VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z689/2022
	
CATCHWORDS	
Review and Regulation List - Health Practitioner Regulation National Law (Victoria) Act 2009 – registered paramedic – agreed statement – allegations that respondent practised on a day in 2020 while he would have been affected by methamphetamine such that his ability to perform complex tasks would have been impaired, and with the presence of methamphetamine, cannabis, amphetamine, codeine and delta-9-TCH-COOH in his system – related allegation that for approximately 12 months respondent failed to manage his health – allegations admitted – immediate action taken in 2020 to suspend respondent’s registration – respondent then diagnosed with severe substance use disorders – expert opinion in 2023 that respondent no longer suffered those disorders - professional misconduct - reprimand – imposition of conditions on registration including for drug screening and psychological treatment - suspension of registration for 12 months from date of order.    	
APPLICANT	Paramedicine Board of Australia	
RESPONDENT	Michael Graham 	
WHERE HELD	Melbourne	
BEFORE	J Billings, Senior Member 
C Jones ASM, Member 
E Rankins, Member	
HEARING TYPE	Hearing via video conference 	
DATE OF HEARING	22 May 2024	
DATE OF ORDER	6 June 2024 	
CITATION	Paramedicine Board of Australia v Graham (Review and Regulation) [2024] VCAT 534 	
Order
1	Under section 196(2)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law) Michael Graham is reprimanded.
2	Under section 196(2)(b) of the National Law, conditions are imposed on Michael Graham’s registration as set out in the attachment to the Tribunal’s reasons for decision. 
3	Under section 196(2)(d) of the National Law, Michael Graham’s registration as a health practitioner is suspended for a period of 12 months from the date of this order.
J Billings 
Senior Member and Presiding Member  	C Jones ASM
Health Practitioner Member	E Rankins
Health Practitioner Member 	
APPEARANCES:		
For Applicant 	Mr B Jellis of counsel.	
For Respondent	Ms K McKay of counsel. 	

