Birchley v Medical Board of Queensland [2002] QHPT 5

HEALTH PRACTITIONERS TRIBUNAL OF QUEENSLAND CITATION: Birchley v Medical Board of Queensland [2002] QHPT 005 PARTIES: Birchley Registrant/Appellant v MEDICAL BOARD OF QUEENSLAND Registrant’s Board/Respondent FILE NO/S: D 2235 of 2002 DIVISION: Health Practitioners Tribunal PROCEEDING: Disciplinary Action ORIGINATING COURT: Brisbane DELIVERED ON: 13 September 2002 DELIVERED AT: Brisbane HEARING DATE: 13 August 2002 JUDGE: Judge O’Brien Assisted by Dr D Evans, Dr A Richards and Dr M Shapiro ORDER: THAT THESE TWO APPEALS SHOULD BE DISMISSED SAVE TO THE EXTENT THAT THE PERIOD DURING WHICH THE APPELLANT MUST ATTEND FOR URINE DRUG SCREENING IS REDUCED FROM ONE OF 18 MONTHS TO ONE OF 12 MONTHS. CATCHWORDS: Appeal of Registrant against conditions imposed by the Medical Board;UDS programme”; Registrant charged with indictable offence; meaning and construction of impairment, whether previous alcohol and drug abuse constitutes impairment. Health Practitioners (Professional Standards) Act 1999 s 6, Part 7, Schedule to the Act COUNSEL: Ms K McMillan for the Medical Board Mr A Rafter for the Registrant SOLICITORS: Phillips Fox for the Medical Board Harry McCay for the Registrant -- 1 of 11 -- 2 [1] This is the hearing of two appeals against decisions of the Medical Board of Queensland. The first of those decisions made on 4 March 2002 was that the appellant was impaired and the second dated 14 May 2002 involved the imposition of the following conditions on the appellant’s registration:- (a) That he totally abstain from ingesting alcohol; (b) That the appellant attend for treatment by a psychiatrist of his choice experienced in the treatment of drug and/or alcohol related problems at a frequency to be determined by the treating psychiatrist, and further that the appellant authorise the treating psychiatrist to inform the respondent in the event of termination of treatment or if there is a significant change in his health status; (c) The appellant continue under the medical supervision of an experienced general practitioner who should be responsible for prescribing and supervising all medications taken by the appellant, except those prescribed by the appellant’s treating specialists; (d) The appellant not self prescribe medication nor self administer any Schedule 4 drugs; (e) The appellant attend for urine drug screening, commencing at Level 4, in accordance with the respondent’s protocol for a period of 18 months; (f) The appellant attend for review with a practitioner nominated by the respondent, as directed by the respondent, at his expense. The first review to be in six months; (g) The appellant authorise the Health Insurance Commission to release to the respondent information relating to his prescription of Schedule 4 and Schedule 8 drugs; -- 2 of 11 -- 3 (h) The appellant authorise Queensland Health to release to the respondent information relating to his prescription of Schedule 4 and Schedule 8 drugs. Of these conditions, it is only those referred to in paragraphs (e) and (f) that are the subject of challenge by the appellant. The appellant contends that the Board erred in its finding that he was impaired within the meaning of the Act and, in any event, that the conditions referred to above “were unnecessary, unreasonable and not the conditions which are the least onerous necessary to protect vulnerable persons”. [2] The appellant has been a medical practitioner since 1979 and commenced his own general practice in 1983. It seems that he has had a problem with alcohol since about 1984 although he claims that he has never been intoxicated whilst practising medicine. Since the early 1990’s he has been involved with support groups such as Alcoholics Anonymous and maintains that he has consumed no alcohol since 1996. He is a sober alcoholic. [3] On 9 April 2000 following a dispute with his then girlfriend, the appellant consumed some Benzodiazepines resulting in what has been termed an “amnesic period” during which a fire was started at the home of the girlfriend. There is some suggestion that the appellant, who has been charged with an offence of attempted arson, attempted to stamp out the fire and sustained burns to both feet. [4] The respondent Medical Board of Queensland became aware of the offence which took place on 9 April 2000 as the result of a telephone call received by the Board on 19 May 2000. The Board then required the appellant to undergo a health assessment conducted by Dr Frank New, psychiatrist. Dr New’s report makes -- 3 of 11 -- 4 reference to the fact that the appellant claimed to have been under considerable stress during the time leading up to the events of 9 April 2000 and his report includes the following:- “He has reconstructed events from information obtained, including watching a video of his own interview with police on the following Sunday. He noted that during this interview he was obviously slurring and the interviewing police made comments enquiring about his welfare as if concerned about his ability to continue. He now