VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z20/2021
	
CATCHWORDS	
Review and Regulation List - Health Practitioner Regulation National Law (Victoria) Act 2009 –                             – review of decision to take action to impose conditions on registration of medical practitioner – gastroenterologist who performs endoscopies - whether reasonable belief that he has or may have an impairment – alcohol use disorder - whether any and what action should be taken - decision of Board confirmed.   
Review and Regulation List - Health Practitioner Regulation National Law (Victoria) Act 2009 –                             – review of decision concerning practitioner said to have an impairment – alcohol use disorder – application for pseudonym order – whether power to make order under Open Courts Act 2013 or Victorian Civil and Administrative Tribunal Act 1998 – whether order necessary – order refused.  	

APPLICANT	Dr Edward Robert Eaves 	
RESPONDENT	Medical Board of Australia	
WHERE HELD	Melbourne  	
BEFORE	J Billings, Senior member
Dr P Molloy, Member
Dr A Reddy, Member	
HEARING TYPE	Hearing via video conference 	
DATE OF HEARING	11 May 2021 	
DATE OF ORDER	14 July 2021	
CITATION	Eaves v Medical Board of Australia (Review and Regulation) [2021] VCAT 772	

Order

Under section 202(1)(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 the Tribunal confirms the decision of the respondent to impose conditions on the applicant’s registration.    

J Billings
Senior Member	 Dr P Molloy   
 Member	 Dr A Reddy   
 Member	
APPEARANCES:		
For Applicant 	Mr P H Cadman of counsel.	
For Respondent	Mr J P Stoller of counsel. 

	