Reasons
1	The Paramedicine Board of Australia (the Board) has referred to the Tribunal allegations about the respondent registered paramedic, Michael Graham, under section 193 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law).  The referral was dated 14 September 2022.  The referral attached a Notice of Allegations that has since been amended.
2	Mr Graham is aged in his early fifties.  At material times, Mr Graham was a registered paramedic employed by Ambulance Victoria (AV).  He was registered as a paramedic in mid-2019 though his employment in that profession dates from 2005 when he was aged in his early thirties.  He worked in various occupations and obtained his qualifications before then.       
3	In circumstances discussed further below, the Board suspended Mr Graham’s registration in 2020 after a drug test conducted at his workplace disclosed the presence of illicit substances.  His registration remains suspended.  Mr Graham was diagnosed in 2020 with severe substance use disorders but he was assessed in 2023 as no longer suffering those disorders.  There is evidence that Mr Graham has not used illicit substances for a considerable time.  
4	The parties submitted a ‘Proposed Statement of Agreed Facts, Findings and Determinations’ (Agreed Statement) dated in October 2023.  Mr Graham admits the allegations and agrees with the Board that he should be reprimanded and have relevant conditions imposed on his registration.  But whereas the Board seeks an order suspending Mr Graham’s registration for the period of 12 months, Mr Graham argues that there should be no suspension in the circumstances of the case.   
5	We conducted a hearing on 22 May 2024.  Mr Graham gave oral evidence at the hearing and was briefly cross-examined.  Mr Jellis, on behalf of the Board, and Ms McKay, on behalf of Mr Graham, provided written submissions and made oral submissions at the hearing. 
The allegations and surrounding circumstances 
6	We set out the amended notice of allegations below.  First, we summarise the allegations and refer to important context, drawn from the Agreed Statement and other material provided to us.  
7	The Board alleges that on 5 June 2020 Mr Graham engaged in professional misconduct or other relevant conduct in that he practised the profession of paramedicine while he would have been affected by methamphetamine such that his ability to perform complex tasks (such as driving and other duties) would have been impaired, and with the presence of methamphetamine, cannabis, amphetamine, codeine and delta-9-TCH-COOH (indicative of the use of cannabis) in his system (the relevant drugs).   The Board further alleges that from 30 May 2019, or from about that day, until 5 June 2020, Mr Graham engaged in professional misconduct or other relevant conduct in that he failed to manage his health.   
8	On 5 June 2020 Mr Graham commenced a rostered shift with AV from the Frankston branch as an Advanced Life Support (ALS) paramedic where he worked in a crew of two paramedics.  Mr Graham drove an ambulance on at least one case during this shift.  During the day he was required to undergo alcohol and other drug testing.  First there was an oral fluid test.  There was a positive result for amphetamine-type substances, including methamphetamine.  Secondly, there was a urine test.  Before he provided a urine sample, Mr Graham declared that he had taken cannabis and applied steroid cream (in the previous 48 hours).  There was a positive result for methamphetamine, amphetamine, codeine and cannabis substances.   
9	AV placed Mr Graham on temporary leave on 5 June pending the outcome of laboratory testing to confirm the results.  On 29 June the laboratory report confirmed the presence of the relevant drugs.  The report stated that the results were consistent with the consumption of a markedly large dose of methamphetamine within the last 24 hours or thereabouts of the collection of samples; regular methamphetamine use; and the consumption of codeine.  The report said in effect that Mr Graham would have had some significant complex task performance impairment at the time of collection.  
10	AV’s relevant officer made a mandatory notification to the Board on 12 June 2020 and on 30 June 2020 the Board’s Immediate Action Committee took immediate action to suspend Mr Graham’s registration on the basis that it was necessary to protect public health and safety.  
11	In an interview with AV’s Professional Conduct Unit on 24 June 2020, Mr Graham admitted to withholding information at the time of testing when confronted with the drug tests: when he declared prior to giving a urine sample that he had used cannabis and applied a steroid cream.  He said that he ‘sort of panicked’ at the time.  According to the laboratory results, his declaration was not consistent with those results (regarding methamphetamine, amphetamine and codeine).   Mr Graham further admitted to using methamphetamine intermittently, and in the days prior to 5 June 2020.  He said that he had used methamphetamine for a year and a half to two years previously, and that his use had been increasing very slowly over the period.  (In an affidavit made on 26 March 2024, Mr Graham said that he did not consume methamphetamine within or around approximately 24 hours before the collection of samples on 5 June 2020.  He deposed that he last used methamphetamine on the evening of 3 June or the early hours of 4 June.  He said that he accepted that this meant that he had a high level of amphetamine in his system in the days preceding the positive result, which remained in his system when he attended work on 5 June.  He said he did not use, and had never knowingly used, opiates).  
12	On 30 June 2020 the Board decided to require Mr Graham to undergo a health assessment.  In September 2020, as part of the health assessment, Mr Graham underwent a pre-assessment pathology blood screen and urine drug and alcohol screen.  
13	Mr Graham’s employment with AV was terminated in September 2020.  
14	In December 2020 Mr Graham underwent the health assessment with a specialist in Addiction Medicine, Dr Phillip Crowley.  Dr Crowley provided a report in which he expressed the opinion that Mr Graham had an impairment that detrimentally affected or was likely to detrimentally affect his capacity to practice his profession as a paramedic: Severe Methamphetamine Use Disorder, and Severe Cannabis Use Disorder.  
15	There was further relevant information, according to Dr Crowley.  Mr Graham reported a history of methamphetamine and cannabis use.  He had been rostered as a paramedic four days on and four days off, and he reported a pattern of using methamphetamine and cannabis on his days off; he reported regular cannabis use when in his thirties and a return to regular methamphetamine use when in his forties (after commencing at age 16 and abstaining in his twenties and thirties); he reported having ceased methamphetamine and cannabis use after the incident on 5 June 2020 although the pathology testing (in September 2020) indicated a positive result for cannabis use.  