understands that he had written a script in the name of (his girlfriend) and had it dispensed on Saturday evening. It is apparent that he had taken 10 x 30 mg Cerapax, an uncertain number of Normason, and Mogadon (probably a sample packet). On Sunday morning Glenda, an AA colleague who lived nearby and who is his sponsor, telephoned him and later reported that he was ‘raving, rambling, slurring, with no idea of the time’ and essentially ‘drunk’. He had had no alcohol. He had apparently also had several phone conversations with (his girlfriend) who reported that he was very disorganised. He now understands that at approximately 10.30 a.m. he carried a gerry can of petrol across to (his girlfriend’s) house. He apparently stated in the police interview consistently that he intended to repair her lawn mower which had broken down. This would have involved washing parts in petrol. He is not aware of how a fire started. He describes there being scorch marks on the cement, on walls, a glass door being cracked, and smoke being inside the house. He also describes apparently having attempted to stamp out the fire, and having sustained burns to both feet, having been wearing thongs or light shoes. He observed at interview that he made no indication that he felt pain, some four hours after the event, although his burns were sufficiently severe to leave him with scarring on his feet. The police conducted him to Princess Alexandra Hospital Accident and Emergency for burns dressings although apparently no intoxication was noted by the doctor who attended him. It is not clear that the doctor specifically tested for signs of intoxication. Police, who later searched his house, found the remaining Cerapax. ... -- 4 of 11 -- 5 It is also of note that he wrote a further script for himself for 100 Normason, having this dispensed on 19.4.2000, after this event. Since that time he has taken 17, before he came to realise the seriousness of his self prescribing. He has subsequently handed the remaining 76 tablets to Dr Spelman. ‘I realised I was in terrible trouble with Benzodiazepines’, and he has sought the assistance of his colleagues with AA. He has now accepted a committment to be completely drug free, not having accepted this advice previously. He has of his own initiative arranged weekly urine drug screens which are apparently clear.” [5] Dr New goes on to express the view that the appellant is not currently impaired although “with his history of alcohol abuse, anxiety and depressive reactions, and with his recent Benzodiazepine binge, there is a risk of future impairment indicating the need for caution and supervision”. Dr New considers that the appellant remains at risk of relapse in the future, particularly at times of relationship stress but this risk is not so great as to prevent him continuing medical practice provided he is subject to supervision and other conditions which include involvement in the urinary drug screening (UDS) programme. Dr New concludes his report as follows:- “I expect that his recent relationship has ended, with this removing a significant stress, though there are still very significant outstanding stresses that he has yet to negotiate. He remains more vulnerable than usual, and he will need extra support during this time, both social and professional. I expect his increased insight will assist him to arrange and use this”. [6] Ultimately at a meeting of 10 April 2001, the Board resolved to refer the matter to a Health Assessment Committee established pursuant to Part 7 of the Act to conduct a health assessment of the appellant. [7] In a submission to the Committee dated 19 December 2001, the appellant made reference to his efforts in dealing with alcohol abuse and to the fact that he had been under the care of a psychiatrist, Dr Mark Spelman since 1991. His submission included the following:- -- 5 of 11 -- 6 “There is of course also the concern about the use of Benzodiazepines having regard to the events of last year. I do not believe that I was at any time addicted to Benzodiazepines. I am aware that there is a possibility of cross addiction and their use last year at a time of stress is an indication of a potential problem. I have between April last year and now addressed that by refraining from taking Benzodiazepines altogether and seeking regular assistance from Dr Spelman. I believe the most reliable options to safeguard the public are frequent contact with Dr Spelman and regular contact with AA.” The appellant maintained that participation in the UDS programme would represent a denial of the advances he has made since 1996 and he argues further that there would be practical difficulties in his participation in the programme. The appellant also provided a report from his treating psychiatrist, Dr Mark Spelman, who agreed with the assessment of Dr New and who recognized that “the difficulty remains of how best to protect the public should (the appellant) have problems in the future similar to the incident last April with the episode of loss of control associated with binge