Appanna v Medical Board of Australia
[2021] VSC 679
•21 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 01470
| NALENDRA APPANNA | Applicant |
| v | |
| MEDICAL BOARD OF AUSTRALIA | Respondent |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 October 2021 |
DATE OF JUDGMENT: | 21 October 2021 |
CASE MAY BE CITED AS: | Appanna v Medical Board of Australia |
MEDIUM NEUTRAL CITATION: | [2021] VSC 679 |
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MEDICAL PRACTITIONERS – Medical Board of Australia – ‘Immediate action’ when Board reasonably believes that conduct of a registered health practitioner poses a serious risk to persons and action is necessary to protect public health and safety and/or action otherwise in the public interest – Victorian Civil and Administrative Tribunal – Application for leave to appeal on a question of law – Health Practitioner Regulation National Law (Victoria) Act 2009 s 156(1)(a) & (e) – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1) – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | BW Jellis | MinterEllison |
HIS HONOUR:
A Background
The applicant is a medical practitioner and specialist obstetrician and gynaecologist who lives and works in New Zealand. He has been in medical practice for at least 36 years and is permitted to practice in New Zealand, although not presently in his field of specialty. In this Court and, indeed, in the Victorian Civil and Administrative Tribunal (the Tribunal), he appeared in person.
The following emerges primarily from the applicant’s written explanations provided to the Australian Health Practitioner Regulation Agency (AHPRA), the Tribunal and, most recently, this Court.[1]
[1]In particular, the applicant’s email to AHPRA dated 19 September 2019 located at Courtbook (CB) 234, his written response to AHPRA dated 18 June 2020 (CB324-339), his written submission to the Tribunal dated 5 October 2020 (CB353-404), his affidavit to this Court dated 25 May 2021 (CB406-452), his written submission to this Court dated 12 August 2021 (CB4-59) and his written submission to this Court in reply dated 10 September 2021 (CB81-117). There are some aspects of mere detail that emerge only in the material put before this Court, but nothing turns on that; the essential facts and their sequence emerge sufficiently from the material put before the Board and, in turn, the Tribunal. I should add that there are some differences in sequence and detail between the versions of events given by the applicant and ‘J’ respectively. The recitation in these reasons is intended primarily to reflect the applicant’s own version (acknowledging that it is drawn from several different such versions, not all of which are ordered and complete).
In about May 2019, the applicant made contact with a woman referred to as ‘J’ via a website entitled ‘Seeking Arrangement’. It seems that he had previously had contact with other women, perhaps via the same website.[2]
[2]CB 327.
‘J’ was 26 years of age. He says that she was ‘young in comparison [to him]’.[3] The applicant deposes that the website is ‘a sugar daddy website where woman (sic) seek an allowance or some reimbursement usually in return for “sexual” favours’.[4]
[3]CB94.
[4]CB415.
The applicant maintains that he was seeking a relationship with ‘J’ and, in this Court, refers to having been ‘somewhat smitten’.[5] However, he earlier described the arrangement with her as ‘very much a transactional agreement’.[6]
[5]CB96. See also, T36 (‘I was absolutely enamoured by a young lady being interested in me’).
[6]CB328.
The applicant and ‘J’ communicated via text on various platforms. He made it clear that he wanted ‘to be intimate’ on the first date and says that they ‘discussed a financial arrangement for intimacy’.[7]
[7]CB393.
On 15 May 2019 the applicant met ‘J’ at a restaurant and they drank some alcohol before attending his professional premises, the ‘Womens (sic) Health Centre’. The applicant’s name appeared in large letters on the front of the building.[8]
[8]CB1693.
The applicant says that on this first occasion ‘J’ learned that he was a medical practitioner.[9] He says that they went to his office in order to print a contract. On the way they purchased a bottle of wine from a supermarket and ‘J’ later had a third glass of wine.[10]
[9]T40.
[10]The contract was not in evidence. In material before the Court, the applicant described the effect of the contract as including ‘some degree of exclusivity in that she required permission from me to see or date others as well as the use of condoms with all other partners’ as well as the fact that he is ‘polyamorous’. The applicant says that he ‘presumed’ that ‘J’ agreed to the contract in principle (CB28 & 440). It is not apparent that the contract was ever signed.
The applicant printed the contract and videoed ‘J’ ‘giving full consent to everything that she had agreed prior to us meeting’.[11]
[11]CB330.
At some point there was what the applicant described as ‘some consensual intimate activity’.[12] The applicant says that this was not videoed.[13] In this Court, the applicant suggests that the intimacy involved ‘holding hands, kissing and fondling’.[14]
[12]CB330.
[13]CB366. On the other hand, the applicant says that the purpose of his taking videos at this and other meetings was to avoid any allegation of rape. In this Court, the applicant said that he is ‘very aware of the Harvey Weinberger (sic) case and the #metoo movement’ (CB441).
[14]CB415.
The applicant says that no ‘penetrative intercourse’ took place on that or any other occasion.[15] That said, subsequent text communications suggest that oral sex took place on the first occasion,[16] and further text communications suggest that on other occasions ‘sex toys’ were used on ‘J’ in a context that seems to have involved her being tied up.[17] The applicant says that no ‘bondage’ occurred on the first occasion.[18]
[15]CB361. See also, CB96.
[16]CB361.
[17]CB367. See also, CB97.
[18]CB366.
On the first occasion, the applicant performed a vaginal swab on the applicant. That occurred in his examination room and his professional office was used to enter ‘J’’s details into his computer.[19] He admits that the test was undertaken in order to detect sexually transmitted diseases and that he did not send the results to her GP.[20] He later informed her that the test was negative.[21] The applicant says that ‘J’ requested that he perform the test instead of her having to go to a family planning clinic.[22] The purpose of the test, the applicant says, was to facilitate future unprotected sexual activity.[23] That said, it is not evident that he personally underwent such a test.