REASONS
Background
1	This case concerns action taken by the Medical Board of Australia (the Board) under section 178 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (the National Law) to impose conditions on the registration of the applicant health practitioner, Dr Edward Robert Eaves (known as Dr Robert Eaves).  
2	Dr Eaves has applied for a pseudonym order.  For reasons we provide towards the end of this decision record, we have declined to make the order.
3	The Board’s decision to impose conditions was made on 14 December 2020 and notified to Dr Eaves in early January 2021.  In the decision the Board stated that it had formed a reasonable belief that Dr Eaves has or may have an impairment (alcohol use disorder).  The Board imposed conditions that Dr Eaves undertake breath alcohol testing and that he attend treating practitioners (a GP, and a clinical psychologist or consultant psychiatrist).  
4	On 11 January 2021 Dr Eaves appealed to VCAT under section 199 of the National Law.  
5	Section 178 of the National Law (set out below) relevantly provides that a National Board may take action such as imposing conditions on registration if the Board reasonably believes that the practitioner has or may have an impairment, as that term is defined in the National Law.  
6	Dr Eaves is aged in his sixties.  He has practised medicine for over 40 years.  Specialising as a gastroenterologist, Dr Eaves performs endoscopies, including gastroscopy and colonoscopy.  For many years until 12 to 18 months ago Dr Eaves worked at a practice in Melbourne (the Melbourne Practice).  He continues to be a director of that practice.  More recently, Dr Eaves has worked as a locum at a regional centre where he has an association with a senior practitioner.  Before the time that the Board decided to impose conditions, Dr Eaves signed a locum contract with a Health Service in Queensland.  He attended the Health Service in early February 2021.  In circumstances we describe, Dr Eaves did not comply with the conditions at that time.     
7	On 11 July 2019 the Board received an anonymous notification.  The notification includes this note:
The caller wanted to raise concerns about the health of the practitioner. Caller advised that the practitioner has an alcohol and Valium addiction. He has previously come to work smelling of alcohol, however he has not been permitted to work on those occasions. The caller stated that the practitioner’s health is affecting his practice as he often comes to work in a bad state and then tells staff that he cannot do the work that day. Patients need to be constantly rescheduled or another practitioner has to fill in for him. He has also left patients who have been prepared for the procedure stating that he cannot do the work. His performance is placing added strain on the nursing staff and some [anaesthetists] have refused to work with him. It is unknown if the practitioner has directly harmed any patients but there is a belief that some patients have or will be taking him to court. The practitioner’s health issues flare up every three months or so. However, his health has been an ongoing concern for a number of years. The [practitioner] works in two places: [details omitted]. Staff at these clinics have been documenting incidents and would have a lot of information in support of the caller’s concerns. It is unknown whether the practitioner is currently seeking treatment for his health concerns. However, it is known that he has comes to the attention of AHPRA in the past. The [practitioner] works three days a week (Monday, Tuesday, and Thursday) and undertakes only two procedures: colonoscopies and gastroscopies. When he performs these procedures there are people in the room with him. The caller is concerned that if something is not done he could cause serious harm to patients.
8	The available evidence does not show that Dr Eaves has a Valium addiction; that there has been harm done to patients; or that patients have sued him.  Our decision addresses whether there is or may be impairment associated with alcohol use.
9	There have been previous notifications.  One notification in particular, made anonymously in 2017, alleged mainly that Dr Eaves had missed work because of alcohol abuse.  Dr Eaves underwent a health assessment as required by the Board.  The Board decided not to take any action: see further below.  There have not been any mandatory notifications.  
10	In August 2020 AHPRA, on behalf of the Board, wrote to Dr Eaves and informed him that it would investigate.  Investigators spoke to the Executive Director of Nursing (EDON) at the Melbourne Practice and one of the directors (the Director).   Those persons later provided written statements.  In September 2020 Dr Eaves’ solicitors wrote to AHPRA.  Among other things, they provided letters of support by registered nurses and anaesthetists who had worked with Dr Eaves.  
11	The medical and other expert evidence includes reports that were made following health assessments undertaken in 2017 and 2019.  There is also a recent report by Clinical Psychologist, Dr Kathyn Gilson, who has been treating Dr Eaves for over a year.  
12	The Tribunal Book includes the Board’s investigation materials; the expert reports; a notice of proposed action and Dr Eaves’ response; the letters of support for Dr Eaves; and the parties’ submissions to VCAT. 
13	There was no oral evidence given at the hearing on 11 May 2021.  Submissions were made in writing and orally.  
14	Dr Eaves has made statements to the effect that the notifications were made vexatiously or maliciously or that the allegations were nonsense.   Dr Eaves submits that there should be no action to impose conditions on his registration.  Through his counsel, he told us that he is a “social drinker”.  His position is that he does not have alcohol use disorder now and that he has not had that disorder in the past.  He said that the liver function test results in evidence are explained by a combination of factors, alcohol use being only one factor.  
Information provided by the EDON and the Director 
15	An APHPRA investigator spoke separately to the EDON and the Director in August 2019.  They provided information to the Board in writing the next month.  In August the EDON said there had been issues with Dr Eaves not coming to work; or coming to work but then not performing surgeries and cancelling appointments; or calling in the early hours of the morning, saying he was not coming to work.  (The situation of Dr Eaves not presenting for work had occurred two-three times in the preceding six months, she said).  Dr Eaves had said this was related to his mental health and that he was not “feeling up to it”.  The situation seemed to “flare up” when things were happening in Dr Eaves’ personal life.  No one had specifically told the EDON that they believed Dr Eaves was under the influence of alcohol or drugs, but that inference was drawn, especially in light of previous AHPRA investigations.  Staff considered Dr Eaves’ performance/professionalism was not to the standard expected.  (Nursing) staff had been instructed that if they did not believe Dr Eaves was fit to perform surgery at any time they should not continue.  There had been discussion with anaesthetists who would support the nursing staff in that event.  There had been no instances of the kind.  And there had been no complaints from patients, other than complaints about consultations being “a bit quick”. 
16	In August the Director provided substantially the same information, specifying that it had been on Mondays that Dr Eaves had not presented for work.  The Director told AHPRA that he had “no concrete evidence” that Dr Eaves had practised while intoxicated, though he said that Dr Eaves’ appearance on some days would indicate that he had consumed alcohol: he presented dishevelled.  The Director and a colleague had met with Dr Eaves on two-three occasions in the preceding few months in relation his cancelling surgery and not coming to work.  As a result, they had implemented a system under which if Dr Eaves had surgery scheduled on a Monday, someone would telephone him on Friday, Saturday and Sunday to make sure he would be attending.  So far, the arrangement had worked.  
17	In September 2019, in an email to AHPRA, the Director said that he had not ever seen Dr Eaves under the influence of alcohol or other substances, but he also said that nursing and reception staff had said that on some occasions when Dr Eaves had telephoned to make a late cancellation of a list he had “sounded a little strange”.  
