest of Dr Stimming’s summary and conclusions in her report dated 22 February 2019 was essentially unchanged in her supplementary report dated 18 July 2019, provided after she had been briefed with corrected pathology data. It is therefore convenient to move to the summary and conclusions as expressed in the latter report: 7.4 In examining the Pathology results summary date 12 June 2019 (AHPRA # PD19/373894), of the urine tests submitted, most were performed mid morning and five urine tests were significantly positive for alcohol with concentrations greater than 0.05 g%. It is at these levels that there is greater cognitive dysfunction from alcohol intoxication and that the risk of driving is exponentially elevated. In addition, [the applicant] missed 22 urine tests. 7.5 It is reasonable to speculate that [the applicant] may have missed some of these urine tests as he may have been still intoxicated with alcohol, or recovering from the after effects of alcohol use such as a hang over. It is also reasonable to assume that when he missed a urine test there may have been a positive or undesirable result. 7.6 It is telling that at times [the applicant’s] urine was significantly positive for alcohol (> 0.05 g%) during week day mornings, suggesting that if he was working as a pharmacist at that time he may have been impaired by alcohol intoxication or the effects of alcohol from the night before. 7.7 Analysis of the pathology summary for 2018 showed that his urine tests were significantly positive for alcohol, or he missed tests in nine months of the year except from February, April and July 2018, suggesting this is a chronic and long standing problem. 7.8 In conclusion, taking a longitudinal approach, and examining pathology evidence it is still my opinion that [the applicant] has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence), namely Alcohol Use Disorder Moderate Severity (DSM5, 2013). It is still my opinion that his Cannabis Use Disorder is in sustained remission and that his recurrent Major Depressive disorder is currently in remission. It is also my opinion that this mental disorder of Alcohol Use Disorder would detrimentally affect or is likely to detrimentally affect h i s capacity to practice the profession. [48] Dr Stimming provided a further report dated 27 October 2020 in which she stated, inter alia, as follows: 4.1.1 I based [the applicant’s] diagnosis of Alcohol Use Disorder, Moderate Severity on the criteria suggested by the Diagnostic and Statistic Manual, Version 5, (DSM-5) published by the American Psychiatric Association. 4.1.2 In order to make a diagnosis of Alcohol Use Disorder, there needed to be a problematic pattern of alcohol use within a twelve month period leading to clinically significant impairment. For the qualification of Moderate Severity, least four to five symptoms out ofthese 11 criteria need to fulfilled: • Alcohol is often taken in larger amounts or over a longer period than was intended. • There is a persistent desire or unsuccessful efforts to cut down or control alcohol use. • A great deal of time is spent in activities necessary to obtainalcohol, use alcohol, or recover from its effects. • Craving, or a strong desire or urge to use alcohol. -- 12 of 21 -- 13 • Recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school or home. • Continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol. • Important social, occupational or recreational actives are given up or reduced because of alcohol use. • Alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol. • Tolerance, as defined by either of the following: a need for markedly increased amount of alcohol to achieve intoxication or desired effect or a markedly diminished effect with continued use of the same amount of alcohol. • Withdrawal as manifested by either of the following: the characteristic withdrawal syndrome of alcohol or alcohol (or a closely related substance, such as benzodiazepine) is taken to relive [sic] or avoid withdrawal symptoms. 4.1.3 Most of these criteria rely on the self report of the practitioner. In the adversarial nature of an Independent Medical Examination, it is difficult for the practitioner to disclose such information as there are potentially negative employment consequences that depend on such disclosure. 4.1.4 Therefore the main evidence that I relied on to make the diagnosis of Alcohol Use Disorder, Moderate severity were the five "standing out" urine alcohol results identified by Mr Charles Appleton. I speculate that if [the applicant’s] urine was positive for alcohol during week day mornings, it suggested that if he was working as a pharmacist at that time he may have been impaired by alcohol intoxication or the effects of alcohol from the night before. 