[19]CB94.
[20]CB363.
[21]CB335.
[22]CB330.
[23]CB414.
At the end of the meeting, it seems, the applicant ‘reimbursed’ ‘J’ in the sum of $100. In interview, ‘J’ said ‘he knew that I needed the money’ and ‘he just gave it to me randomly to help me out with food and stuff, and he was very insistent on the fact that he doesn’t like to give money to people’. The applicant took no issue with that account. Indeed, in this Court, he deposed that he gave ‘J’ the money because she ‘told me how much she was struggling’.[24]
[24]CB360. See also, CB415.
The applicant and ‘J’ subsequently communicated via text. In that context, the applicant offered $300 for a sex act that ‘J’ had not previously undertaken. He seems also to have been seeking unprotected sex.[25] There was an arrangement to meet on 17 May 2019, but it was rescheduled because ‘J’ said that she was ‘having a lot of pain’.[26]
[25]CB360-361. See also, CB440-441.
[26]CB358.
The second meeting occurred on 22 May 2019, again at the applicant’s professional premises. This meeting involved ‘sex toys’ and bondage, and was videoed. There was no payment on this or any subsequent occasion.
In the course of events on this second occasion, the applicant says that ‘J’ ‘became sore’ and he went to his cupboard, which contained Panadol, Ponstan, Tramadol and Midazolam. He says that ‘J’ said that she had used all of the medications listed, except Midazolam, and that they had not helped her pain. He gave her 3.75mg of Midazolam, without a prescription, in order, he says, to make her pain ‘more tolerable’. That said, he acknowledges that Midazolam is not an analgesic and that when giving it to ‘J’ he described it as a ‘date rape drug’.[27]
[27]CB367-368. See also, CB331.
Later, in interview, ‘J’ described this as having been ‘a scary thing to say to someone’ and said that she had been ‘weirded out’ by it and had only taken half of the Midazolam tablet provided. For his part, the applicant said that ‘J’ had not complained about this having made her feel uncomfortable.[28]
[28]CB367-368.
The applicant later sought to justify the supply of Midazolam as akin to the treatment of a ‘person close to you’ in an ‘acute’ or emergency situation.[29] That said, ‘J’ subsequently left the premises together with the applicant in an Uber, not an ambulance.
[29]CB375. See also, CB388.
It seems to have been in this general context that ‘J’ told the applicant that she ‘frequently developed pain’. It seems that the pain was abdominal and may have been connected with the earlier birth of a child. She thought that her GP had referred her to a pain management clinic, but it had come to nothing. The applicant offered to get his receptionist to ‘find out if this had indeed occurred’. On 24 May 2019 the applicant offered to refer ‘J’ to a pain clinic and obtained her permission to obtain her medical records from Waikato Hospital. His receptionist sent a letter seeking the records, which arrived much later.[30] In this Court, the applicant referred to the contemporaneous text messages, in which, in respect to the notes and proposed referral, he said ‘anything for my new baby’.[31]
[30]CB369-370.
[31]CB443.
They met again on 26 May 2019, again at the applicant’s professional premises. There was ‘intimacy’, which was again videoed. There was no payment. Afterwards, the applicant spoke with ‘J’ concerning her ‘pain issues’. He also says that he offered to refer her to a pain clinic on this occasion, which, he claims, was ‘exactly what is suggested in the guidelines’.[32]
[32]CB331.
They met on two further occasions, 30 May and 5 June 2019.[33] One of those occasions was at the applicant’s professional premises and the other seems to have been at a restaurant and then a motel in the presence of another woman described by the applicant as his ‘partner’[34]. It is not wholly clear what occurred on these further occasions, but one or perhaps both of them seem to have involved videoed ‘intimacy’.[35]
[33]CB358-359.
[34]It seems that the woman on this occasion described as the applicant’s ‘partner’ is different to his wife, who is named separately in his material and from whom it is not said that he has ever been separated.
[35]CB331.
After 5 June 2019, the applicant travelled to Australia and undertook locum duties in a rural location. In that context, he sent to ‘J’ a photograph of a patient taken after a forceps delivery.[36] He says that he took the photograph ‘with full permission of the patient’. That said, he also says that the patient was told that it was being taken to ‘send to a partner to show her what I had been doing’.[37]
[36]CB1694.
[37]CB364.
When later acknowledging this event, the applicant said both that it could not be raised by AHPRA and that a ‘mitigating factor’ was that he had been ‘covering all the specialists at the hospital so was on cover 24 hours a day, 7 days a week and had been surviving on just 2 to 3 hours of sleep a day’.[38]
[38]Ibid.
On about 1 July 2019, ‘J’ requested that the applicant delete the videos. The applicant says that he ‘offered to remove the video part of the recording but to keep the audio track’.[39] However, at another point he said that he told ‘J’ that he would not delete the videos but would ‘blur’ them so that she was not identifiable.[40] The latter is more consistent with the contemporaneous texts. In this Court, the applicant says that he plans to delete the videos ‘once all processes in this regard have been completed’.[41]
[39]CB370.
[40]CB331.
[41]CB441-442.
In August 2019, ‘J’ went to the New Zealand Police, principally concerning the videos. There seems to have been a suggestion – denied by the applicant – that he had threatened to release them. That suggestion seems to have been the focus of the police investigation and the issues involved seem to have been considered by reference to specific legislation in force in New Zealand. That complaint has not led to any charges being laid against the applicant.[42]
[42]CB290.
That said, ‘J’’s approach to the police led to the provision of the substance of ‘J’’s account of events to the Medical Council of New Zealand (the Medical Council).