Benzodiazepine intoxication”. Dr Spelman continues:- “In terms of general measures, I would agree with Dr New’s recommendations apart from his involvement in compulsory urinary drug screening (UDS) programmes. Dr B’s difficulties of last April would not, in my opinion, have been prevented by his involvement in ongoing UDS programmes. To the best of my knowledge, he does not have an ongoing problem with Benzodiazepine or alcohol use. In my opinion, the most important factor in ensuring the public’s safety, in this case, relates to helping him recognise the nature of his vulnerability to decompensation when under stress particularly in close interpersonal relationships. Continuing to provide him with an opportunity to look at these issues and improve his coping strategies in these situations is likely, in my opinion, to be the most effective prevention strategy.” Dr Spelman refers to the appellant’s “immersion and loss of identity associated with being in close relationships” and considers that this could best be addressed by ongoing therapy rather than involvement in the UDS programme which might -- 6 of 11 -- 7 disempower or restrict the appellant in a way that might increase the risk of future problems. [8] On 26 September 2001 the Committee, which comprised Dr Michael Bolton, Dr Jill Reddan, and Dr John Waller, provided a report which included the following findings:- “... the committee is of the view that Dr B has suffered very significant problems related to the abuse of alcohol and drugs (specifically Benzodiazepines) in the past. The Committee believes that the current review of Dr B’s health being undertaken by the Medical Board of Queensland and the impending criminal court case with which he is faced as well as causing significant stress for Dr B, could have been strong motivators for Dr B to abstain entirely from any self medication with drugs in the latter half of 2000 and during the year 2001. The committee accepts Dr B’s statements about his intention not to use alcohol or Benzodiazepines or to self prescribe any drug in the future and about his intention to continue attendance for treatment with Dr Spelman and at regular AA meetings. The committee agrees that these meetings and Dr Spelman’s treatment have been of great assistance and support to Dr B and will continue to be so in the future. Nevertheless, the committee notes Dr B’s own acceptance of his alcohol dependence and the fact that 18 months ago he apparently had a period of intoxication on Benzodiazepines which is of such severity that it resulted in behaviour (of which he has no recollection) which may have put himself and others at significant risk. The committee notes that Dr B was apparently under very severe stress at the time of this episode but remains concerned that significantly stressful situations could occur in the future and that, in the absence of any supervision, Dr B might again take Benzodiazepines in a matter which could result in his intoxication with those drugs. The committee noted that, although Dr B indicated that he had many supports, he did not utilise those immediately prior to the incident which led to his being charged in April 2000. The committee was also concerned by the fact that Dr B appears to have particular problems recognising and dealing with his anger. Hence the committee is of the view that Dr B is impaired in accordance with the definition of ‘impairment’ in the Health Practitioners (Professional Standards) Act 1999.” The Committee then proceeded to make a number of recommendations including a recommendation that the appellant should attend for urine drug screening, -- 7 of 11 -- 8 commencing at Level 4, in accordance with the Board’s protocol and a further recommendation that he attend for review with a Board nominated practitioner. [9] Ultimately the Board having considered the findings of the Committee and a submission made by the appellant and acting on its powers under Part 7 of the Act, determined that the appellant was impaired within the meaning of the Act and made the further determinations which are the subject of these appeals. [10] The term “impairment” is defined in the Schedule to the Act as follows:- “’impairment’, of a registrant, means the registrant has a physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the registrant’s physical or mental capacity to perform the registrant’s profession and includes substance abuse or dependence”. In considering this definition it is useful to keep in mind the objects of the Act as set out in s.6. Those objects include the following:- (a) to protect the public by ensuring health care is delivered by registrants in a professional, safe and competent way; and (b) to uphold the standards of practice within the health professions; and (c) to maintain public confidence in the health professions. Given the purposes of the Act and the very wide nature of the definition set out above, I would consider that substance abuse or dependency may of itself constitute an impairment for the purposes of the Act. In any event, Mr Rafter who appears