4.1.5 In addition, On the 9 November 2018, [the applicant’s] application of financial hardship was denied by the board as the submitted evidence of living expenses and limited income suggested he should have some surplus to pay for regular pathology testing. It is noted that "a substantial amount, nearly $1200.00, was spent by you over the three months on non-essential items such as alcohol". 4.1.6 The DSM-5 goes on to define early remission as: After full criteria of alcohol use disorder were previously met, none of the criteria of alcohol use disorder have been met for at least three months but for less than 12 months. 4.1.7 The DSM-5 defines sustained remission as: After full criteria for alcohol use disorder were previously met, none of the criteria for alcohol use disorder have been met at any time during a period of 12 months or longer. [49] Despite the contents of paragraphs 4.1.1 and 4.1.2 of her report dated 27 October 2020, it became apparent from the evidence of Dr Stimming, during the hearing on 20 May 2021, that she was unable to identify evidence of any criteria necessary to diagnose an Alcohol Use Disorder Moderate Severity according to the DSM-5.15 It became clear that Dr Stimming, in reaching her diagnosis, was relying instead on the following matters: (a) the notification on 24 February 2017 that the applicant had been practising whilst intoxicated; 15 T1-59, 64-66. -- 13 of 21 -- 14 (b) Dr Prior’s diagnosis; (c) the urine alcohol results from testing from late 2017 to late 2018; and (d) some information regarding the applicant’s expenditure on alcohol.16 [50] The fragility of the basis for Dr Stimming’s diagnosis, its speculative nature, and the lack of conviction of her opinion were apparent from her evidence. I note the following passages of Dr Stimming’s evidence in particular: From – my experience and my knowledge seeing the – the evidence and the dysfunction that [the applicant] was experiencing at the time, I – that – that’s how I made the diagnosis of alcohol use disorder.17 … The information that I based on to make the diagnosis of alcohol use disorder was based on the evidence that was given to me, including his previous urine alcohol results and I was also told about – I understand he submitted some credit – some financial statements and I was also told about some of the information from those financial statements. … In addition, I – I assumed – his initial notification suggested there was some dysfunction and potential impairment. … That initial notification to AHPRA suggested that there was some dysfunction in his ability to work and, therefore, potential impairment. That’s another – that’s more – other information that I based my diagnosis on.18 … …I don’t know what exactly happened on – before the 24th of February 2017. If I am told that his functioning as a pharmacist suggested, maybe, he was intoxicated, then that would help me in terms of making an opinion on whether he was impaired or not working and whether the impairment was due to a substance use disorder.19 … …I don’t know if that behaviour was related to alcohol. I understand after – Dr Prior’s report suggested that he had a cannabis use disorder and a major depressive disorder. I – therefore, whatever behaviour he had on that particular incident, I don’t know whether that’s due to alcohol or cannabis … or anything else.20 … …My hypothesis is that [the applicant] was suffering from a cannabis use disorder initially before the 24th of February 2017. I – and, therefore, my hypothesis is that after – after the 31st of May 2017 when he was assessed by Dr Prior, the cannabis use disorder was – went into remission and maybe, he developed an alcohol use disorder, That’s my hypothesis.21 [51] The reference to information from financial statements appears to relate to records of transactions from 31 July to 29 October 2018 on a bank account held by the applicant. Such records show what appear to be transactions at liquor stores, noting date and cost of transaction. In the absence of details as to what was purchased and by whom it was 16 T1-58, 59-61 and 66-67. 17 T1-58. 10-13. 18 T1-58. 22-33. 19 T1-59. 30-33. 20 T1-59. 41-47. 21 T1-60. 