B Disciplinary & associated processes
In September 2019, the Medical Council notified the applicant that it had referred the matter to a Professional Conduct Committee (PCC) and that it proposed to suspend the applicant’s practising certificate on an interim basis.
The applicant was then legally represented, and at that time his representatives said that the allegations were ‘categorically refuted’ and would be ‘vigorously defended’.[43] That said, it was offered that the applicant would enter into a voluntary undertaking.
[43]CB216.
The Medical Council resolved to suspend the applicant’s practicing certificate. Prior to that coming into effect, the applicant obtained a stay of the suspension by order of the District Court of New Zealand upon him abiding the terms of a voluntary undertaking. The stay was to remain in effect until the police and PCC investigations were complete. As I have noted, the police have since confirmed that no charges would be laid concerning the videos, but it seems that the PCC investigation remains on foot.
On 19 September 2019, the applicant notified AHPRA of the developments in New Zealand. In that email, he described ‘J’ as ‘an ex-partner of mine’ who was not a patient. He said that undertaking the swab, ‘technically at least, engages the doctor-patient relationship’, but that ‘any other allegations are vigorously denied’. The email appears to have enclosed the voluntary undertaking proposed to be given by him in New Zealand.[44]
[44]CB234.
On 1 October 2019, the Medical Board of Australia (the Board) imposed an interim suspension upon the applicant’s registration in Australia on the basis that he had been suspended in New Zealand.
On 20 March 2020, the District Court of New Zealand essentially upheld the applicant’s contention that an interim suspension was too severe in effect, and accepted that the conditions of a voluntary undertaking would be sufficient.[45] The voluntary undertaking permits the applicant to practice on his undertaking to comply with a list of specified conditions.[46] Before the Tribunal, and more recently in this Court, the applicant placed considerable reliance upon the decision of the District Court of New Zealand.
[45]Appanna v Medical Council of New Zealand [2020] NZDC 4844 (CB292-305).
[46]CB231-233.
On 21 May 2020, the applicant, who was at that point still legally represented, sought that AHPRA review the interim suspension of his registration in Australia. The decision of the District Court of New Zealand was enclosed. In essence, the point made was that the applicant had not been suspended in New Zealand.[47] At some point in May or June 2020, AHPRA revoked the earlier interim suspension upon the applicant’s Australian registration.
[47]CB318-322.
As I have noted, on 18 June 2020, the applicant provided AHPRA with a lengthy written explanation of events.[48] Several aspects of that account are referred to above.
[48]CB324-339.
On 23 June 2020, the Medical Board re-imposed the interim suspension of the applicant’s registration in Australia, but on a basis different to that earlier relied upon. In this instance, ‘immediate action’ was taken under s 156(1)(a) and (e) of the Health Practitioner Regulation National Law (the National Law). Those provisions state –
(1) A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if –
(a) the National Board reasonably believes that –
(i) because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety; or
…
(e) the National Board reasonably believes the action is otherwise in the public interest.
‘Immediate action’ is defined in s 155 of the National Law.
Under s 199 of the National Law, a decision to suspend the registration of a person may be appealed to the Tribunal. The applicant applied to the Tribunal on 11 July 2020.[49]
[49]CB690-693.
C The appeal to the Tribunal
The applicant appeared before the Tribunal in person. The Tribunal was comprised by a senior and presiding member together with two health practitioner members.
Before the Tribunal, the applicant relied upon the lengthy written explanations of events to which I have earlier made reference.[50]
[50]CB324-39 and 353-404. See also, the decision of the Medical Board dated 23 June 2020 (CB144-154). Cf., Kozanoglu v Pharmacy Board of Australia (2012) VR 656.
On 26 March 2021, the Tribunal ordered that the decision of the Medical Board dated 23 June 2020 be confirmed and published its reasons.[51]
[51]Appanna v Medical Board of Australia (Review and Regulation) [2021] VCAT 277 (‘Appanna’) (CB156-171).
In its reasons, the Tribunal noted the summary allegations made against the applicant, and his responses. Those allegations were –
(a) a promise to help with medical issues in exchange for sex;
(b) treatment/medical investigation in the context of sexual activity and alcohol consumption;
(c) sexual activity at the applicant’s clinic which he videotaped;
(d) giving [‘J’] prescription medication in the context of sexual activity;
(e) sharing a photograph of one of [the applicant’s] patients on the operating table during or after a gynaecological procedure/delivery; and
(f) refusing to delete the videos of sexual activity.
In the latter regard, the Tribunal noted that the New Zealand police had not charged the applicant in connection with any offence relating to the videos. The Tribunal noted that the concerns of the Medical Board had extended beyond that issue.
In this connection, the Tribunal had earlier noted that the applicant had essentially admitted some but not all of the allegations made. The Tribunal noted that, as in this Court, the applicant takes issue with ‘some of the detail including the sequence of events’. The Tribunal also recorded particular elements of the applicant’s position before it, namely that –
He denies he poses a serious risk, denies that she [‘J’] became his patient, maintains that the allegations are to do with private rather than professional conduct, which he will not repeat, and that an undertaking similar to the one he gave the Court in New Zealand will address any concerns.[52]
[52]Appanna, [9] (CB159).
The Tribunal also identified the applicant’s criticisms of the disciplinary process, and explained why they were misplaced.[53]
[53]Appanna, [33]-[37] (CB165-166).
The Tribunal identified the basis upon which the question of ‘immediate action’ should be approached in connection with s 156(1)(a) and (e) of the National Law,[54] and also referred to further material provided by the applicant, including a report in relation to an education program on the topic of professional boundaries, a report of a psychiatrist and various written references from patients and colleagues.[55]
[54]Appanna, [25]-[30] (CB163-165).