The medical and psychological reports 
18	Dr Mathew Frei (addiction medicine specialist) and Dr Peter Smith (psychiatrist) have assessed Dr Eaves at the request of the Board.  Dr Frei made reports on 28 September 2017, 15 June 2020 and 22 February 2021.  Dr Smith made reports on 2 December 2019, 7 July 2020 and 22 February 2021.  We have considered those reports along with a report by the treating Clinical Psychologist, Dr Gilson, dated 1 April 2021; and a letter by consultant physician, Dr Michael O’Ryan, dated 11 March 2020.  
Dr Frei – addiction medicine specialist 
19	Dr Frei’s 2017 report was made after the Board received a notification in March that year.  Dr Frei concluded that on the evidence then available Dr Eaves did not have impairment that would restrict or limit his ability to provide care as a specialist gastroenterologist.  He did not consider that breath testing was indicated.  The report includes these key points:
•	Dr Eaves considered the notification to be vexatious
•	Dr Eaves had been admitted to a drug and alcohol hospital (in late 2016) in an “inebriated” state where he stayed for about 10 days
•	In May 2017 Dr Eaves had begun breath testing with a breathalyser he owned and had records showing negative results
•	Dr Eaves said he had been drinking since the age of about 20 years but drank less these days.  He drank about two-seven standard drinks on about three-four days per week.  He had substantial periods of abstinence.  He never drank during work hours; had never been affected by alcohol at work; and he often did not drink the night before a workday
•	Tests included liver function testing and the possibility that alcohol contributed to liver enzyme abnormalities was noted 
•	Dr Eaves (on the evidence then available) did not meet the criteria for current severe alcohol use disorder but the history was consistent with past alcohol use disorder that was currently in remission
•	Dr Eaves reportedly did not consider he had a drinking problem and pointed to his experience of being able to cease and limit his alcohol use.  
20	Dr Frei’s 2020 report was made after the 2019 notification.  By then Dr Eaves had seen Dr Smith.  (Notably, Dr Smith recorded in his December 2019 report that Dr Eaves had consumed two standard drinks on the day of the assessment).  Dr Smith’s report was available to Dr Frei.  Dr Frei noted Dr Eaves’ report that he was unwell when he saw Dr Smith.  He had a hand injury and was depressed and had increased his alcohol consumption due to boredom. 
21	Dr Frei noted the following matters.  Dr Eaves had evidently not worked while impaired, or behaved unprofessionally, or put patients at risk, and no procedures had been ceased because of concerns about Dr Eaves’ capacity.  Audits had shown that the quality of his work matched appropriate standards and benchmarks. 
22	Dr Frei said that Dr Eaves may be considered to have an alcohol use disorder of a relapsing and remitting nature.  The diagnosis was based on the history and biochemical findings.  While alcohol use may be a factor in Dr Eaves’ reliability and efficiency as a private practitioner (along with physical ailments and episodes of low mood) Dr Frei said this was not an alcohol related impairment that detrimentally affected Dr Eaves’ ability to practise his profession.  At this stage there were inadequate grounds, in Dr Frei’s view, to require formal workplace breath testing.  
23	Explaining what he meant by the capacity to practise the profession, Dr Frei said that capacity did not mean reliability (and, therefore, efficiency as a private practitioner) but rather meant capacity to perform procedural tasks as a gastroenterologist, such as endoscopies.  
24	The report includes these key points:
•	Dr Eaves described himself as an intermittent alcohol user
•	Updated tests including liver function testing showed markedly increased liver enzyme abnormality consistent with liver damage from alcohol
•	The biochemical tests suggested a higher alcohol intake than Dr Eaves reported.  That may be “due to deliberate or unintentional under reporting of alcohol use or may be a ‘false positive’ picture due to factors other than high levels of alcohol consumption causing such severe abnormalities in the tests performed”
•	The inconsistency just noted was of concern in light of other features that suggested some limitations of Dr Eaves’ insight into the severity of his drinking and issues with staff at his workplace  
•	It was not established from the reported history of erratic work attendance (that may be related to health problems, including psychological and physical sequelae of alcohol use) that the problems had resulted in harm to patients, or whether they would pose risk to patients in future
•	The “sophistication of the quality and governance structures” at the Melbourne Practice appeared to be adequate safeguards
•	In the circumstances, workplace breath testing would be the only test to provide any risk mitigation, but Dr Frei found it “difficult to recommend” on the available evidence, which did not include “substantiated evidence” that Dr Eaves had worked while acutely affected by alcohol 
•	The alcohol use disorder would benefit from treatment, but Dr Eaves was not willing to have treatment, so such treatment would not provide a benefit to him.  
25	Dr Frei’s 2021 report was a supplementary report made in response to questions by AHPRA.  
26	Dr Frei said it was difficult to exclude the possibility that Dr Eaves may attend work while alcohol affected.  His alcohol use disorder carried a risk of relapse.  Dr Frei went on to make this point: 
Alcohol typically impairs frontal lobe functioning, and therefore affects judgement and rational decision making. This may lead to impulsivity, loss of insight and poor decision making. Some individuals may, for example, injudiciously drive a motor vehicle, become unpredictable and aggressive or attend work while alcohol affected.
27	Dr Frei later expressed the opinion that if Dr Eaves presented to work while affected by alcohol, given the central nervous system effects of alcohol and the complexity of procedural gastroenterology and clinical work in general, it would detrimentally affect his capacity to practise.  
28	Further to the comment in his 2019 report about the sophistication of the quality and governance structures at the Melbourne Practice, Dr Frei observed that there had apparently been a “caring … and diligent” arrangement there – “a de facto system of informal but effective monitoring and oversight” which served as a “safety net”.  He noted Dr Eaves’ special position within the practice.  Dr Frei considered it unlikely that similar protective features would be present in other workplaces.  He said it was difficult to know if staff in other workplaces would be as attentive to - and as effective in monitoring – a potential risk in senior medical employees as the Melbourne Practice had been.      
29	Concerning the risk of relapse, Dr Frei noted that the risk of relapse is reduced when the person was engaged in a long term, high quality treatment program.  He also noted, though, that according to the history he had taken, Dr Eaves had not engaged in or planned to engage in long-term treatment.  
Dr Smith – psychiatrist 
30	In his 2019 report Dr Smith referred to diagnoses of mild depressive disorder and substance use (alcohol) disorder.  Dr Smith noted an apparent tendency on Dr Eaves’ part towards understating the importance and significance of the health concerns that resulted in the (2019) notification.  He said that Dr Eaves appeared to understate his reliance on alcohol, or otherwise to rationalise his drinking as normal.   
31	Dr Smith described the “prognostic outlook” in relation to the alcohol use disorder as uncertain.  He noted with concern that Dr Eaves’ acknowledgement of a problem was “most limited” and said that a major  unknown variable was whether and to what degree Dr Eaves was willing and able to participate in any rehabilitation and treatment program.  Dr Smith said that Dr Eaves’ insight and judgement appeared “poor in this regard”.  Dr Smith recommended referral to a clinical psychologist or consultant psychiatrist for evaluation and treatment.  Dr Smith made no recommendations about restrictions or conditions on Dr Eaves’ registration, but he recommended further assessment by an addiction medicine specialist. 