16	Dr Crowley expressed the opinion in particular that it would not be appropriate for Mr Graham to practice as a paramedic until he had been in a state of sustained remission from the substance use disorders, demonstrated by ongoing negative test results.  He recommended, among other things, that Mr Graham provide to the regulator evidence of relevant treatment by his psychologist or General Practitioner.  
17	Mr Graham underwent a supplementary health assessment by Dr Crowley in the middle of 2023.  Dr Crowley considered material including Mr Graham’s urine screening results and reports by Mr Graham’s GP and his psychologist and provided a supplementary report in July 2023.  In August 2023 he provided an amended report and a response to the Board’s request for clarification of certain matters.  In particular, Dr Crowley recorded that Mr Graham reported using cannabis and methamphetamine for about five years prior to detection in June 2020.  Dr Crowley expressed the opinion that Mr Graham no longer suffered from a substance use disorder or substance dependence diagnosis that may detrimentally affect or be likely to detrimentally affect his capacity to practise his profession.  Mr Graham had demonstrated a sustained recovery and Dr Crowley considered the risk of further substance use was low.  While Dr Crowley no longer considered that Mr Graham could be compelled to undergo drug screening, he did recommend that any future health employer be made aware of Mr Graham’s substance use history to ensure he had appropriate workplace testing.  Dr Crowley observed that Mr Graham has limited scalp hair which would make hair testing not feasible.  He indicated that it may nevertheless be useful for Mr Graham to agree to participate in a relevant substance testing program to improve the regulator’s confidence that he remained free of substance use.    
The further evidence
18	The Tribunal Book includes the Board’s investigation materials; AV’s investigation report made in July 2024; the Record of Interview conducted by AV’s Professional Conduct Unit; and laboratory and health assessment reports.  Mr Graham’s materials in the Tribunal Book and some supplementary materials include the affidavit he made on 26 March 2024; character references; reports by his GP and psychologist; and numerous urine drug screening reports.  
19	At about the time of Mr Graham’s interview with AV in June 2020, he wrote to AV and acknowledged the seriousness of his conduct.  He expressed his intention to become and remain ‘drug free’, declaring that he had commenced treatment (with Mr Ian Stapleton, his psychologist, he later confirmed).  Writing to AV in August 2020 (in response to a letter by AV inviting him to show cause why his employment should not be terminated), Mr Graham described feelings of shame and guilt and disappointment in himself.  He referred, among other things, to personal, financial and mental health issues he had, but he said that he was ‘in no way unique’ in having such problems and that those matters did not excuse his behaviour.  Mr Graham said that in ‘the cold light of day’ it was ‘actually sickening’ to consider the risks and ramifications involved, and that he had only his ‘poor decision’ to blame.  He apologised to AV, his colleagues and the Victorian community which, he acknowledged, expects and deserves better from paramedics.  In November 2021, when Mr Graham participated in a discussion of Dr Crowley’s report with the Board’s nominee, it was noted that he considered the diagnosis of a ‘severe’ disorder was ‘excessive’.  Nevertheless, he agreed ‘overall’ with the report.  Mr Graham declared that he had not used (illicit) substances for over a year.  The Board noted that he ‘did demonstrate some insight into [his] health matter’.  The next month, December 2021, Mr Graham wrote to the regulator and said he had not consumed any illicit drug in well over 12 months and that was committed to remaining abstinent in future.  He said he would comply with conditions, including for drug testing, if imposed.  Among other things, Mr Graham informed the regulator about his plans to resume consultations with his psychologist.  
20	In a letter dated 22 February 2023, Dr Caleb Lim, Mr Graham’s GP, confirmed that he had been treating him since December 2021.  Dr Lim described Mr Graham as fit and well to return to work as a paramedic.  Dr Lim referred to evidence that Mr Graham had not used amphetamines since July 2020 or cannabis since August 2020.  He noted there were numerous clear drug screening results and that Mr Graham had expressed the motivation never to use illicit substances again.  Dr Lim expressed the belief that Mr Graham’s capacity to practise as a paramedic would not (now) be detrimentally affected, though he said that random drug testing in future may be appropriate.   
21	Mr Stapleton, the psychologist, made a report for Mr Graham’s lawyers in March 2023.  Mr Stapleton said that Mr Graham had attended on more than 20 occasions for treatment of conditions including his substance use disorders.  He described Mr Graham as ‘completely compliant’ with and supportive of his therapy which therapy was expected to continue.  Mr Stapleton referred to a range of relevant tests he had administered.  He expressed the opinion that Mr Graham did not have any impairment, disability or condition, including any substance abuse or dependence, that would or would be likely to detrimentally affect his capacity to practise as a paramedic.  Mr Stapleton said that he did not believe that Mr Graham posed a serious risk to the public, adding that he would endorse Mr Graham returning to practice as a paramedic.    
22	In his oral evidence, elaborating on the contents of his affidavit, Mr Graham told us that he has been in a stable personal relationship for nearly 20 years.  Mr Graham said that his partner disapproved of his past drug use and that she would not tolerate any relapse.  Since he was suspended, Mr Graham has not been in paid employment but he has undergone training and worked as a volunteer firefighter with the Country Fire Authority (CFA).  He has completed well over 150 call outs.  This work has included driving emergency vehicles.  He has been involved in training new recruits.  Mr Graham has also been caring for his elderly, ill mother and assisting his elderly father-in-law.  He has undertaken or is in the process of undertaking various courses.  
23	Mr Graham provided character references from Mr Kevin Rogers, his former AV team manager, and Captain Joshua Caron, his CFA supervisor.  Both referees indicated their knowledge about Mr Graham’s problems with drugs and the Board’s allegations.  Both of them expressed views as to Mr Graham’s good character.  Mr Rogers made observations about Mr Graham’s performance as a paramedic and expressed the view that his exclusion from the profession would be a great loss to the community.  
24	The further evidence includes Mr Graham’s urine screening results.  We were informed that while Mr Graham undertook the tests voluntarily, he was not out of pocket.  The date range was from June 2022 to May 2024.  The results were ‘Negative/no substance detected’.  
AMENDED NOTICE OF ALLEGATIONS
Practising while he would have been substance affected and with the presence of drugs in his system