for the appellant has argued that his client has not been shown to fall within the definition as set out above. He relies in particular upon the opinion of Drs New and Spelman to which reference has been made above. -- 8 of 11 -- 9 [11] In my view however, the Board was not bound to accept as determinative of the issue the words used by Dr New in August 2000 in saying that the appellant was not “currently” impaired. Given the wording of the definition and its reference to a disorder, etc. that affects or is likely to affect a registrant’s capacity, it may not even be entirely certain what conclusion Dr New was in fact expressing in that regard. It should be remembered also that Dr New did make certain strict recommendations in relation to the appellant’s continued practice of medicine. The Committee itself was constituted by highly qualified medical practitioners, including a psychiatrist, who were well placed to make their own assessment of the appellant. In making that assessment they considered inter alia the reports which they had from Drs New and Spelman. What the Committee and ultimately the Board has, in reality, concluded is that the appellant had a condition which is likely to detrimentally affect his ability to perform his profession. [12] In reaching this view, the Committee (and Board) had Dr New’s assessment of a man with a “history of alcohol abuse, anxiety and depressive reactions”. He is a man who, in the opinion of Dr Spelman has demonstrated a “vulnerability to decompensation when under stress particularly in close personal relationships” and it was that fact which apparently contributed significantly to the Benzodiazepine abuse and the incident of April 2000, an incident which obviously posed a real risk of harm to the appellant and to others. The clear opinion of Dr New is that he remains at risk of relapse. It is argued for the appellant that in the event of future relapse he has the coping strategies available in the form of Alcoholics Anonymous support groups, his contact with Dr Spelman and the assistance of his work colleagues. It is also said that absence of similar behaviour since demonstrates that the incident was a “one off” occurrence. It is fairly said however that those same -- 9 of 11 -- 10 supports now available to the appellant were available to him in April 2000. Moreover, as the Committee recognised the impending criminal proceedings and the present action by the Board obviously provide strong inhibiting factors so far as drug relapse is concerned. [13] Given the whole of the material it was, in my view, properly open to the Board to conclude that the appellant was impaired within the meaning of the Act. [14] So far as the requirement of participation in the UDS programme is concerned, the requirement is that he should participate at Level 4 in accordance with the Board’s protocol. That protocol is based upon a number of principles, one of which is that UDS has been shown repeatedly around the world to be one of the best rehabilitation tools available in treating health professionals and another of which is that it provides a constant deterrent against relapse. A further relevant principle is that urine drug screening provides the Board with ongoing evidence that a registrant is drug free. There are six levels of frequency of urine drug screening, with Level 4 being one of the lower levels requiring, approximately, only two to four tests per month. Such a level of testing can scarcely be described as unduly intrusive or oppressive. It has been said that such testing would not have prevented the incident of April 2000. That may or may not be so, but what the testing can achieve is a minimization of the risk of such an incident occurring in the future. Generally, as to the desirability of the complainant participating in the UDS programme I prefer to accept what I consider to be the more objective opinion of Dr New to that expressed by Dr Spelman. -- 10 of 11 -- 11 [15] The condition requiring urine drug screening is in my opinion entirely appropriate given the history of the appellant and the objects of the Act to which I have referred. I accept the submission of Mr Rafter however that it would be appropriate given the passage of time, to reduce the period of 18 months to one of 12 months, although I consider that sampling should remain at Level 4 throughout that period. [16] In relation to the condition requiring review by a nominated practitioner, Mr Rafter submitted that if the first six monthly review proved satisfactory, then there should be no requirement for any review thereafter. Again however one must be mindful of the objects of the legislation and of the need for ongoing supervision recognized by both Dr New and Dr Spelman. In my view the condition is a reasonable one and I find no basis for its removal. [17] It follows from all of the above that these two appeals should be dismissed save to the extent that the period during which the appellant must attend for urine drug screening is reduced from one of 18 months to one of 12 months. -- 11 of 11 --