32	Dr Smith’s 2020 report was written in light of Dr Frei’s 2020 report.  In particular, Dr Smith said that Dr Eaves had a chronic condition that was characterised by remissions and relapses.  Dr Smith said that, on the evidence currently available, there remained nothing to suggest or indicate that Dr Eaves was impaired in relation to working as a gastroenterologist, or that he was likely to become impaired in the near future.  He said there was “no direct evidence” that Dr Eaves had an impairment with regard to undertaking procedural work with his patients, or that his clinical judgment and decision making was adversely affected.  Dr Smith nevertheless said that it was most advisable for Dr Eaves to establish a therapeutic relationship with a GP or mental health professional. 
33	In his 2021 report Dr Smith responded to two questions by AHPRA.  The first was whether, having regard to Dr Eaves’ alcohol use disorder and all other relevant factors, Dr Smith considered that there was a risk that Dr Eaves may – in the future – attend work while affected by alcohol.  Dr Smith said that on the evidence that was available to him at the time of writing his previous reports, and in the absence of further evidence, there was a risk that Dr Eaves may attend work while affected by alcohol in the future. He said that the nature of this risk “pertains to the necessity for sobriety in exercising appropriate duty of care”.  
34	The second question was whether, if Dr Eaves attended work while affected by alcohol, that might either detrimentally affect, or be likely to detrimentally affect, his capacity to practise as a gastroenterologist (including his capacity to perform surgery).  Dr Smith said (on the basis of the evidence available to him upon which his previous reports were made and opinions expressed) that the possibility existed that “Dr Eaves’ capacity to practise as a gastroenterologist might detrimentally affect or might be likely to detrimentally affect his capacities to work as a gastroenterologist including his capacity to perform surgery”.  
Dr Gilson
35	Dr Gilson’s report, made in April this year, was evidently a “treating practitioner report” addressed to a compliance officer at AHPRA.  Dr Gilson responded briefly to five questions.  In response to the first three questions, she said that Dr Eaves last attended for treatment on 31 March 2021; that he attended every three weeks; and that she recommended he attend every three weeks.  Next, regarding Dr Eaves’ current health status, in summary Dr Gilson said that Dr Eaves did not have any cognitive impairment or mental disorder.  In one sentence, without elaboration, she said that Dr Eaves did not meet the criteria for substance use disorder.  Finally, regarding Dr Eaves’ current fitness to practise, Dr Gilson said that there was no impairment in Dr Eaves’ behaviours, cognitive/thought capacity and mood.  He did not meet the criteria for any DSM-V diagnoses.  He had shown evidence of sound practice working in his field of practice.  Dr Gilson said that from a psychological perspective Dr Eaves had capacity to practice.      
36	We mention at this point that, through Mr Cadman, Dr Eaves told us that he believed he began seeing Dr Gilson two years ago.  However, after Mr Stoller drew our attention to indications in the material that when Dr Eaves saw Dr Smith in November 2019 he said in effect that he had not been seeing any mental health practitioner, Dr Eaves said it was possible that it was after November 2019 that he began seeing Dr Gilson.  He said that, at first, he saw Dr Gilson once every four weeks but more recently he had been seeing her once every three weeks.  
Dr O’Ryan
37	Dr O’Ryan wrote to a colleague in March 2020 after Dr Eaves was admitted to a private hospital near Melbourne in February-March that year for “alcohol rehabilitation”.  (Dr Eaves told the Board in September 2020 that he admitted himself because of the reports made by Dr Frei and Dr Smith, though he said he did not believe he really needed to).  Dr O’Ryan mentioned that Dr Eaves had undertaken rehabilitation at other hospitals, including one in Sydney in 2019.  He noted that Dr Eaves had been having “big problems” with alcohol in the past 12 months because he had had “more time on his hands”: he was drinking in binges that would last for five-seven days and then there would be a gap of several weeks when he would “probably” still have two or three drinks a day.  (Under the heading “social history” Dr O’Ryan recorded that Dr Eaves had two or three bottles of wine per day).     
38	Dr O’Ryan noted that Dr Eaves had cooperated very well with the program and was feeling positive about the future.  Dr Eaves had reported that there was no alcohol in the house now.  Among other things, the rehabilitation team strongly encouraged Dr Eaves to tell his close friends that he could never be a successful social drinker.  
The Queensland locum contract 
39	We have mentioned that Dr Eaves did not comply with the conditions imposed by the Board when he worked as a locum in Queensland.  
40	The Board decided to take action to impose the conditions on 14 December 2020.  The Board notified Dr Eaves of its decision in a letter that was meant to be dated 5 January 2021.  When Dr Eaves lodged his appeal to VCAT, on 11 January 2021, he requested a stay of the Board’s decision.  
41	On 22 January Dr Eaves’ solicitors wrote to the Board’s solicitors requesting that the Board indicate whether it consented to or opposed the stay.  On the same day the Board’s solicitors responded, confirming that the Board opposed the stay.  On 24 January Dr Eaves’ solicitors wrote to the Board’s solicitors to say in effect that Dr Eaves had given instructions for the stay application to proceed.  
42	VCAT scheduled the stay hearing for 9 February 2021. Dr Eaves withdrew his stay application a matter of days before that, on 5 February 2021.  
43	On the day Dr Eaves withdrew the stay application his solicitors informed the Board’s solicitors about the following matters.  Before the Board imposed the conditions, Dr Eaves signed a locum contract with the Health Service in Queensland. His appointment was due to commence on 1 February 2021.  On 1 February he undertook a course of induction and orientation at the Health Service before driving to a hospital and conducting a postoperative review of three patients.  He did not prescribe any medications.  According to the solicitors’ letter, Dr Eaves was under the mistaken belief that the decision to impose conditions had been stayed and that the hearing scheduled for 9 February was the hearing of his application for review.  In those circumstances, Dr Eaves had not complied with the breath testing requirements.  
The Law 
44	Section 178 of the National Law relevantly provides: 
178	National Board may take action
(1)	This section applies if—
(a)	a National Board reasonably believes, because of a notification or for any other reason -
… (ii)	a registered health practitioner … has or may have an impairment … 
and
(b)	the matter is not required to be referred to a responsible tribunal under section 193; and
(c)	the Board decides it is not necessary or appropriate to refer the matter to a panel.
(2)	The National Board may decide to take one or more of the following actions (relevant action) in relation to the registered health practitioner or student - 
(a)	caution the registered health practitioner or student;
(b)	accept an undertaking from the registered health practitioner or student;
(c)	impose conditions on the practitioner’s or student’s registration, including, for example, in relation to a practitioner - 
(i)	a condition requiring the practitioner to complete specified further education or training within a specified period; or
(ii)	a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii)	a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; or
(iv)	a condition requiring the practitioner to manage the practitioner’s practice in a specified way; or
(v)	a condition requiring the practitioner to report to a specified person at specified times about the practitioner’s practice; or
(vi)	a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(d)	refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
(3)	If the National Board decides to impose a condition on the registered health practitioner’s or student’s registration, the Board must also decide a review period for the condition.