1	On 5 June 2020, Mr Graham engaged in:
(a)	professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or
(b)	unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law; and/or
(c)	unsatisfactory professional performance within the meaning of the definition of unsatisfactory professional performance in s 5 of the National Law,
in that he practised the profession of paramedicine while he would have been affected by methamphetamine such that his ability to perform complex tasks would have been impaired, and with the presence of methamphetamine, cannabis, amphetamine, codeine and delta-9-THC-COOH in his system,

Particulars
The particulars include, but are not limited to:
1.1	On 30 May 2019, Mr Graham was first registered with the Board, registration number (PAR0002279956).
1.2	At all material times Mr Graham was:
(a)	a registered paramedic within the meaning of the National Law; and
(b)	employed by Ambulance Victoria

1.3	On June 2020, Mr Graham commenced a rostered shift at 7 am with Ambulance Victoria from the Frankston branch as an Advanced Life Support (ALS) paramedic where he undertook the role as ‘driver’ in a crew of two paramedics. Mr Graham drove an ambulance vehicle during this shift.
1.4	Between 4:00 pm to 4:15 pm, Mr Graham was advised that he was required to undertake Alcohol and Other Drug testing. Mr Graham’s shift was due to finish at 5:00 pm.
1.5	At approximately 4:15 pm, Mr Graham undertook the first test, an oral fluid test, which detected a positive result for amphetamine type substances, including methamphetamine.
1.6	Prior to the second test, Mr Graham declared use of cannabis and steroid cream.
1.7	At approximately 4:37 pm, Mr Graham undertook a urine drug test which detected methamphetamine, amphetamine, codeine and cannabis substances.
1.8	On 29 June 2020, the Safework Laboratories Report (Report) confirmed testing on the samples provided by Mr Graham on 5 June 2020. Relevantly:
(a)	Oral fluid results confirmed the following levels:
(i)	methamphetamines 20061 ng/mL; and
(ii)	amphetamine 1833 ng/mL.
(b)	Urine test results confirmed the following levels:
(i)	methylamphetamine 54,225 ug/L;
(ii)	amphetamine 7736 ug/L;
(iii)	codeine 2105 ug/L; and
(iv)	delta-9-THC of 1747 ug/L.
(c)	The Report confirmed that the results are consistent with the following:
(i)	the consumption of a markedly large dose of methamphetamine within the last 24 hrs of collection (assuming high dose, it would be within 18+12 hrs; range of 6 or 8 hrs to 30 hrs maximum, with a more recent time of ingestion being more likely);
(ii)	regular methamphetamine use - the high dose used implies the donor may have developed significant tolerance to methamphetamine;
(iii)	the donor would have had some significant complex task performance impairment at the time of collection;
(iv)	consumption of codeine. (Codeine was detected – no stated medications given); and
(v)	consumption of codeine. (Codeine was detected – no stated medications given).
1.9	Mr Graham admits to withholding information at the time of testing when confronted with the drug tests.
1.10	On 30 June 2020, the Board decided to require Mr Graham to undergo a health assessment.
1.11	On 16 September 2020, as part of the health assessment, Mr Graham undertook a pre-assessment pathology blood screen and urine drug and alcohol screen with QML Pathology: The urine drug test was positive for doxylamine and cannabinoids. There was no evidence of recent or ongoing alcohol abuse.  
1.12	On 3 December 2020, in accordance with s 169 of the National Law, Mr Graham underwent the health assessment with Dr Phillip Crowley, a specialist in Addiction Medicine. Dr Crowley provided a report to the Board dated 7 December 2020 in which he opined, amongst other things, that Mr Graham has an impairment which detrimentally affects or is likely to detrimentally affect his capacity to practise his profession as a paramedic, namely:
(a)	Severe Methamphetamine Use Disorder; and
(b)	Severe Cannabis Use Disorder.
1.13	Dr Crowley opined that it would not be appropriate for Mr Graham to practise as a paramedic until he has been in a state of sustained remission from both disorders.
1.14	Relevantly, Mr Graham:
(a)	had a history of methamphetamine and cannabis use;
(b)	met eight Methamphetamine use disorder diagnostic criteria for the 12-month period according to the American Psychiatric Association diagnostic criteria version 5 or Methamphetamine Dependence according to WHO ICD 10 criteria;
(c)	met seven Cannabis Use Disorder diagnostic criteria for the 12-month period according to the American Psychiatric Association diagnostic criteria version 5 or Cannabis Dependence according to WHO ICD 10 criteria;
(d)	was rostered as a paramedic four days on and four days off; on his days off he reported to have a pattern of cannabis and methamphetamine use;
(e)	would, over the four-day period on his days off, typically use methamphetamine on one to two days of this period and would typically ingest between 0 and 3 grams in total;
(f)	reported regular cannabis use in his thirties and regular methamphetamines use in his forties; and
(g)	reported to have ceased cannabis and methamphetamine use following the incident on 5 June 2020, however the QML Pathology Testing referred to at paragraph 1.11 indicated a positive result for cannabis use.
1.15	On 5 June 2020, Mr Graham practised the profession of paramedicine and drove a motor vehicle while he would have been affected by methamphetamine and with the presence of cannabis, methamphetamine, amphetamine, codeine and delta-9-THC-COOH in his system.
1.16	Practising with the presence of methamphetamine in his system would have impaired his performance of complex tasks such as driving and his professional duties.
1.17	The Board refers to … Principle 1,1, 1.2, 8.1, 9.1 and 9.2(g) of the Code of Conduct.
Mr Graham’s conduct was inconsistent with the principles identified at paragraph 1.17 above. 

Failure to manage health

2	From on or about 30 May 2019 to on or about 5 June 2020, Mr Graham engaged in:
(a)	professional misconduct within the meaning of paragraphs (a) and/or (b) and/or (c) of the definition of professional misconduct in s 5 of the National Law; and/or
(b)	unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law; and/or
(c)	unsatisfactory professional performance within the meaning of the definition of unsatisfactory professional performance in s 5 of the National Law,
in that he failed to manage his health.