2-6. -- 14 of 21 -- 15 consumed - and the applicant was not cross-examined about the records - they provide no substantial basis to support a diagnosis of an Alcohol Use Disorder. [52] Dr Stimming appeared to be uncertain as to whether the positive urine alcohol results occurred on days when the applicant was carrying out his employment: The urine – the – the standing out urine alcohol samples that – and I – and I understand they occurred weekdays, during business hours and, therefore, I speculate that if [the applicant] was working as a pharmacist during that time, he would, potentially, be impaired and that impairment would be due to an alcohol use disorder.22 … I – if someone was on holiday and they had a standout alcohol – urine alcohol reading the next day, I don’t think that is evidence by itself that the person has an alcohol use disorder. I didn’t administer the alcohol -sorry, the urine drug and alcohol testing and, therefore, I don’t know what, exactly, the presumption was given to [the applicant] but if this is a workplace related alcohol and drug testing, I would expect that his urine – sorry, the results would show results that does not suggest impairment.23 … It was reliant on the assumption that he could have been working. I didn’t know whether he was, actually, working or not. It was reliant on the assumption that he could’ve been working.24 [53] Whether a positive urine alcohol result related to a day the applicant was rostered to work is of obvious importance in assessing the significance of the result to the issue of impairment. Whilst a high, or indeed any, alcohol reading on any morning would suggest excessive alcohol consumption during the previous night and/or early morning and arguably provide some support for a diagnosis of an Alcohol Use Disorder, it is of limited utility in supporting a finding of impairment if it results from a test on a day the applicant is not, and is not expecting to, carry out his employment. It is of certainly less significance than the consistent nil results obtained as a result of breath testing of the applicant at his workplace during 2020 and 2021. [54] As to those results, after being reminded of the DSM-5 criteria for “sustained remission” quoted at paragraph 4.1.7 of her report dated 27 October 2020, Dr Stimming gave evidence as follows.: Dr Stimming, [the applicant] has now provided breath testing logs certifying that over the period 12 May 2020 to the current time and that is a 12-month period, he’s been submitting to breath tests administered by his employer on every day that he’s worked and many other days besides and without exception, over a 12-month period, every breath test was 0.0. Dr Stimming, would you agree with me that [the applicant’s] logbooks provide good evidence that he – that if, in fact, he ever had a diagnosis of alcohol use disorder, that he would be in sustained remission as you have defined it in 4.1.7? --- It is plausible that he is in sustained remission, however, as I said previously, the risk of relapse is always material.25 [55] This struck me as a grudging concession, especially given Dr Stimming’s inability to point to the DSM-5 full criteria for diagnosis having ever been met and the absence of evidence of any of those criteria having been met in the 12 months preceding the 22 T1-60. 11-15. 23 T1-60.45 – 1-61.4. 24 T1-61. 20-24. 25 T1-61. -- 15 of 21 -- 16 hearing. It was not merely plausible that the applicant was in sustained remission; it was demonstrable according to the DSM-5 criteria. The less than forthright concession was immediately followed by a riposte more in the nature of advocacy than one would expect from a carefully objective expert witness. [56] I was generally unimpressed by Dr Stimming’s evidence for reasons of both content and demeanour. [57] Dr Stimming’s purported diagnosis according to the DSM-5 did not withstand scrutiny. The actual bases for her diagnosis did not have sound evidential support or logical coherence: (a) The substance of the notification on 24 February 2017 did not provide any sound evidential foundation and, in light of the applicant’s denials and other evidence, should not have been afforded the weight given to it by Dr Stimming in her diagnosis. (b) Dr Prior’s diagnosis of a substance use disorder in 2017 provided no sound basis for Dr Stimming’s diagnosis and her “hypothesis” that “the cannabis use disorder … went into remission and maybe, he developed an alcohol use disorder” was entirely speculative. (c) Dr Stimming’s reliance upon the 2018 pathology results was flawed because of her failure to consider whether findings coincided with days of employment or not and her reasoning as to sinister reasons why the applicant may have missed testing was speculative. (d) Dr Stimming’s limited understanding of the applicant’s financial affairs provided no sound additional basis for the diagnosis. (e) Dr Stimming gave no proper weight to the workplace breathalyser results in the 12 months preceding the hearing. (f) Dr Stimming gave no proper weight to evidence relied on by the applicant, including positive reports from his employers and the opinions of treating practitioners. [58] Dr Stimming did not impress as an entirely objective witness who was willing to make frank reasonable concessions. To the contrary, she at times appeared unnecessarily defensive of the opinions expressed in her reports and reluctant to make reasonable