45	“Impairment” is relevantly defined in section 5 as follows: 
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 -
(a)	for a registered health practitioner …, the person’s capacity to practise the profession …
46	Section 3 of the National Law is headed “Relevant objectives and guiding principles”.  Section 3(2)(a) provides that an objective of the national registration and accreditation scheme is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.  Section 3(3)(c) provides that a guiding principle of the scheme is that restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
47	Relevant case law concerning the proper approach to section 178 is set out in Popovski v Dental Board of Australia [2018] VCAT 73.  Bearing in mind that Popovski concerned questions of conduct that is or may be unsatisfactory (under section 178(1)(a)(i)) rather than impairment (under section 178(1)(1)(a)(ii)), we quote from VCAT’s decision in that case, at [26]-[33].  
To establish a basis for action under s 178, the Board does not need to prove that the practitioner behaved in a way that constitutes unprofessional conduct or professional misconduct. Rather, the Tribunal must itself form a reasonable belief that the practitioner’s professional conduct is, or may be, unsatisfactory.
The concept of “reasonable belief” has been considered in the context of decisions under s 156 of the National Law. Certain principles have been identified which provide guidance to the Tribunal in taking any action under s 178(2):
(a) The reasonable belief is a jurisdictional fact; in other words, a precondition for the taking of any action; 
(b) Belief is the inclination of the mind towards assenting to, rather than rejecting, a proposition. The grounds which can reasonably induce that inclination of mind may, depending on the circumstances, leave something to conjecture; and
(c) In forming the reasonable belief, the facts about the practitioner which give rise to a concern about conduct do not have to be proven on the balance of probabilities but there must be proven objective circumstances sufficient to justify the belief. 
Accordingly, the Tribunal should proceed to:
(a) Identify the objective circumstances that indicate a basis for concern about the practitioner’s conduct; and
(b) Consider whether those objective circumstances are sufficient to support a belief that the practitioner’s practice is or may be unsatisfactory.
“Reasonable belief” is an objective test. Once the Board has established that there is sufficient relevant material to form the belief, the persuasive burden or onus then shifts to the Applicant to establish that there are in fact no or insufficient grounds for the belief. 
The term “is or may be” is also to be given its natural meaning; the Tribunal need not form a reasonable belief that the conduct is unsatisfactory but merely that it may be. 
If the Tribunal forms such a reasonable belief, it must then consider whether it is appropriate to take action under s 178(2), such as by placing conditions on the practitioner’s registration. Such restrictions may be placed on a practitioner’s registration if necessary to ensure that health services are provided safely and are of an appropriate quality, as contemplated by section 3(3)(c) of the National Law.
The Tribunal acknowledges that the imposition of conditions under s 178, which is all that is sought by the Board in this case, may only be imposed where a Board has decided not to take action to refer a practitioner to the Tribunal or to take other kinds of regulatory action. Accordingly, ss 178 and 179 permit the Board to take limited action, such as by issuing cautions, accepting undertakings or imposing conditions.
The questions for the Tribunal
48	The questions we must answer are whether we reasonably believe that, because of a notification or for any other reason, Dr Eaves has or may have an impairment – that is, a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect his capacity to practise the profession.  The next question would be whether any and what action should be taken.  
Consideration 
49	In summary, Mr Cadman made these submissions on Dr Eaves’ behalf.  
•	Dr Eaves is a very experienced practitioner who has no history of misconduct or disciplinary proceedings
•	The evidence (before Dr Gilson made her report) indicated only that Dr Eaves “has at times met the definition of having an alcohol use disorder with infrequent periods of harmful alcohol use”, and that he has on occasion re-scheduled patients or obtained a locum to replace him for personal reasons.  Now, on the basis of Dr Gilson’s report, Dr Eaves does not meet the criteria for alcohol use disorder.  While Dr Frei expressed the view that that Dr Eaves may be considered to have an alcohol use disorder of a relapsing and remitting nature, the best evidence now is Dr Gilson’s evidence to the effect that Dr Eaves does not currently have a disorder
•	Despite what is alleged in the notifications, there is no evidence that Dr Eaves has ever presented at work intoxicated or affected by any substance
•	There is insufficient basis in the reports by Dr Frei and Dr Smith to say it is necessary to impose conditions, consistently with the guiding principle in section 3(3)(c) of the National Law (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).  In particular, this is because there is no evidence that Dr Eaves has ever provided health services in a manner that was not safe or that was not of an appropriate quality 
•	It is consistent with all of the evidence that, whether his late cancellations or non-attendances were caused by issues related to mood and general well-being or alcohol use, or some combination, Dr Eaves has behaved appropriately, professionally and with due regard to patient safety and service by not undertaking medical practice work when he felt unable to do so
•	Neither Dr Frei nor Dr Smith expressed the view that Dr Eaves has posed a risk to patients, and neither of them recommended that conditions be imposed on Dr Eaves’ registration.  Dr Smith referred the latter question to Dr Frei.  Dr Frei expressed the view that Dr Eaves’ alcohol use “…may be a factor, along with his physical ailments and low mood, in his reliability and therefore his efficiency as a private practitioner[. T]his is not by my definition an alcohol related impairment that detrimentally affects his ability to practise his profession (which I interpret as his ability to perform procedural tasks as a gastroenterologist, such as endoscopies)”.  To the extent that Dr Frei and Dr Smith have identified any future risk, that is fundamentally expressed as an inability to exclude the possibility that Dr Eaves may attend work affected by alcohol, such that the risk cannot be eliminated
•	To impose conditions on the basis of matters affecting reliability and efficiency does not meet the test in section 3(3)(c) and therefore is not justified under the National Law.  The matters of reliability and efficiency are not significant or at the high end of the spectrum.  While non-attendances and cancellations may be lower than the standard that is ideal for a specialised practice of high repute, they are a reality of routine medical practice and not matters that justify intrusion by authorities under the National Law
•	In going further than the recommendations made by Dr Frei and Dr Smith, the Board placed emphasis on the organisational risk controls in place at the Melbourne Practice, and the possibility that they would not be in place in other locations. Dr Eaves’ experience of working in locum positions indicates that Directors of Nursing and Charge Nurses, as well as attending anaesthetists and other practitioners, in locations that are unfamiliar to Dr Eaves are extremely careful with clinical standards and behaviour, particularly with practitioners with whom they are unfamiliar. This is in line with observations that Dr Frei made in his most recent report.  (Dr Frei remarked in that report that, among other things, there would “presumably be many similarities in workplaces in the Australian private specialist sector, given the requirement that many of the safeguards inherent in quality and risk management are standardized and expected in clinical settings”.  But he went on to say that “it is difficult to know if these structures and staff would be as attentive to, and as effective at monitoring, potential risk in their senior medical employees’ as appeared to have been the case at the Melbourne practice)