Particulars
The particulars include, but are not limited to:
2.1	The Board refers to and repeats paragraphs 1.1 to 1.15.
2.2	From on or about 30 May 2019 to on or about 5 June 2020, Mr Graham failed to manage his health.
2.3	The Board refers to … Principles 1.1, 1.2, 8.1, 9.1 and 9.2(g) of the Code of Conduct.
2.4	Mr Graham’s conduct was inconsistent with the principles identified at paragraph 2.3 above.
Principles concerning the proper approach to an Agreed Statement
25	The principles concerning the proper approach for a disciplinary tribunal to take to an Agreed Statement of the kind submitted in this case have been discussed in numerous decisions of courts and tribunals.  
26	The authorities recognise that ultimately it is for the Tribunal to be satisfied that the findings are appropriate. No agreement between a regulator and the practitioner can supplant that duty. Nevertheless, any agreement between the parties is a highly relevant matter: Medical Board of Australia v McGrath [2014] VCAT 641 at [19]- [21]. See also, in particular, the decision of the High Court of Australia in Commonwealth of Australia v Director, Fair Work Building Inspectorate [2015] HCA 46.
27	VCAT has observed that it is important to take the parties’ agreement into account in forming its own view on relevant matters, ‘particularly … when it is clear from the face of the agreement that it does not represent an arbitrary outcome, but reflects a carefully and extensively negotiated outcome that has proper regard to all relevant facts and circumstances’: Medical Board of Australia v Fox [2016] 408 at [6]. 
28	We observe that, beyond whatever negotiations the parties may have had, they participated in a compulsory conference in August 2023 that was conducted by a presidential member of the Tribunal.  
Findings of fact
29	The Board carries the burden of proof.  The standard of proof is the usual civil standard: on the balance of probabilities.  In the context of disciplinary proceedings where serious misconduct is alleged, the Court of Appeal has observed that the well-known principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 ‘reflect common sense notions of probability with respect to human conduct and it is entirely proper for [VCAT] to take them into account’: see Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322 at [26].  In Karakatsanis & Anor v Racing Victoria Limited [2013] VSCA 305 the Court referred to Briginshaw before stating that it was entirely proper for VCAT to require that it be ‘comfortably satisfied’ of the facts in issue: at [37].  See also Medical Board of Australia v Alkazali [2017] VCAT 39 at [33]-[36].
30	On the basis of the evidence contained in the Tribunal Book and supplementary materials that we have referred to, and Mr Graham’s admissions, reflected in the Agreed Statement and confirmed in his affidavit and oral evidence, we are comfortably satisfied that he engaged in the conduct alleged in the Amended Notice of Allegations.
31	We announced our findings at the hearing.  
Characterisation of conduct 
32	The parties jointly invited VCAT to make the following findings.  First, that on 5 June 2020 Mr Graham engaged in professional misconduct within the meaning of paragraphs (a) and (c) of the definition of ‘professional misconduct’ under section 5 of the National Law, in that he practised the profession of paramedicine while he would have been affected by methamphetamine such that his ability to perform complex tasks would have been impaired, and with the presence of methamphetamine, cannabis, amphetamine, codeine and delta-9-TCH-COOH in his system.  Secondly, that from 30 May 2019, or from about that day, until 5 June 2020, Mr Graham engaged in professional misconduct within the meaning of paragraphs (a) and (c) of the definition of ‘professional misconduct’, in that he failed to manage his health.   We have noted among other things that a particular of the first allegation is that Mr Graham admitted to withholding information at the time of testing when confronted with the drug tests.
33	Before continuing, focussing on methamphetamine, we note that in Osteopathy Board of Australia v Canagasabai [2024] VCAT 358 (Canagasabai) VCAT referred to the Australian Medical Association’s statement that it is a very harmful drug that is not ‘recreational’ or ‘soft’ and that ‘mental health problems … can occur from first usage’.  The possession of methamphetamine is prohibited in all Australian States and Territories and is against Commonwealth Law.
34	Section 5 of the National Law contains these definitions - 
professional misconduct, of a registered health practitioner, includes—
(a)	unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)	more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)	conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers …  
35	The Code referred to in the Amended Notice of Allegations (the Code) is evidence of what constitutes appropriate professional conduct or practice for the profession of paramedicine: see section 41 of the National Law.
36	At the material times, the Code included these requirements for paramedics:
•	Paramedics must always act in accordance with the law.  
•	Paramedics have a duty to make the care of patients or clients their first concern and to practise safely and effectively. 
•	Paramedics must be ethical and trustworthy.  Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion.  
•	In professional life, paramedics must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct.  
•	It is important for paramedics to maintain health and wellbeing. This includes seeking an appropriate work-life balance. 
•	If a paramedic knows or suspects that they have a health condition or impairment that could adversely affect judgement, performance or the health of patients or clients, they should not rely on self-assessment of the risk posed to patients or clients; they should consult a doctor or other practitioner as appropriate about whether, and in what ways they may need to modify practice and following the treating practitioner’s advice; and they should be aware of their responsibility under the National Law to notify the Boards in relation to certain impairments.
37	On the basis of the findings of fact we have made and having regard in particular to the relevant parts of the Code, we conclude that Mr Graham engaged in professional misconduct within the meaning of paragraphs (a) and (c) of the definition of ‘professional misconduct’ as the Board has alleged in the first and second allegations.  Mr Graham’s conduct was serious.  It was connected to his practice as a paramedic.  It exposed patients, colleagues and the public to risk of serious harm.  We consider that Mr Graham’s conduct was unprofessional conduct that was substantially below the standard reasonably expected of a registered paramedic of an equivalent level of training or experience.  The conduct was professional misconduct within the meaning of paragraphs (a) of the definition.  We further consider that Mr Graham’s conduct was inconsistent with him being a fit and proper person to hold registration in the profession of paramedicine, so that it was professional misconduct within the meaning of paragraph (c).   
Determinations
38	The Board submits - and Mr Graham agrees - that we should reprimand him and impose conditions on his registration.  It emerged during Mr Jellis’ submissions that, in addition, the Board had contemplated seeking cancellation of Mr Graham’s registration but was mindful of his rehabilitation, insight and remorse.  Instead, the Board submits that we should suspend Mr Graham’s registration for the period of 12 months.  On the other hand, Mr Graham submits that in the circumstances we discuss below, including that his registration has been suspended since June 2020, we should not suspend his registration now.
39	For the reasons that follow, we have concluded that we should reprimand Mr Graham; impose conditions on his registration; and suspend his registration for the period of 12 months from the date of our order.  The conditions, which we discuss below, are to operate from the end of the suspension, with a review period of 12 months.  
Principles regarding determinations 
40	In relation to the general principles regarding determinations Mr Jellis cited Medical Board of Australia v Zhao [2021] VCAT 1053 where VCAT said:   
The two primary objectives to the imposition of sanctions, consequent upon a finding of misconduct by the Tribunal, are to protect the public and to maintain the professional standards of the profession in the eyes of the public … These objectives in turn encompass:
(a) 	protection against further misconduct by the practitioner, by regulating their performance (specific deterrence). 
(b) 	facilitating rehabilitation of the practitioner; 
(c) 	preventing persons who are unfit to practise from practising as medical practitioners;
(d) 	general deterrence of other practitioners from similar conduct; 
(e) 	maintaining proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession; and