[55]Appanna, [32] (CB165).
In this context, the Tribunal addressed the ‘objective circumstances’, which also included noting aspects of the applicant’s denials. In this regard, the Tribunal observed that ‘in disputing the detail of the allegations, Dr Appanna provided additional evidence of concerning conduct’.[56]
[56]Appanna, [41]-[42] (CB167-168).
The Tribunal thereafter considered the allegations made against the applicant and his responses. The Tribunal also considered the ‘immediate action’ decision made by the Medical Board, the framework by which the Medical Board had made its decision and the basis upon which an appeal might be made to the Tribunal. The Tribunal stated, correctly, the applicable legal principles in respect of the taking of ‘immediate action’.
In that regard, the Tribunal identified that immediate action may be taken where ‘some action is needed to protect the public or public confidence while [the Medical Board] investigates’.[57]
[57]Appanna, [35] (CB166)
In respect of the question of risk, the Tribunal stated that –
Having considered the material before us, we agree with the Board’s submission that there are sufficient grounds for a reasonable belief that Dr Appanna poses a serious risk to persons, not only because of the undisputed conduct that he engaged in and the lack of judgment evident, but also because of what we agree is a disturbing lack of insight into the nature of what he did and the problems with it.[58]
[58]Appanna, [46] (CB168).
In that, the Tribunal incorporated by reference certain concerns earlier expressed by the Medical Board, and thereafter identified and addressed the risk presented as follows –
the risk is primarily to women Dr Appanna might meet out of hours, in pursuit of the sexual arrangements he referred to in the materials, necessitated, he said, because his wife was no longer able to have sex with him. It is a risk of misusing his position and privileges as a medical practitioner and causing harm.[59]
[59]Appanna, [49] (CB168).
In that, the Tribunal took into account that the applicant had completed education on professional boundaries. That said, the Tribunal noted that ‘Dr Appanna failed to show recognition before us that he had crossed the boundary between personal and therapeutic relationships in this case’.[60]
[60]Appanna, [53] (CB169).
In conclusion, the Tribunal expressed the ‘reasonable belief’ that the applicant posed a serious risk to persons and that it is necessary to take immediate action to protect public health and safety.[61]
[61]Appanna, [54] (CB169).
In addition, the Tribunal agreed with the submission of the Medical Board that considerations of public confidence arose, particularly having regard to the speciality in which the applicant was registered.
Thereafter, the Tribunal considered the form of ‘immediate action’ that should be taken, including giving specific consideration to the approach taken by the New Zealand District Court. The Tribunal did not consider that approach to be likely to ‘prevent the out of hours nature of the risk Dr Appanna poses’.[62] In that, the Tribunal was concerned to protect regional communities in Australia, where the applicant would propose to work as a locum.
[62]Appanna, [63] (CB170).
In conclusion, the Tribunal acknowledged the impact of the interim suspension on the applicant’s specialist registration, but noted that he could still work as a medical practitioner in New Zealand and that the suspension of his Australian registration therefore has ‘less impact than it would ordinarily’.[63]
[63]Appanna, [65]-[66] (CB170-171).
D The present proceeding
By notice of appeal dated 28 April 2021,[64] the applicant seeks leave to appeal from the order of the Tribunal on a question of law.
[64]CB756-771.
It seems that the application may strictly have been made out of time, although not in substance. The applicant’s notice of appeal refers to the application initially being declined.[65] Any application for an extension of time is not addressed in the respondent’s material and was not mentioned at all at the hearing. No prejudice is evident. If it is necessary to grant an extension of time, I would do so.
[65]See also, the applicant’s affidavit, [49] (CB414).
The application is made pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The basis of any such appeal is strictly limited by the terms of that provision. The applicant must identify and rely upon questions or errors of law involved in the decision of the Tribunal. There must be a real or significant argument that such error exists. Even if questions of law are identified, that does not mean that leave should be granted.[66]
[66]Transport Accident Commission v Hoffman [1989] VR 197, Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48 and Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167.
The notice of appeal states the following purported questions of law –
Question of law 1
1. Was VCAT entitled to allow Immediate Action when the infringements were committed in a co-regulatory jurisdiction?
Question of law 2
2. Was VCAT entitled to reject the judgement (sic) and conclusions issued by a Judge in a New Zealand District Court for the same infringement?
Question of law 3
3. Was it open on the evidence to conclude there was a reasonable belief that it was necessary to suspend the Appellants (sic) registration in order to protect the public?
a) Did VCAT err by not allowing alternatives to the Immediate action to be considered which will mitigate against any perceived risk to the public.
b) Was it reasonable for evidence provided by the Appellant in his defence to be ruled to be breaching the privacy of the complainant?
c) Was it open on evidence that the Appellant lacks insight and is (sic) lack of insight rather than the likelihood of repeating the infringement is a reasonable conclusion from the evidence?
d)Was it an error for VCAT to allow the presumption that the complainant was a patient on one hand but refer to her as a “person” that the Appellant met outside his day to day practice.
Question of law 4
4. Did VCAT err by allowing the investigation to be put on hold?
Question of law 5
5.Did VCAT err by allowing the addition of a new reason for the Immediate Action not considered at initial decision for immediate action and then failing to consider the evidence proffered as an explanation? i.e. the photo.
Question of law 6
6. Did Vcat (sic) err by considering the statements made to the Medical Council of New Zealand (MCNZ) by the police as uncontested and continuously quoting this evidence when the complainants (sic) statement to police and statement to the Professional Conduct Committee supplied to VCAT by the MCNZ under their MOU contradicts these statements and shows there is no evidence to draw the conclusion that:
“The information available shows that Dr Appanna provided medical treatment and conducted medical procedures on an individual (J) in order to facilitate sexual activity with that individual. His conduct in doing so is the antithesis of the integrity expected of registered medical practitioners and expected of patient centred medical practice and goes squarely to his ability to practise in an ethical manner.”