•	Specifically in relation to conditions that Dr Eaves attend treating practitioners, such conditions are unnecessary because Dr Eaves was already attending a GP (not his GP at the time Dr Frei recommended he see a new GP) and a clinical psychologist before the Board imposed conditions.    

50	We accept Mr Cadman’s submission that Dr Eaves is a very experienced practitioner who has no relevant disciplinary history.  Further, whether or not Dr Eaves has ever presented at work after having recently consumed alcohol, it does not appear from the evidence that he has ever attempted to perform surgeries while affected by alcohol.  On the contrary, there is evidence that he has put patient safety first, as Mr Cadman submitted.  However, for reasons to be given, notwithstanding Dr Gilson’s report, we reasonably believe that Dr Eaves has or may have an impairment, such that there is discretion under section 178 of the National Law to take relevant action.  We consider that conditions should be imposed on Dr Eaves’ registration in the form attached to this decision record.  
Whether reasonable belief that Dr Eaves has or may have an impairment 
51	We do not accept the submission that Dr Eaves has at times met the definition of having an alcohol use disorder.  We reasonably believe that Dr Eaves now has or may have an impairment - alcohol use disorder.  We note Dr Frei’s view that the disorder is of a relapsing and remitting nature.  In our view there are “proven objective circumstances” sufficient to justify our reasonable belief.   
52	We consider that the assessment of Dr Frei, an addiction medicine specialist, which was supported by Dr Smith, has greater weight than the opinion given by Dr Gilson.  The earlier reports of Dr Frei and Dr Smith were considerably more detailed than Dr Gilson’s report.  It is significant that Dr Frei, in particular, relied not merely on the history given by Dr Eaves but also on biochemical findings.    
53	In submissions on behalf of the Board, Mr Stoller referred to Dr Frei’s conclusion that there was not any “substantiated evidence” that Dr Eaves has worked while affected by alcohol, and Dr Smith’s conclusions that there was no “unequivocal evidence” that Dr Eaves is incapable of working in a safe, competent and reliable manner, and that “there was no unequivocal evidence of professional misconduct, incompetence or manifest negligence”.  The Board accepts – rightly in our view – what Dr Frei and Dr Smith had to say but also points out - correctly, in our view – that the statutory test we have to apply does not require substantiated evidence or unequivocal evidence.  
54	We make clear that notwithstanding the lack of substantiated or unequivocal evidence about some specific matters that Dr Frei and Dr Smith referred to, we reasonably believe that Dr Eaves has or may have a disorder (alcohol use disorder) that detrimentally affects or is likely to detrimentally affect his capacity to practise the profession.  
55	Concerning the expression “capacity to practise the profession”, Dr Frei essentially interpreted this to mean the capacity to perform procedures.  This may be an unduly restrictive interpretation, for to practise medicine properly a medical practitioner needs to act reliably when it comes to presenting for surgery or other patient appointments.  On another view, while reliability and efficiency are important for the practice of medicine, those attributes may be said to be ancillary to the practice of medicine (in performing surgery, for instance).  Whatever the position about that, noting in particular that section 3(3)(c) of the National Law is expressly concerned with safety and quality, we focus on Dr Eaves’ capacity to perform endoscopies including gastroscopy and colonoscopy.  We reasonably believe that Dr Eaves has or may have a disorder (alcohol use disorder) that detrimentally affects or is likely to detrimentally affect his capacity to practise the profession – that is, to perform endoscopies.  In short, we reasonably believe that Dr Eaves has or may have an impairment for the purpose of section 178 of the National Law.  
56	We recognise that any decision-maker must be cautious where notifications are made anonymously and when the practitioner asserts that they are made maliciously.  We consider nevertheless that there are “proven objective circumstances” that are sufficient to justify our belief.   
57	Mr Stoller submitted in effect that the diagnosis of alcohol use disorder of a relapsing and remitting nature was a relevant objective circumstance.  Referring to the disorder, he highlighted Dr Frei’s remarks to the effect that alcohol typically impairs frontal lobe functioning and therefore affects judgement and rational decision-making which may lead to impulsivity, lack of insight and poor decision-making.  
58	Mr Stoller pointed to objective circumstances over and above the diagnosis.  We consider that, especially when considered together, these further objective circumstances are sufficient to justify our belief. 
•	Dr Eaves’ has a reported history of erratic work attendance that (as Dr Frei put it) may be related to health problems that include psychological and physical sequelae of alcohol use
•	Dr Eaves’ insight into his alcohol use is poor.  Mr Stoller referred to Dr Frei and Dr Smith’s observations about Dr Eaves’ insight.  We consider that Dr Eaves’ statements to us at the hearing – to the effect that he is a “social drinker” and that he has never had alcohol use disorder – demonstrate a concerning lack of insight
•	According to experts, the prognosis is uncertain
•	What was described as “the primary workplace” – that is, the Melbourne Practice - saw fit to institute the processes described earlier to ensure in particular that Dr Eaves was fit to practise when he attended work
•	Dr Eaves’ practice involves performing surgery (where the risks associated with impaired functioning are acute)
•	Dr Eaves’ consumed alcohol on the very day he was to see Dr Smith as required by the Board for the purpose of determining whether he had an impairment as a result of his alcohol use
•	While the Director (at the Melbourne Practice) informed the Board that there was “no concrete evidence” that Dr Eaves had practised while intoxicated, his appearance on some days would indicate that he had consumed alcohol: he presented dishevelled.  
59	Further to these matters, the Board invited us to consider that Dr Eaves had practised in breach of the conditions on his registration.  The submission concerned Dr Eaves’ brief time as a locum in Queensland.  The correspondence set out earlier indicates that Dr Eaves knew or ought to have known that the conditions were in operation at the time, because he gave instructions to his solicitors to pursue the stay application.  Despite that, he acted in breach of the conditions in that he practised without first undertaking breath alcohol testing.  There are circumstances in the case that weigh more heavily in our analysis, but we consider that Dr Eaves’ conduct may reflect impulsivity, lack of insight and poor decision-making.  
60	While there may not have been any episodes of impulsivity, lack of insight or poor decision-making that have led to Dr Eaves’ performing surgery while affected by alcohol in the past, especially when all the relevant circumstances are considered together, there is sufficient basis for the reasonable belief that we have formed.  
61	To express our conclusion another way, we have an inclination of the mind towards assenting to, rather than rejecting, the proposition that Dr Eaves has or may have a disorder that detrimentally affects or is likely to detrimentally affect his capacity to practise the profession of medicine.  
62	The protection of the public is the primary objective: see section 3(2)(a) of the National Law.  The risk is that, if he relapses, Dr Eaves may attend work affected by alcohol.  The risk to patients may be higher at a practice where he is not as well known to managers and colleagues as he was at the Melbourne Practice, and where he is not engaged with by managers and colleagues as effectively as it appears he was at the Melbourne Practice.  
63	We conclude that there is the necessary basis for relevant action to be taken under section 178(2).  
Whether any and what action should be taken 
64	We consider that the conditions that the Board imposed are necessary to ensure that the relevant health services are provided safely and are of an appropriate quality, as contemplated by section 3(3)(c) of the National Law.  We consider the conditions to be the minimum regulatory intervention that protects the public.
65	Breath tests were identified by Dr Frei to be the only test that would provide any risk mitigation.  Although Dr Frei did not recommend breath tests at the time that he was considering the matter, in our view they are necessary.  It is acknowledged that breath tests may be inconvenient, but they do not prevent Dr Eaves from practising.  They protect the public.
66	Regarding conditions that Dr Eaves attend treating practitioners, it may be that Dr Eaves has already been doing that for some time, and that he has cooperated in ways noted by Dr O’Ryan and Ms Gilson, but a condition on his registration that requires him to attend treating practitioners is designed to ensure that he continues to do so.  Further, it enables Board to monitor the treatment and be alerted to any relapse.  
67	In our view neither the breath test conditions nor the treatment conditions standing alone would be sufficient conditions.  They are complementary.  Both are necessary, in our view.  
68	Dr Eaves’ demonstrated lack of insight, and the fact that he did some work in Queensland in breach of his conditions indicates to us that there is a need for these conditions to be imposed.  
Application for a pseudonym order 
69	On 17 May 2021, Dr Eaves made an application for orders including an order under section 17 of the Open Courts Act 2013 (the OCA) to prohibit the publication of information that might enable him to be identified.  That was about one week after the hearing and about four months after Dr Eaves made his application to review the Board’s decision.  
70	Later in May the Board’s solicitors informed the Tribunal that the parties had resolved the matter on the basis that the Board consented to the Tribunal making a pseudonym order pursuant to section 80 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act).  
71	The Tribunal did consider making a pseudonym order but invited submissions as to the proper source of power and the justification for an order.
72	Mr Cadman submitted on behalf of Dr Eaves that the Tribunal has power under either section 80 of the VCAT Act or under the OCA, but that section 80 is the more appropriate source of power.  On the other hand, the Board now submits that a pseudonym order is a specific type of proceeding suppression order under section 17 of the OCA and that the OCA creates a code for the making of such orders by VCAT.  The Board now neither consents to nor opposes Dr Eaves’ application.  
73	Irrespective of the parties’ position, it is for the Tribunal to be satisfied that the order should be make.  For reasons that follow, we consider that the OCA is the more appropriate source of power.  We are not satisfied that a pseudonym order should be made, however, whether under the OCA or section 80 of the VCAT Act.    
74	Regarding the appropriate source of power, Mr Cadman referred to Secretary, Department of Justice and Regulation v Zhong (no. 2) [2017] VSCA 19.  In that case the Court of Appeal stated that there is a difference between a pseudonym order and a suppression order, and that OCA is not concerned with orders concealing identify: at [4].  The Court cited Hunter v Australian Football League [2015] VSC 112 at [4]-[6] and ABC-1 and ABC-2 v Ring and Ring [2014] VSC 5 at [6]-[16].  