(f) 	maintaining public confidence in the profession, including an appropriate acknowledgment and condemnation of misconduct.
41	Mr Jellis and Ms McKay cited Medical Board of Australia v Griffiths [2017] VCAT 822 where VCAT set out the principles in this way:   
42.	The purpose of determinations is protective not punitive. The objective is primarily the protection of the public and the maintenance of professional standards in the eyes of the public. 
43.	With that protective focus in mind, the Tribunal considers a range of factors including:
•	the nature and seriousness of the conduct;
•	whether the practitioner pleaded guilty or other evidence of contrition or remorse;
•	whether there is a need for specific deterrence (deterring the particular practitioner from further inappropriate conduct) or general deterrence (deterring other practitioners from engaging in similar conduct);
•	whether there have been other disciplinary findings before or since the conduct in question;
•	evidence of character;
•	evidence of rehabilitation;
•	any delay from the time the investigation started to the end of the Tribunal hearing;
•	other mitigating factors such as medical or psychological evidence, family or other personal circumstances.
44.	Some of the above factors will overlap. Specific deterrence, for example, requires consideration of the likelihood of the practitioner re-offending, whether because of:
•	a lack of insight into what occurred;
•	a lack of remorse about what occurred;
•	a history of offending conduct as opposed to a one-off explicable departure from otherwise high standards of conduct; or
•	other matters indicating either that a particular sanction is required to deter the practitioner from re-offending or, conversely, that rehabilitation has taken place …
46.	General deterrence requires consideration of whether there is a need to signal to other members of the profession that adverse consequences will follow such conduct, and thereby deter them from the same conduct, in the interests of maintaining professional standards and public confidence in the profession. 
Applying the principles in the present case 
42	We agree with Ms McKay’s submission to the effect that the two allegations are interconnected.  And there was no additional misconduct (such as giving false or misleading information to the regulator) as there was in some other cases cited to us where health practitioners used illicit substances.   As we have indicated, however, we regard Mr Graham’s conduct as very serious, for he exposed patients, colleagues and members of the public to grave risk of harm.  Mr Graham’s use of illicit substances was detected on one day in 2020 but, for however precisely long his conduct went on before that day, he used those substances over a considerable period of time, and in substantial quantities, which increased the risk of serious harm to other persons.     
43	Importantly, while Mr Graham was not frank at the time he was required to undergo drug testing at work, since then he has demonstrated contrition and remorse.  He has cooperated with the regulator and made comprehensive admissions.  He has expressed his insight and remorse.  We have mentioned some examples of that.  We now mention that in the part of his affidavit we have referred to, where Mr Graham acknowledged that an illicit substance remained in his system when he attended work on 5 June 2020, he went on to say that he acknowledged that having any unprescribed drug in his system when attending for work as a paramedic, regardless of when the drug was consumed, is unacceptable.  He concluded by saying that he genuinely regretted his substance use and the events of 5 June 2020 (which he said had been a wake-up call for him).  He acknowledged that his actions had put colleagues, patients and the public at risk, and could damage the reputation and standing of the profession of paramedicine in the community.  
44	We will discuss specific and general deterrence, and the effect of the passage of time since the Board’s investigation commenced, when considering suspension of Mr Graham’s registration.
45	There are no other disciplinary findings to take into account.
46	There is general evidence regarding Mr Graham’s good character that we have referred to.
47	There is extensive evidence concerning Mr Graham’s rehabilitation.  That includes his direct evidence, the evidence of drug testing especially since mid-2022, Dr Crowley’s reports, and reports by Mr Graham’s GP and psychologist.  Not straight away, but reasonably soon after he was drug tested at work, Mr Graham ceased using illicit substances.  In 2023 Dr Crowley confirmed that he no longer suffered the severe substance use disorders that were diagnosed in 2020.  Mr Graham has voluntarily undergone regular drug testing over recent years to demonstrate that he has continued to abstain.   
Reprimand
48	We reprimand Mr Graham. 
49	We note that Ms McKay cited Nursing and Midwifery Board v Pang [2018] VCAT 1221.  In that case VCAT said:
It is well understood that a reprimand is not a trivial determination. For a professional person it has the potential for serious adverse implications.  It tells the public, patients and other practitioners that the standards expected of a practitioner have not been met and that the practitioner has been censured.
50	 The public relevantly includes employers and prospective employers.  
Conditions 
51	The parties jointly propose that conditions be imposed on Mr Graham’s registration.  
52	The proposed conditions, which we agree should be imposed from the date on which the suspension that we order comes to an end, are set out as an attachment to these reasons for decision.  In particular, the conditions provide that Mr Graham undertake random urine drug screening and that he continue treatment with a psychologist.
53	To the extent that specific deterrence is required, the conditions serve the interests of specific deterrence.  The conditions also serve the interests of protecting the public.  
54	The review period is 12 months.  
Suspension
55	Whereas the Board seeks an order suspending Mr Graham’s registration for 12 months, Mr Graham argues that there should be no suspension now for the reason, especially, that he has already been suspended for four years.  
56	Broadly speaking, the parties agree that suspension by way of immediate action has a different purpose to suspension ordered in a disciplinary proceeding.  They also agree that while the National Law does not expressly provide for a responsible tribunal to ‘backdate’ a suspension or give a practitioner ‘credit’ for time out of practice, a tribunal will have regard to all the relevant circumstances, which include time out of practice.      
57	We note at this point that the Board commenced its investigation in mid-2020 and made the referral to VCAT in September 2022.  
58	Significantly, Mr Graham made admissions at an early stage and he has since demonstrated his abstinence from illicit substances.   
59	Mr Jellis submitted in effect that we should bear in mind that it was not until August 2023 that, according to Dr Crowley, Mr Graham would have been fit to return to work as a paramedic and that it would not be appropriate to treat Mr Graham’s case in the same way we might have done if he had been fit at the time he was suspended and at all times since then.     
60	Responding to that submission, Ms McKay drew special attention to the results of the drug tests that Mr Graham has had since June 2022.  Ms McKay noted that as at the date of his affidavit, in March 2024, Mr Graham had had 87 tests over the period of 21 months, with a negative result each time.  (There have been further negative results since then).  Ms McKay submitted in effect that we could be confident that that Mr Graham would have been fit to return to work as a paramedic in March 2023 (when these tests were conducted most regularly) even if that was not formally confirmed until Dr Crowley did so in August 2023.  
61	Citing Medical Board of Australia and Pharmacy Board of Australia v Lee [2019] VCAT 311 and Nursing and Midwifery Board of Australia v Anni [2024] VCAT 214, Ms McKay submitted that whether a responsible tribunal imposes a ‘further’ period of suspension turns on whether it is satisfied that the period already out of practice is itself sufficient for the protection of the public – that is, whether the practitioner is still unfit to practise or whether there remains a need to maintain the standards of the relevant profession.  We agree that these considerations - among other relevant considerations – are important.  
62	We mention now that there are recency of practice issues for Mr Graham.  In his affidavit and oral evidence, Mr Graham detailed the inquiries he has made about enrolling in a suitable eight-week university course, which he understands he would be eligible to undertake in order to return to practice.  It is not clear, however, whether he would be able to enrol this year or in the first half of 2025.  As Mr Jellis noted, the impact of a 12-month suspension would be less for Mr Graham than it would be for another person who had their ‘work bag packed’.   