concessions. [59] Finally, Dr Stimming’s opinion was ultimately expressed in such a qualified way – it became a “hypothesis” rather than a diagnosis – that, even taken at its highest, her evidence had very limited probative value. [60] I did not accept the diagnosis by Dr Stimming of an Alcohol Use Disorder. I did not accept the opinion expressed by Dr Stimming that the applicant had a condition that would or might affect his ability to practise his profession. [61] That conclusion was sufficient to determine the application to review in favour of the applicant. In the absence of acceptable expert evidence of an Alcohol Use Disorder, there was no evidential basis for the formation of a reasonable belief of an impairment. However, I should refer to other evidence that satisfied me to the contrary, that is, that based a positive finding that the applicant did not have an impairment, especially as -- 16 of 21 -- 17 such evidence also supported my conclusion that the Dr Stimming’s opinion evidence should not be accepted. Applicant’s evidence [62] The applicant swore an affidavit on 10 September 2020 and gave sworn evidence during the hearing. [63] The applicant deposed to the terms of a conversation with a patient during his locum employment in Victoria in 2016 regarding codeine, providing a plausible, innocent explanation for that aspect of the April 2016 notification.26 He deposed as follows: On 2 and 3 February 2017, I requested to be relieved of my duties because I had not slept well on nights before. The pain in my back was disturbing my sleep, and I was also sick. I was not intoxicated, and I was not asked to leave work because staff believed me to be intoxicated.27 [64] The applicant’s assertions were not contradicted by any direct evidence and were not challenged by cross-examination. [65] The applicant disputed the accuracy of his history of drug use as reported by Dr Prior.28 [66] The applicant deposed as to his inability to afford the cost of the urine drug screening being the explanation for missed tests.29 His financial circumstances and inability to find a local bulk billing psychiatrist specialising in addiction medicine led to his non- compliance with treatment conditions imposed by the Board.30 The conditions on his registration and delays by AHPRA in approvals of practice locations severely limited the applicant’s ability to obtain employment and caused him financial distress.31 [67] The applicant deposed to only becoming aware that the urine drug screening included testing for alcohol upon reading Dr Stimming’s report of 22 February 2019.32 [68] The applicant confirmed that he had attended his workplace for breath testing on days he was not rostered to work, even though not required to do so.33 [69] The applicant gave evidence that he never made a dispensing error or caused harm to a patient during his career as a pharmacist.34 Such assertion was not contradicted by other evidence or challenged by cross-examination. [70] The applicant was cross-examined extensively about inconsistencies in histories of his drug and alcohol use given by him to various persons during the preceding five years.35 He denied telling Dr Prior that he taken sample or patient returned anti- 26 Affidavit of applicant sworn 10 September 2020, para 5 (HB754). 27 Affidavit of applicant sworn 10 September 2020, para 12 (HB755). 28 Affidavit of applicant sworn 10 September 2020, paras 16 and 18 (HB755 and HB756). 29 Affidavit of applicant sworn 10 September 2020, paras 22-27 (HB756) and 35-36 (HB757). 30 Affidavit of applicant sworn 10 September 2020, paras 29-33 (HB754). 31 Affidavit of applicant sworn 10 September 2020, paras 24-25, 34, and 53 (HB756, HB757 and HB759) and T1-9- 11. 32 Affidavit of applicant sworn 10 September 2020, para 43 (HB758). 33 T1-11. 35- T1-12. 5. 34 T1-36. 35 T1-14-26 -- 17 of 21 -- 18 depressant medication from the South Australian pharmacy on occasions.36 He denied telling Dr Prior other matters Dr Prior reported.37 These parts of the applicant’s evidence were adverse to his credibility. I regarded the applicant as an unreliable historian as to past use of drugs and alcohol, particularly in 2017 and earlier years. I considered he was being less than full and frank as to the detail of those historical matters. I took such finding adverse to the applicant’s credit into account when assessing his credit generally. [71] Ultimately, however, I regarded the applicant otherwise as an honest and reliable witness. I accepted his evidence as to the conversation regarding codeine in 2016. I accepted his evidence as to the circumstances under which he absented himself from work for two days in February 2017. I accepted the applicant’s evidence as to the circumstances leading to him missing urine drug tests during 