Question of law 7
7. Did VCAT err during the process by allowing the Appellant to be questioned when he was self-representing as the legal team and not giving evidence?
Question of law 8
8. Did Vcat (sic) err by dismissing the effects on the Appellant of an Immediate Action with no end date?
Question of law 9
9. Did VCAT err by not considering ruling the first Immediate action illegal and not awarding costs as requested by the Appellant.[67]
[67]CB756-758.
As I have noted, in this Court the applicant filed a detailed and lengthy affidavit, written submissions as well as written submissions in reply. That was in addition to the already lengthy and detailed material that he had placed before AHPRA and the Tribunal.
In the material before the Tribunal, together with the further material put before this Court, the applicant advanced –
(a) complaints about the overall process;
(b) personal criticisms of ‘J’, descriptions of her as a ‘prostitute’ and criticisms of her as ‘seeking financial gain from the situation’;[68]
[68]CB337.
(c) continuing complaints that ‘J’ was not a ‘true’ or ‘real’ patient;
(d) criticism of any suggestion that ‘J’ was ‘vulnerable’;
(e) assertions that it was his ‘inherent right’ to video ‘J’ and that her request that the videos be deleted was, for him, a ‘red flag’;[69]
[69]CB100 and 441.
(f) in that regard, an assertion that if he had deleted the videos he had ‘little doubt’ that ‘J’ ‘would have complained that the activity had been non-consensual’;[70]
[70]CB327.
(g) an assertion that he was approached in the carpark of his office by a man demanding money, absent which the man and his girlfriend ‘would reveal my [the applicant’s] activities’ – an event which the applicant sought to attribute to ‘J’[71] (albeit that when asked by the applicant whether she had any ‘jealous boyfriends’ she had replied ‘nope’[72]) – and then much later had said that he had ‘no proof’ that the event had been associated with ‘J’;[73]
[71]CB328.
[72]CB360.
[73]CB417.
(h) assertions concerning his own actions relating to ‘J’ that are at variance with the contemporaneous material as well as some of his own descriptions of the same events;[74]
[74]I have already referred to at least two of these instances. One was the repeated assertion that intimacy on the first occasion involved ‘fondling and kissing’, albeit that the contemporaneous text messages are suggestive of oral sex having been involved. Another is the suggestion that the applicant offered to delete the whole of the video tracks while retaining the audio, albeit that the contemporaneous text messages and some of the applicant’s other versions of the same event suggest that parts of the video tracks were to be retained, albeit ‘blurred’.
(i) references to the need to satisfy his sexual desires, dismissive references to ‘these women’[75] and the assertion that ‘it is not AHPRA’s role to protect these women from themselves and their decisions’;[76]
[75]CB327.
[76]CB428.
(j) plain misunderstandings of what had actually occurred at various points of the disciplinary process, in the District Court of New Zealand and, indeed, in the Tribunal; [77]
[77]In this particular regard, the applicant has maintained and continues to maintain that the New Zealand District Court accepted his contention that ‘J’ was ‘never a patient’ (See, for example, CB9, 91, 325, 390 and 411). His material quotes extensively from the reasons of Judge Harrop. However, a reading of those reasons reveals that his Honour did no more than accept that it was arguable that ‘J’ never became the applicant’s patient ‘in the strict sense’ (CB301). As I have indicated, similar and significant overstatements (and understatements) concerning the basis upon which ‘immediate action’ was imposed by the Medical Board and later confirmed by the Tribunal appear repeatedly in the applicant’s written material.
(k) concessions in rather begrudging terms as to what he describes as ‘lapses of judgment’, ‘indiscretions’ and ‘misdemeanours’;
(l) consequential assertions that his ‘transgressions’ fell on the ‘less serious’ side of the ‘spectrum’ or ‘scale’;
(m) shifting and rather defiant claims that he has been the victim of, in effect, punishment, bias and discrimination based in ‘moral judgements’, an offence to ‘moral sensibilities’, a disapproval of his ‘lifestyle’, ‘attitudes towards my activities in the bedroom’, ‘prejudice’ and racism;
(n) claims concerning what he describes as being the ‘catastrophic’ economic and other effects upon him;
(o) the assertion, in his most recent written material, that what occurred ‘should have remained private’;[78]
[78]See, in particular, CB35-36.
(p) the assertion that what occurred with ‘J’ was ‘perceptibly not as black and white as the Board have assumed’;[79]
[79]CB448.
(q) the further assertion, in this Court, that –
AHPRA and the Medical Board of Australia are extending their jurisdiction outside their boundaries by holding the Appellant accountable for people (not patients) that the Appellant (or any medical practitioner) meets in their personal capacity.[80]
(r) ultimately, the assertion, in this Court, that there is a ‘very strong argument’ that he has been the victim of a ‘miscarriage of justice’.[81]
[80]CB44.
[81]CB116-117.
Aspects of the applicant’s material are, in my view, of considerable concern; especially coming from a senior medical practitioner of long experience whose specialty is obstetrics and gynaecology. Indeed, some of it is downright alarming.
Viewed benignly, sentiments of the kind to which I have referred might be said to be indicative of a degree of muddled thinking. However, a reader of the materials to which I have referred would be entitled to view such sentiments – coming, as they do, from a senior and experienced specialist obstetrician and gynaecologist – as being more than simply benign in their potential to have an effect upon the applicant’s thinking and actions and therefore to contribute to a risk that others might be harmed; unwittingly or otherwise.