63	As Mr Jellis put it, our task is not a matter of ‘precise science’.  Our task involves having proper regard to all the relevant considerations.  
64	We have had regard to the fact that, whether one views August 2023 as the relevant time, or whether one could reasonably say that the time was likely to have been earlier in 2023 - in March or thereabouts - Mr Graham became medically fit to return to practice 10 months or more ago.  At the time his registration was suspended and for a substantial period after that he was not fit to practise.  We take that into account in deciding whether there should be a suspension now and, if so, what is the appropriate period of suspension.
65	We have concluded that we should suspend Mr Graham’s registration and that the period of 12 months is appropriate.  
66	We accept Mr Jellis’ submission to the effect that a substantial period of suspension is necessary in order to serve the interests of general deterrence and to maintain public confidence in the profession of paramedicine.  We accept the submission that the seriousness of Mr Graham’s conduct and the corresponding need for specific and general deterrence are illustrated by the following matters.  As a health practitioner, Mr Graham ought to have known the risks to others of his drug taking as well as how to access treatment or help.  He put other people at risk, including patients, road users and his work colleagues.  He falsely denied the true extent of his drug use at the time workplace drug tests were administered.  Mr Graham’s conduct did not cease until it was detected.  The quantity of drugs detected in Mr Graham’s system in June 2020 was significant.  Even after his drug use was detected, Mr Graham evidently continued to use cannabis for a period of time (in 2020).  Mr Graham’s drug use was not isolated but involved numerous substances consumed over many years.  
67	In our view, specific deterrence is important but general deterrence is a more important consideration.  Concerning general deterrence, Mr Jellis cited Medical Board of Australia v KFM [2021] VCAT 1479 at [78].  
68	Adapting what VCAT said in KFM, we say in the present case that there is a critical need for general deterrence.  By our determinations, we intend to signal to the paramedicine profession that serious adverse consequences will follow conduct of the kind that Mr Graham engaged in.  It was conduct that put at risk not only patients but also members of the public and Mr Graham’s professional colleagues.  By our determinations we seek to deter others from the same conduct, in the interests of maintaining professional standards and public confidence in the profession. But we also seek to encourage other practitioners of paramedicine to do what the Code exhorts them to do if they know or suspect that they have a health condition or impairment that could adversely affect their judgement or performance or a patient’s health. They should not rely on any assessment they might make themselves of the risk they pose to patients and other persons.  They should obtain professional help and advice.  
69	We add that in another case that Mr Jellis cited - Pharmacy Board of Australia v VGV [2022] VCAT 1323 - VCAT observed that health professionals have better access than many people to supports and treatment options and have a particular responsibility to ensure they do not practise when their capacity to meet their professional duties is impaired. 
70	Arguing against suspension, Ms McKay drew to our attention decisions by VCAT in other cases that we discuss now.  
Comparable cases 
71	Ms McKay cited Nursing and Midwifery Board of Australia v INZ [2018] VCAT 99 (INZ); Nursing and Midwifery Board of Australia v Stokes [2021] VCAT 1319 (Stokes); and Canagasabai, cited earlier.  Similar to the present case, INZ, Stokes and Canagasabai concerned health practitioners who had substance abuse problems.  The professions concerned were nursing and osteopathy.  The conduct consisted of, or mainly involved, non-compliance with drug screening conditions that had been imposed on the practitioners’ registration.  Each case had unique personal and medical circumstances.  Ms McKay drew our attention to those circumstances and to the way that VCAT took them into consideration.        
72	In INZ, by the time of VCAT’s decision the nurse had been suspended for two years.  The Nursing and Midwifery Board’s position was that a 12-month suspension was warranted, but it did not seek a further suspension.  VCAT considered that specific and general deterrence had already been achieved and reprimanded the nurse but did not order a further suspension.  
73	In Stokes, the same Board accepted that an 18-month suspension imposed by way of immediate action should be taken into account when VCAT determined the period of suspension to be imposed by way of disciplinary action but submitted that the number and seriousness of the breaches meant than an overall suspension for two years was appropriate.  VCAT accepted the nurse’s submission that the suspension already served would be sufficient (for relevant purposes including deterrence).  VCAT reprimanded the nurse and imposed conditions on her registration but did not order a further suspension.  
74	In Canagasabai, by the time of VCAT’s decision the osteopath had served a 20-month suspension.  Further, approximately two years had passed since he surrendered his registration.  The Board sought an order disqualifying the osteopath from applying for registration for the period of 12 months.  VCAT considered that the need for specific deterrence was low.  In relation to general deterrence and the protection of the public, VCAT considered that any practitioner viewing the osteopath’s ‘trajectory’ over the preceding five years who was thinking about engaging in similar conduct, would be ‘appropriately deterred’, and noted that the public was protected by the surrender of registration.  VCAT did not see any utility in ordering a period of disqualification.  
75	Consistency with determinations made by other responsible tribunals is desirable, though we exercise caution in making comparisons.
76	Ms McKay emphasised the passage of time since June 2020 and Mr Graham’s demonstrated abstinence from illicit substances during the time his registration as a paramedic has been suspended.  These are important matters and we have taken them into account.  We still consider that suspension for 12 months is appropriate given especially the seriousness of Mr Graham’s conduct and the risks it posed to other persons.  We consider the need for general deterrence, the need to maintain proper ethical and professional standards, and the need to maintain public confidence in the profession of paramedicine to be particularly important.  
Summary and conclusion 
77	We agree with submissions made on behalf of the Board that the risk of practising a health profession while under the influence of illicit substances is manifest.  As Mr Jellis said, this is particularly the case for the profession of paramedicine, where practitioners may be called upon at short notice to attend acute and life-threatening presentations and respond in ways that may require great skill in speedy diagnosis, administration of life supporting treatment as well as skill in urgently travelling to and from acute events. A paramedic who works while under the influence of substances, or who fails to manage his or her health effectively in that regard, presents a significant risk to patients and others.  It is important to recall that these ‘others’ will not only be road users and general members of the public but also the paramedic’s professional colleagues.  A paramedic who is attending to a patient at a scene or in an ambulance relies on his or her partner to help ensure the practitioner’s safety and warn of any danger.   
78	Mr Graham is to be commended for everything that he has done towards his rehabilitation.  He has demonstrated insight and contrition and a determination to remain fit for a return to practise.  We have concluded that the 12-month suspension sought by the Board is necessary, without being punitive or disproportionate or such as to impact negatively on his rehabilitation.  The suspension is designed especially to serve the interest of general deterrence and to maintain proper professional standards and public confidence in the profession of paramedicine.  We do not accept the submission on behalf of Mr Graham to the effect that, especially given Mr Graham’s time out of practice, a reprimand and conditions would be sufficient for these purposes.   
79	For the reasons we have given, we have concluded that the appropriate determinations are that Mr Graham be reprimanded; that there be relevant conditions imposed on his registration, and that his registration be suspended for 12 months.    

