Paramedicine Board of Australia v Graham [2024] VCAT 534 (06 June 2024) involved disciplinary action for a paramedic’s drug use and his failure to seek health care for his addiction before it was detected. Mr Graham had been a paramedic since 2005. He was registered in mid-209. It was alleged that:

… 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.

His registration was suspended by the Paramedicine Board, acting under s 156 ‘immediate action’ in 2020. The matter came before the Victorian Civil and Administrative Tribunal for final resolution on 22 May 2024.  Before VCAT Mr Graham admitted the allegations and agreed with the Board that he should be reprimanded and have conditions imposed on his registration. The Board sought a further period of suspension which Mr Graham opposed.

The history

Mr Graham’s drug use was detected during workplace drug testing on 5 June 2020. After the results of a urine test confirmed the presence of various illicit drugs he was referred to the Paramedicine Board on 12 June 2020.  His registration was suspended on 30 June 2020 ([10]).  His employment was terminated in September 2020 ([13]).

In December 2020 Mr Graham saw Dr Phillip Crowley, a specialist in addiction medicine.  Dr Crowley diagnosed ‘Severe Methamphetamine Use Disorder, and Severe Cannabis Use Disorder’ ([14]) and recommended that Mr Graham not practice as a paramedic until he could demonstrate ‘sustained remission’ and ‘evidence of relevant treatment by his psychologist or General Practitioner’ ([16)].

In 2023 Dr Crowley again assessed Mr Graham. In his report of August 2023 (at [17]):

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.

Mr Graham had acknowledged the risk he had caused to colleagues and patients. Had undertaken treatment and cooperated with the Board’s various processes ([19]). Mr Graham was supported with reports from his treating GP and psychologist, confirming that he had been attending treatment and returning negative drug test results ([20]-[21]).  He had been driving emergency vehicles with the CFA without incident. He provided references from supervisors from AV and the CFA who had been aware of his prior drug use ([22]-[23]).

The result at VCAT

Uncontroversially, VCAT was satisfied of the allegations and the use of illegal drugs, and the failure to manage his own health, represented professional misconduct.  The Tribunal said (at [37]-[38]):

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).  

The Board submits – and Mr Graham agrees – that we should reprimand him and impose conditions on his registration.  It emerged during Mr Jellis’ [counsel for the Board’s]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.

VCAT agreed with the Board and imposed a further 12 months suspension even though Mr Graham had not practised since June 2020 and done all that he could to, and has effectively dealt with, his addiction issues.

At [56] the Tribunal said:

… suspension by way of immediate action has a different purpose to suspension ordered in a disciplinary proceeding… 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.

Even so the Tribunal did impose a further 12 month suspension.  They said (at [66]-[68]):

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.

In our view, specific deterrence [ie a penalty to deter Mr Graham from further offending] is important but general deterrence [ie a penalty to communicate to others how serious this conduct is seen in order to deter others from similar conduct] is a more important consideration.

… 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.

Finally at [78] they said:

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.  

Discussion

Of course I am not in the position of the Tribunal members (J Billings, Senior Member; C Jones ASM, Member and E Rankins, Member) but I find it difficult to believe that the further 12 months suspension ‘is necessary, without being punitive or disproportionate or such as to impact negatively on his rehabilitation’.  Whilst the seriousness of his conduct cannot be doubted, the evidence of Mr Graham’s rehabilitation is to be commended and should be encouraged.  Given that he has already been out of the profession for 4 years it is hard to see what a further 12 months will achieve.

The only saving is that had they not imposed the suspension he would still not be able to practice as he now needs to deal with recency of practice. At [62] we’re told that:

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’.

The outcome is intended to, and should serve as a warning to other paramedics and health care professionals not to take drugs and if you find yourself relying on them, then to be alert to that and seek professional help.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.