2018 and did not share the suspicions of Dr Stimming of a sinister reason. I accepted the evidence of the applicant that he had never been intoxicated in the workplace. [72] I have already referred to the evidence of nil alcohol readings by breathalyser testing each and every day the applicant worked as a pharmacist during the 12 months preceding the hearing and on additional days when the applicant attended his workplace only for the purpose of being tested. I considered that to be cogent evidence contrary to the Board’s contention of impairment. [73] The applicant’s principal supervisor provided positive reports to AHPRA throughout such period38, as did other pharmacists for whom he worked on occasions during such period.39 [74] Reports from the applicant’s treating general practitioner,40 psychologist41 and drug and alcohol counsellor42 provided no evidence to support a finding of impairment. [75] In a report dated 25 August 201943, the applicant’s treating psychologist stated that “he does not meet the criteria for Cannabis Use disorder nor alcohol use disorder nor any other mood nor psychotic state that would make him a risk to the public whilst working as a pharmacist.” [76] In a report dated 17 August 202044, the team leader of the Community AOD Service stated that the applicant “doesn’t currently or has ever met criteria as a person with drug an or alcohol use issues”, noting he is an unusual client “in that he doesn’t present with any drug and/or alcohol use issues, which would usually be our primary criteria.” [77] The applicant sought an expert opinion from Dr Gary Persley, consultant psychiatrist. Dr Persley interviewed the applicant on 27 March 2020. In a report dated 4 June 2020, 36 T1-28-29. 37 T1-32. 38 In addition to the numerous regular reports, see the statement dated 21 April 2020 (HB742). 39 See statements dated 18 April 2020 (HB741) and 22 April 2020 (HB743). 40 See, e.g., reports dated 5 April 2019 (HB595), 5 March 2020 (HB626), 18 September 2020 (SHB149) and 8 April 2021 (SHB155). 41 See, e.g., report dated 25 March 2019 (HB598). 42 See, e.g., reports dated 12 February 2020 (HB623), 10 March 2020 (HB738), 30 March 2020 (SHB139), 13 May 2020 (SHB142), 17 August 2020 (SHB145) and file note of call on 17 February 2020 (SHB132). 43 HB725. 44 SHB145. -- 18 of 21 -- 19 Dr Persley noted the earlier diagnoses by Dr Prior and Dr Stimming. He stated, inter alia, as follows: During my interview [the applicant] acknowledged that he drinks alcohol socially and recreationally. The carbohydrate deficient transferrin test (CDT) indicated exposure to alcohol but not suggestive of high usage. CDT is an indicator of exposure to alcohol but not quantitative. … The current central issue is that [the applicant] acknowledges that he consumes alcohol on what he regards as a recreational and social basis. He is not currently suffering with a major depressive disorder and a substance abuse disorder has been excluded. He has not complied with all the conditions established by the Board. [78] Dr Persley noted the positive report from the applicant’s principal employer before stating as follows: From a clinical perspective I would consider it reasonable that he return to work as a pharmacist with a practical level of supervision such as supplying breath testing for alcohol at the commencement of his shift and this be recorded in a logbook. He would attend a psychiatrist with an interest in addiction medicine on a monthly basis for six months and then at the discretion of the psychiatrist. [79] In a subsequent report dated 29 August 2020, Dr Persley stated as follows: This updated report is prepared upon receipt of recent information including a breath testing log and the report from the Community AOD Treatment Service. I note that a breath test log conducted at [the Pharmacy] from May through to 17 August 2020 recorded zero for all breath testing for alcohol. I note the team leader from the Community AOD Treatment Services stated in their report that: “[the applicant] doesn’t currently or has ever met criteria as a person with drug or alcohol use issues”. From a clinical perspective based upon my initial interview and now supported by the contemporaneous information from the treating service and also on the basis of regular random breath testing, there does not seem to be a basis that [the applicant] should continue to have any restrictions placed upon his return to work as a pharmacist. The specialist AOTD service state [sic] there is not a condition to treat. I was confident that he did not suffer with depression at the time of my assessment. To the best of my knowledge he has not been subjected to any complaint about errors in his dispensing of medication. He has received a personal reference which indicated that he