J Billings 
Senior Member and Presiding Member  
	C Jones ASM
Health Practitioner Member	E Rankins 
Health Practitioner Member 	

Attachment – Conditions imposed on Michael Graham’s registration 

The following conditions are imposed on Michael Graham’s registration from the date that the suspension ordered by VCAT ends:

Undertake urine drug screening

1.	The Practitioner must only take substances prescribed, approved, or administered by a nominated treating practitioner(s) and such nominated treating practitioner(s) must not be a relative, friend, professional colleague or in a contractual or financial relationship with the Practitioner.

For the purposes of this condition ‘substance’ is defined as any illicit substance as well as any prescription only and any controlled drug medication as contained in Schedule 4 or 8 in the Standard for the Uniform Scheduling of Medications and Poisons (the SUSMP) as amended from time to time and as published at https://www.tga.gov.au/publication/poisons-standard-susmp

2.	Within 21 days of the notice of the imposition of these conditions, the Practitioner must commence random urine drug screening (UDS) in accordance with Ahpra’s protocol for UDS (the protocol) in force at the date these conditions are imposed and then as amended from time to time.

3.	The Practitioner must commence UDS at Group Three frequency or as otherwise advised by Ahpra and must continue to attend at this frequency until the Board approves otherwise.

4.	Within 21 days of the notice of the imposition of these conditions, the Practitioner must provide to Ahpra:

a.	Confirmation, on the approved form (HPF6), that they understand the requirements of the protocol as it pertains to urine screening and they are aware of Ahpra’s monitoring of this condition.

b.	The details, on the approved form (HPF6), of all current substances that have been prescribed or administered to or approved for them, along with the contact information of all prescribing practitioners who have, or are likely to, prescribe, approve or administer substances.

Attend treating practitioners

5.	The Practitioner must undertake treatment with a psychologist (the treating practitioner(s)) and attend at a frequency determined by the treating practitioner(s).

6.	Within 21 days of the notice of the imposition of these conditions, the Practitioner must provide the following to Ahpra:

a.	The contact details, on the approved form (HPF3), of all treating practitioners.

b.	Acknowledgement, on the approved form (HPF3), from the Practitioner that Ahpra may seek reports from the treating practitioner(s) on a quarterly basis or as needed.

c.	Confirmation, on the approved form (HPNA3), from the treating practitioner(s) that they have seen a copy of the conditions on the Practitioner’s registration and are aware Ahpra may contact them to seek reports.
General

7.	Within 21 days’ notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the Practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioner’s registration or confirm that the senior person has received a copy of the conditions from the Practitioner. The practitioner will be required to provide the same form:

a.	within seven days of the commencement of practice at each subsequent place of practice; and

b.	within seven days of each and every notice of any subsequent alteration of these conditions.

8.	All costs associated with compliance with the conditions on their registration are at the Practitioner’s own expense.

9.	The review period is 12 months.