It is apparent that the Tribunal was concerned about the applicant’s lack of any true insight into or understanding of the significance of his actions and the risks posed by his attitudes and beliefs. It should be evident from what I have said that a consideration of the material before the Tribunal together with the material that the applicant has placed before this Court serves to confirm the soundness of that concern.
EQuestion 1: ‘co-regulatory jurisdiction’
The applicant’s notice of appeal and submissions point to a sequence of legislative provisions that he evidently considers to require that the Medical Board not receive a notification or take action in the present instance.
None of those provisions are presently applicable, for the reasons identified in the respondent’s written submissions.[82]
[82]CB73-74.
Moreover, the National Law is given extraterritorial operation, as far as possible,[83] and it would be curious if the governing legislation were by some means to be interpreted not to permit the investigation and disciplinary action in respect of medical practitioners, such as the applicant, who are both registered and seek to practise professionally in Australia.
[83]National Law, s 8.
In any event, in the particular case of the applicant, it seems that at least the taking and sending of the photograph following the obstetric procedure took place in Australia.
Any ground of appeal directed to ‘question 1’ must be rejected.
FQuestion 2: the conclusions of the New Zealand District Court
I have already noted the determination of the District Court of New Zealand concerning the applicant’s registration and continuing right to practice in that country while the PCC continues to investigate.
The applicant’s essential contention seems to be that the same approach should have been followed by the Tribunal. In a sense, his argument is an appeal to the doctrine of precedent.
However, the argument is misplaced. No binding precedent can arise from a determination of fact.
That must particularly be so when the material before the respective tribunals evidently differed so markedly. There is no suggestion that the written accounts of events placed by the applicant before the Medical Board and then the Tribunal – both of which, as I have noted, might be said to have contained material of a concerning nature – were before the District Court of New Zealand.
Similarly, the circumstances of the applicant’s proposed manner of practice in Australia are evidently quite different to that undertaken by him in New Zealand, which, as I have noted, was a matter referred to particularly by the Tribunal in its reasons.
The short point is that no question of law arises, let alone any error. Any ground of appeal based in question 2 must be rejected.
G Question 3: ‘open on the evidence’
Much of the applicant’s argument is directed to this ‘ground’, which concerns the Tribunal’s reasonable belief that the serious risk presented by the applicant required that his registration be suspended on an interim basis in order to protect the public.
In that regard, the reasonable belief of the Tribunal is said to be displaced or affected by specific ‘errors’ in –
(a) not allowing alternatives to the ‘immediate action’;
(b) ‘ruling’ that evidence provided by the applicant in his defence breached the privacy of ‘J’;
(c) concluding that the applicant lacks insight;
(d) presuming that ‘J’ was a ‘patient’ whilst at the same time accepting that the applicant met her ‘outside his day to day practice’.
Aspects of the applicant’s written and other argument directed to this ground stray well beyond the specific complaints identified. In that regard, the written material includes a range of further complaints such as that the Tribunal had –
(a) relied upon ‘hearsay evidence’ that has been ‘proven to be false’;
(b) failed to take account of the alleged lack of ‘credibility’ of ‘J’;
(c) failed to understand that the applicant’s ‘help’ of ‘J’ was ‘never in return for sexual favours’;
(d) failed to take account of a range of other factors such as –
(i) that, it is submitted, the applicant had ‘never wavered’ in his own statements;
(ii) the psychiatric and other assessments obtained by him to the effect that he is ‘not a danger to patients’;
(iii) the testimonials of colleagues and former patients;
(iv) that the applicant had a previously ‘unblemished record’ and had offered to be assessed by a psychiatrist;
(v) that he had given assurances that such ‘behaviour’ would not be undertaken again;
(vi) that he had undertaken courses and had not transgressed the voluntary undertaking in place in New Zealand;
(vii) that no charges had been laid against him by the New Zealand police and no other complainants had come forward; and
(viii) the so-called ‘principle of proportionality’ advanced to some extent by reference to other cases and the ‘scale’ and ‘spectrum’ referred to therein.
Elements of the above were encapsulated by the applicant orally in address at the hearing, as follows –
I made some errors of judgement over that three to five week period in May 2019, and there is absolutely no question that I have not repeated this (indistinct). And there’s little doubt as well that, in all of that there were impromptu decisions made on the spur of the moment, and were not thought out very well, I didn’t actually realise at the time that what I was doing with [‘J’] would lead to her becoming a patient or lead to the issues that have arisen. And there’s no evidence absolutely provided to conclude that, and (indistinct) the patients and I will repeat (indistinct) the whole issue is when the decision was made in September, in October 2019, at that stage, yes, you could see why the Board would have worries about risk, but they didn’t suspend me on risk, they suspended me on the fact that I was suspended, which wasn’t absolutely true.[84]
[84]T39.
In addition, under this ‘ground’, the applicant advanced arguments concerning what was at various points described as, in effect, impermissible punishment as a consequence of ‘moral judgements’ said to have been made by the Medical Board and Tribunal concerning his ‘lifestyle’.
A question of law will arise only if the Tribunal arrived at a conclusion that was not open on the evidence.[85] Questions of evaluation or weight of the evidence do not give rise to a question of law.
[85]S v Crimes Compensation Tribunal [1998] 1 VR 83, Myers v Medical Practitioners’ Board of Victoria (2007) 18 VR 48.
In my view, there is nothing any of the applicant’s four specific complaints stated in his written expression of the present ‘question’.
In respect of the first complaint, the Tribunal gave detailed consideration to the alternatives to suspension, and preferred that course for the reasons that it gave.[86] That course was open to it on the evidence and I can discern no error of law in the Tribunal’s consideration of it. Indeed, I can discern no error of any kind.
[86]Appanna, [61]-[67] (CB170-171).