75	There are observations to make about Zhong and the cases cited there.  Zhong concerned the power of the Court to make a pseudonym order for an appellant who had applied for the order at the commencement of the hearing.  The cases cited in Zhong concerned the power of the Court to make an order prior to the commencement of proceedings.  The Court was concerned with the exercise of its inherent jurisdiction (which jurisdiction is not affected by the OCA: section 5(1)).  In Hunter, for instance, Dixon J referred to the repeal of sections 18 and 19 of the Supreme Court Act 1986  (the SCA) at the time the OCA was enacted, with the result that the power to make the pseudonym order was left intact because the Court has inherent jurisdiction.  (Section 18 of the SCA had given the Court power (in circumstances set out in section 19) to make a “closed court” order or to make an order prohibiting publication of a report of the whole or any part of a proceeding or of any information derived from a proceeding).  In ABC-1 and ABC-2 Bell J observed that the provisions of the OCA suggested that it was not intended to apply to the situation in the case at hand.  His Honour noted section 7(d) which relevantly provides that the OCA does not limit or otherwise affect the making of an order that conceals the identity of a person “by restricting the way the person is referred to in open court” (emphasis added).
76	VCAT’s position is different.  In particular, VCAT has no inherent jurisdiction.  (VCAT has no relevant implied jurisdiction either: see OCA section 5(3)). 
77	VCAT’s position is different in another important way.  The OCA repealed VCAT Act section 101.  It is important to note what section 101 relevantly provided: 
101 Hearings to be public unless otherwise ordered 
(1) 	Unless another provision of this Act provides otherwise, all hearings of the Tribunal must be held in public.
(2) 	The Tribunal, on its own initiative or on the application of a party, may direct that a hearing or any part of it be held in private. 
(3) 	In the circumstances set out in subsection (4) the Tribunal may order— 
(a) 	that any evidence given before it;
(b) 	that the contents of any documents produced to it; 
(c) 	that any information that might enable a person who has appeared before it to be identified - 
must not be published except in the manner and to the persons (if any) specified by the Tribunal … (emphasis added) 
78	The OCA did more than repeal section 101.  The OCA inserted the following note to section 100 (which concerns the method of conducting hearings):
The Open Courts Act 2013 governs suppression orders and closed tribunal orders generally in relation to the Tribunal. 
79	We consider that Parliament’s intention is clear.  The power that VCAT formerly had under section 101 of the VCAT Act (to order that information that might enable a relevant person to be identified must not be published) is - following the enactment of the OCA and the repeal of section 101 - power that is given to VCAT by the OCA.  We agree with the Board’s submission that - for VCAT, we emphasise - a pseudonym order is a specific type of suppression order under section 17 of the OCA, being an order to prohibit or restrict the disclosure by publication or otherwise of a report of the whole or any part of a proceeding or any information derived from a proceeding.
80	Mr Cadman cited QDP v Victorian Institute of Teaching [2021] VCAT 13.  In that case VCAT revoked orders under the OCA and made a pseudonym order under section 80 of the VCAT Act.  Mr Cadman submitted that we too should make an order under VCAT Act section 80.  We do not need to consider whether VCAT section 80 may ever be invoked.  What we say is that, generally, the OCA is the appropriate source of power.    
81	The next question is whether we should make the order.  
82	Mr Cadman submitted on behalf of Dr Eaves that the proceeding fundamentally concerns “health information”, a recognised category of confidential information, and one of the most sensitive types of personal information.  He said that the Board does not publish on the public register conditions based on health assessments.  He contrasted that with the position for a practitioner in disciplinary proceedings.  He submitted that it would be appropriate not to identify a practitioner (especially) if the Board’s decision were set aside and conditions were removed.   
83	Mr Cadman further submitted that without the making of a pseudonym order in a case like the present one, there was a real risk that health practitioners would not exercise their right to apply for review.  
84	Mr Cadman invited us to draw “appropriate inferences” from the evidence, both as to the impact on Dr Eaves’ wellbeing if his sensitive health information entered the public domain in a way that identified him, and as to “the potential chilling effect” on review applications if pseudonym orders were not made.
85	The parties cited authorities dealing with the exercise of power at common law.  We are concerned with the OCA, but the cases provide helpful guidance.  In Zhong the Court of Appeal cited ABC v D1 & Ors; Ex Parte The Herald & Weekly Times Limited [2007] VSC 480.  In that case Forrest J stated in effect that the general rule is that there be no restriction on the publication of proceedings.  In some circumstances the administration of justice requires the general rule to be modified to ensure that that administration of justice is not frustrated.  The test is whether the order is necessary.  The Court is entitled to take into account the individual considerations affecting the person seeking the order and balance them against the principal rule of open justice in determining whether the administration of justice warrants the making of the order.  Relevant to these considerations is whether there is a real risk of the person suffering psychological harm as a result of publication of their name or the names of other parties.  Also relevant is the real risk of a party not proceeding in the event that they are identified.  Of the remaining principles, presently relevant is the principle that “usually the proofs must be cogent and will not be satisfied by mere believe on the part of a party that the order is necessary”.
86	We mention that the Board referred to the Charter of Human Rights and Responsibilities Act 2006 and the discussion in PQR v Sec, Department of Justice and Regulation (no.1) [2017] VSC 513 at [56] in making the submission that the “necessity requirement” in section 13 (which provides in particular that a suppression order does not apply to any more information than is necessary to achieve the purpose for which the order is made) must be strictly construed so as to achieve the open justice principles that underpin the OCA.    
87	In considering the exercise of power under the OCA, we note the following provisions in particular.  Section 4 provides that there is a presumption in favour of disclosure of information.  Section 14 relevantly provides that in making a suppression order VCAT must be satisfied on the basis of evidence, or sufficient credible information that is satisfactory to it, that the grounds for making the order are established.  Section 17 gives power to make an order on one of the grounds specified in section 18.  The potentially relevant grounds specified in section 18 are – 
•	The order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means
•	The order is necessary to protect the safety of any person
•	The order is necessary in the interests of justice
88	The word “necessary” appears each time.  As Hollingworth J noted in DPP (Cth) v Brady [2015] VSC 246, the word “necessary” imposes a high standard of satisfaction. Her Honour added that the onus is on the applicant for a suppression order to persuade the court that the order is necessary.  
89	The cases reveal the circumstances in which Courts have made pseudonym orders.  One of the cases cited by the Board was Hogan v Hinch [2011] HCA 4.  At [20]-[21] French CJ discussed various circumstances before saying that the categories are not closed, although they will not lightly be extended.  In Hunter, cited earlier, at [9] Dixon J noted that pseudonym orders are made commonly to protect the safety or health and personal integrity of litigants or witnesses.  His Honour further stated that a common instance is where the disclosure of a plaintiff’s identity might be sufficient to deter or deflect them from prosecuting their case.  (In the same case Dixon J remarked that he was unaware of a single insurance of a medical negligence case being conducted with the benefit of a pseudonym order, granted simply on the basis that the proceeding concerns the plaintiff’s health and medical records: at [13]).  
90	The Courts have noted that “mere embarrassment, distress or invasion of privacy is insufficient to warrant the making of a pseudonym order”. 
91	In Medical Board of Australia v FVE [2018] VCAT 1029 at [41] VCAT summarised the principles and noted that orders anonymising health practitioners and others subject to professional disciplinary proceedings (as the practitioner was in that case) are uncommon.  In that case, as in other cases noted in the decision, there was cogent evidence that the life or safety of the practitioner was at risk.  
92	The Board referred to further cases and circumstances in which the necessity for the order was established, including where a party would be reasonably deterred from taking action.
Consideration regarding the application for a pseudonym order 
93	Health information is of course generally sensitive personal information.
94	Whatever the regulator’s practice may be with regard to impairment cases and the public register, we are considering a different matter.  We are considering Dr Eaves’ circumstances and balancing them against the principal rule or presumption of open justice.  The Board does not consent to the order that Dr Eaves is seeking.  The Board does not oppose the order.  Whatever the Board’s attitude, we have to decide whether we should make the order.  
95	We do not draw the inferences we have been invited to draw.  
96	We must be satisfied on the basis of evidence, or sufficient credible information that is satisfactory to us, that the grounds for making the order are established.  
97	Dr Eaves has not been deterred from applying for review.  He did not seek the pseudonym order until months after he applied for review, and after the hearing had taken place.  
98	In any case where there are good grounds for making a pseudonym order – where, for instance, there is evidence, or sufficient credible information satisfactory to VCAT that the practitioner’s safety or life would be at risk -VCAT can make the order.  Therefore, we do not consider that if the order is refused the present case other practitioners would be reasonably deterred from applying for review.
99	There is a lack of evidence or sufficient credible information that Dr Eaves’ safety or life would be at risk without the order being made.  If Dr Eaves’ concern is really embarrassment, distress or invasion of privacy, that is insufficient to warrant the making of the order.
100	In summary, there is insufficient material before us to overcome the presumption in favour of the disclosure of information.  We are not persuaded that a pseudonym order is necessary.
101	There are countless published decisions by VCAT and responsible tribunals in other Australian jurisdictions where the health practitioner had or was said to have an impairment, and information about the impairment was published.  Whether or not a pseudonym order was sought, no pseudonym order was made in the majority of cases.  Many of the cases involved professional misconduct but not all did.  VCAT has made pseudonym orders in appropriate cases.    
Concluding remarks  
102	Dr Eaves is a very experienced medical practitioner.  He has no relevant disciplinary history.  There are allegations in the particular notification with which we are mainly concerned – the 2019 notification - that are not supported by the evidence.  Most importantly, there is no evidence that Dr Eaves has ever caused harm to patients by reason of being affected by alcohol.  Nevertheless, for the reasons we have given, we reasonably believe that Dr Eaves has or may have a disorder (alcohol use disorder) that detrimentally affects or is likely to detrimentally affect his capacity to practise the profession of medicine. That is, we reasonably believe that Dr Eaves has or may have an impairment.  There is discretion under section 178 of the National Law to take relevant action.  For the reasons we have given, we consider that conditions should be imposed on Dr Eaves’ registration in the form attached to this decision record.
103	We confirm the Board’s decision to impose conditions on Dr Eaves’ registration. 