has received positive feedback in the workplace. [80] In his evidence during the hearing, Dr Persley agreed that the subsequent nil results from breathalyser testing confirmed his opinion expressed in his report of 29 August 2020 that there was no basis for continued restrictions on the applicant’s work as a pharmacist. [81] During cross-examination, Dr Persley agreed that Alcohol Use Disorder is a chronic, relapsing and remitting medical disorder with the risk of relapse a material life long risk. He agreed that relapse in depression could increase the risk of relapse of Alcohol Use Disorder. He agreed that an increase in working hours could increase the risk of relapse such that a graduated return to work with some initial further breath testing and continued medical treatment would be recommended. -- 19 of 21 -- 20 [82] This evidence from Dr Persley was clearly on the assumption that the applicant suffered from an Alcohol Use Disorder that was in remission. Dr Persley never himself diagnosed the applicant with an Alcohol Use Disorder. I gained the impression from his written and oral evidence that he was prepared to act upon an assumption of the accuracy of the diagnosis by Dr Stimming in expression of his own opinions as to the need for any current restrictions on the applicant’s practice. I did not regard Dr Persley’s evidence as supporting a finding that the applicant ever suffered from an Alcohol Use Disorder. I regarded his evidence as supporting a finding that the applicant was not suffering an impairment at the time of hearing. Conclusion [83] I agreed with the Board’s decision in June 2016 that the April 2016 notification was lacking in substance. It did not become more substantial in hindsight in light of the February 2017 notification and could not, at the time of the hearing, provide any proper support for a finding that the applicant suffered an Alcohol Use Disorder and consequent impairment. [84] The evidence that the applicant was intoxicated at work in February 2017 was tenuous and, in light of the applicant’s sworn denial, could not, at the time of the hearing, provide any proper support for a finding that the applicant suffered an Alcohol Use Disorder and consequent impairment. [85] I consider the diagnosis by Dr Prior in 2017 of a Substance Abuse Disorder to be somewhat dubious, even if the history of use was accurately reported. However, I need not resolve that matter. There was no subsequent evidence of illicit drug use and all the evidence is to the contrary that the applicant continued to suffer a Substance Abuse Disorder. The Board, effectively, did not contend for a finding other than that an Alcohol Use Disorder caused the applicant’s impairment. [86] For reasons given earlier, I did not accept Dr Stimming’s diagnosis of an Alcohol Use Disorder. Indeed, I found it likely that the applicant had never suffered an Alcohol Use Disorder, given the lack of any substantial evidence to support such a diagnosis and the wealth of evidence to the contrary. [87] I did not hold a reasonable belief that the applicant may have an “impairment” within the meaning of that term as defined in the National Law. Therefore, the correct and preferable decision was to make orders setting aside the decisions of the Board and substituting decisions with the effect that all conditions that had been imposed on the applicant’s registration were removed. [88] Had I accepted the correctness of a diagnosis of an Alcohol Use Disorder in remission, I would nonetheless have reached the same conclusion. Such a disorder being in sustained remission, I would not have formed a reasonable belief that such disorder detrimentally affected or was likely to detrimentally affect the applicant’s capacity to practise as a pharmacist. I would have rejected the Board’s contention that a gradual relaxation of conditions was required to safeguard against the risk of relapse because of increased stress from increase in working hours. I would have preferred the submission of the applicant that the stress of continued restriction of his registration far outweighed any potential risk associated with an increase in working hours. [89] I commend the applicant for his persistence and determination in his efforts to satisfy the Board of his fitness to practise, to the extent of undergoing counselling when even the counsellors questioned its utility and subjecting himself to even more breath -- 20 of 21 -- 21 testing than required. It is clear that the applicant, understandably, found the four year period of suspensions and restriction of his registration frustrating and stressful. It is to the applicant’s credit that he continued to engage with the regulatory and Tribunal process in a positive way despite that frustration and stress. -- 21 of 21 --