In respect of the second complaint, the Tribunal did not ‘rule’ that the applicant’s approach to his ‘defence’ breached the privacy of ‘J’. To the extent that the applicant complains that it did, he points to an observation made by the Medical Board, not the Tribunal.[87] No relevant error of law arises from the Tribunal’s disposition of the matter.
[87]CB42.
I should add that I can see no error in the observation made by the Medical Board either. The applicant’s approach was, at the very least, wrongheaded.
In respect of the third complaint, it should be evident that, based upon the material before it, I am firmly of the view that it was open to the Tribunal to conclude that the applicant lacked insight.
In addition, having regard to the content of the applicant’s material, in particular, the opinions that he has obtained from psychiatrists, the testimonials from colleagues and the like and his attendance at courses concerning professional boundaries were entitled to be afforded very little or even no weight.
Much of that material – some of which was, as essentially observed by the Medical Board, in an unusual or denuded form[88] – was directed to the risk that the applicant might present to ‘patients’.
[88]CB152.
However, having regard to the applicant’s rigid adherence to notions of ‘real’ or ‘true’ patients as opposed to women such as ‘J’, together with, as the Tribunal noted, the nature of the risk that he posed to persons other than those whom he regards as being his ‘true’ patients, it was plainly open to the Tribunal to evaluate the evidence and identify the risk presented as it did. That is particularly so when it is quite evident from the material provided by the applicant to the Medical Board that ‘J’ was not the only woman with whom he had sought to pursue a connection of the kind described.[89]
[89]CB327.
Most recently, since the decision of the Tribunal, and in his written reply in this Court, the applicant has asserted that ‘from about August 2020’ he and his wife have ‘resumed intimate relations’ and that ‘any presumption that I will therefore have relationships outside my marriage now that this issue is resolved is speculation and certainly not open on the evidence’.[90]
[90]CB87.
Putting aside the ‘fresh’ nature of any evidence of this kind, and the nature of the present application for leave to appeal, together with the fact that, having regard to other evidence concerning the applicant’s activities[91], propositions of the kind now sought to be advanced might not necessarily be thought to flow inexorably as a matter of logic from one to the other, the applicant has not explained why it was that this claim did not appear in the submissions that he made to the Tribunal in October 2020.
[91]Including, as earlier noted, references suggestive of a distinction between his wife and his ‘partner’.
It is sufficient to say that assertions of this kind, at this point, can reveal no error of law in the Tribunal’s disposition of the matter.
Similarly, it will be apparent that the applicant contends, in effect, that he is now not at risk of repeating his ‘behaviour’ and that no-one is at risk from him.[92] To the extent that such a submission was also advanced before the Tribunal, it was not compelled to accept it, and plainly did not do so. It was open to the Tribunal to conclude that the applicant lacked insight for a whole host of reasons, and the fact that he so manifestly lacked insight (and, it seems, continues to lack such insight) means that it was entitled to approach any such claims with a considerable degree of circumspection.
[92]CB430.
In respect of the fourth specific complaint, this again seems to be a complaint concerning a statement made by the Medical Board, not the Tribunal.
It also seems to me to be an example of one of the applicant’s misunderstandings of what has in fact occurred. To refer to ‘J’ as a person that he met outside his day to day practice and also, in due course and in substance, a patient, is neither inconsistent nor erroneous.
On the applicant’s version of events he cultivated a relationship with ‘J’ outside his practice, but soon identified himself as a medical practitioner, took her to his professional premises, undertook a vaginal swab upon her in his examination room, gave her medication, spoke with her at some length about her complaints of regular and ongoing pain, sought to obtain her medical records and offered, personally, to refer her to a pain clinic. On any view, he was using and to some extent offering his medical and professional expertise to her as it might be thought that he would to any other patient, albeit that in the case of ‘J’ he was not writing any prescription for the medication supplied, nor taking any proper medical history or, evidently, keeping any record of the medical advice given.
Moreover, in respect of a woman with whom the applicant says that he had a ‘transactional agreement’, and who is said by him to have been ‘seeking financial gain from the situation’, it seems that ‘J’ obtained no more than a total of $100 for her troubles. And that was on the very first occasion, before any mention of her pain condition. The one thing that it seems obvious that ‘J’ stood to gain in the ‘transactions’ that followed seems to have been a degree of expert medical assistance and advice provided by the applicant, a registered, experienced and senior obstetrician and gynaecologist.
In that regard, while the applicant seems to baulk at any suggestion that his ‘help’ of ‘J’ was in return for ‘sexual favours’, such a conclusion seems to me plainly to have been open.
Further, the fact that the applicant remains evidently unable to appreciate the substance of the exchange in which he was participating does not seem to me to stand as a point in his favour. Indeed, it firmly underlines his absence of any proper insight into the nature of his actions and the risks that they could present.
It follows from the above that there is, in my view, nothing in any of the applicant’s four specific complaints as well as nothing in the broader suggestion that was not open on the evidence for the Tribunal reasonably to believe that the applicant posed a serious risk and that it was necessary to suspend his registration in order to protect the public.
For the most part, the applicant’s further and more general complaints advanced in the course of his written and other material are answered in the course of the above.
That said, I should add that the applicant’s complaints about ‘hearsay’ and an asserted lack of credibility of ‘J’ are also misplaced, essentially for the reasons given by the Tribunal. The Tribunal was not making ultimate findings of fact and did not need to do so. Further, the applicant’s own versions of events sufficiently supported the Tribunal’s consideration of the ‘objective circumstances’.