J Billings
Senior Member	    Dr P Molloy   
    Member	Dr A Reddy  
Member	

ATTACHMENT – CONDITIONS 

Undertake breath alcohol testing

1. The Practitioner must undertake breath alcohol testing (breath testing) in accordance with Ahpra’s protocol for Drug and Alcohol Screening (the protocol) in force at the date these conditions are imposed and then as amended from time to time.  Breath testing is to occur as follows:

i. No more than 30 minutes prior to the commencement of each and every period of practice, and
ii. No more than 30 minutes after the completion of each and every period of practice, and
iii. At any time within the practice period as directed by the case officer or breath test supervisor.

For the purposes of this condition, ‘practice’ is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a medical practitioner in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a medical practitioner in a direct non-clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the profession.

For the purposes of this condition a ‘period of practice’ commences when the Practitioner begins to conduct any of the activities as defined in the meaning of practice and ceases with any break from carrying out these activities of 30 minutes or longer, regardless of whether the Practitioner is being remunerated for the break or not. There may be several practice periods within any working day.

2. Where the result of breath testing undertaken is greater than 0.01% blood alcohol concentration the Practitioner must:

i. not commence any practice and/or
ii. immediately cease practice and must not return to practice that day, and
iii. notify Ahpra immediately via email of such a result.

3. The Practitioner must, on the approved form (HPN5), nominate a person(s) to be approved to administer breath testing (the breath test supervisor). The Practitioner must ensure that the nomination is accompanied by written confirmation, on the approved form (HPNA5), from each nominated breath test supervisor.

4. Within 7 days of the notice of the imposition of these conditions, the Practitioner must provide to Ahpra:

i. Confirmation, on the approved form (HP5), that they understand the protocol and the monitoring requirements of breath alcohol analysis.
ii. Confirmation, on the approved form (HPS5), from the Director of Medical Services/ Senior Practice Manager/Senior Manager/Senior partner/proprietor/owner/other as appropriate (the senior person) at each place of practice that they are aware Ahpra may contact them for the purposes of monitoring the Practitioner’s compliance with this condition.

Attend treating practitioner(s)

5. The Practitioner must undertake treatment with:

i. a general practitioner; and
ii. either a clinical psychologist or consultant psychiatrist
(the treating practitioner(s)), for assistance with alcohol use, 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:

i. The contact details, on the approved form (HPF3), of all treating practitioners.
ii. Acknowledgement, on the approved form (HPF3), from the Practitioner that Ahpra may seek reports from the treating practitioner(s) on a two monthly basis or as otherwise required.
iii. 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.

7. Within 21 days of the 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:

i. within seven days of the commencement of practice at each subsequent place of practice, and
ii. 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 six months.