I should also add that, for the same reason, the applicant’s submissions concerning other cases, ‘proportionality’, the ‘scale’ and the ‘spectrum’ are not to the point. The most important consideration facing the Medical Board and, in turn, the Tribunal, was the nature of the risk presented by the applicant, which was of an unusual nature. The risk was, however, accurately identified and it was open to the Medical Board and, in turn, the Tribunal, to impose interim relief in the nature of a suspension.
An aspect of the applicant’s written complaints concerns the delay since the interim suspension was imposed.
There has plainly been delay, but it is hardly surprising that an investigation is evidently being undertaken by the PCC in New Zealand. That said, having regard to some of the applicant’s own material I would have thought that the Medical Board might well be in a position further to consider the ultimate question of the applicant’s Australian registration. In that regard, even the material already before the Medical Board and Tribunal contains details that might be thought to be sufficient to form a final view concerning many of the events involved, and it is plainly desirable that the present delay not continue indefinitely.
I am, of course, not intending to say that the applicant’s registration ought be dealt with in any particular way; merely that the Medical Board might well already have access to material sufficient to answer many of the questions that might otherwise have been thought to be awaiting the completion of the PCC’s investigation.
A further particular matter to which it is desirable to refer is the applicant’s various complaints of having been punished as a consequence of unjustifiable ‘moral judgements’ concerning his ‘lifestyle’ and the like.
There is nothing in the terms of the decisions of either the Medical Board or, more particularly, the Tribunal, that provides any sound basis for submissions of this nature. Indeed, the applicant’s material points to no particular passages said to betray any such ‘judgements’ and none are evident.
The applicant’s complaints in this regard are advanced no more than ‘in the broad’, however considerably more would be required, particularly in order to accept that any kind of extraneous and impermissible considerations had intruded such as to give rise to a question of law.
I should add that I do not accept that the fact that the Tribunal considered the applicant to have lacked insight to be indicative of either bias or the intrusion of unjustified extraneous considerations.
In my view, as I have indicated, the assessment that the applicant lacked insight was plainly open, and, indeed, his continuing complaints concerning matters such as the intrusion of unjustifiable ‘moral judgments’ in respect of his ‘private life’ and his adherence to rather rigid views concerning whether ‘J’ was ever his patient or not – neither of which were really to the point, and neither of which could realistically stand to displace the Tribunal’s assessment of the risk presented – strongly suggests that the applicant’s lack of any appropriate insight into the issues and risks involved is worryingly persistent.
For present purposes, however, it is simply sufficient to say that no question of law arises and nor is any error of law evident. In that sense, none of the applicant’s various complaints under this ‘omnibus’ ground engages the strict terms of s 148(1) of the VCAT Act.
For these reasons, in my view, any ground of appeal said to arise from question 3 must be rejected.
I should add that, as noted by the respondent, even if there were anything in the applicant’s various contentions concerning the reasonable belief of the Tribunal concerning the risk of harm presented, the Tribunal also acted upon the independent basis that it was necessary to take action in the public interest. That separate approach seems to me to have also been quite open on the evidence and I reject the minor and belated suggestion in the applicant’s material to the contrary.[93]
[93]CB88.
H Ground 4: investigation ‘on hold’
I have already referred to the applicant’s complaint concerning the delays in the investigation. There was, however, no error of the Tribunal that ‘allowed’ the investigation to be put on hold.
In short, for the purposes of s 148 of the VCAT Act, no delay in the investigation gives rise to any question of law arising from the order or decision of the Tribunal.
Question 5: the ‘new reason’ – the photograph
The applicant complains that, he says, the photograph which he took of a patient after an obstetric procedure while he was conducting a locum in regional Australia in about June 2019 was not relied upon by the Medical Board when initially suspending the applicant, but came subsequently to be relied upon in respect of the later ‘immediate action’.
As with question 4, no aspect of this complaint gives rise to any question of law arising from the order of the Tribunal.
Moreover, the photograph was before the Medical Board[94] and was certainly before the Tribunal. The applicant and respondent each referred to it in their respective submissions.[95]
[94]CB1692-1693.
[95]CB348 & 364.
In that context, the applicant acknowledged that he sent the photograph and asserted that he took it with the ‘full permission of the patient’. In that, he asserted that he told the patient that it was to be taken to ‘send to a partner’.[96]
[96]CB364. See also, Appanna, [11] (CB160-161).
It is, quite frankly, not easy to see how such an exchange could be said to amount to the giving of ‘full permission’, in that one is left wondering what the patient concerned would have said if the applicant had told her that he was proposing to send the photograph to a woman who had told him that until recently she had worked as a ‘stripper’ at a club called ‘Hush Hush’[97] and with whom he was in a ‘transactional’ sexual relationship and whom he has since broadly derided as a ‘prostitute’[98] and as having been ‘seeking financial gain from the situation’.[99]
[97]CB328.
[98]See, for example, CB373-375.
[99]CB337.
The exchange concerned, as well as the applicant’s subsequent contentions concerning it, might well be thought to be yet another of many examples of the applicant’s muddled thinking that, in my view, provided ample foundation for the interim relief imposed by the Medical Board and confirmed by the Tribunal.
In any event, the Tribunal was entitled to review the material before it and make the correct or preferable decision.[100] In that, the Tribunal evidently took account of both the evidence and the applicant’s submissions concerning the photograph.[101] The fact that those submissions were made did not require that they be accepted.
[100]Appanna, [36] (CB166).
[101]Appanna, [11] (CB160-161).
Moreover, the applicant has since repeatedly acknowledged that in sending the photograph he breached the privacy of his patient. In that, he has acknowledged that he did not ‘exercise appropriate judgement’.[102]
[102]CB417. See also, CB52, 96, 446 and 766.
In short, no question of law arises in respect of the Tribunal’s consideration and treatment of the issue of the photograph.
JQuestion 6: statements made to the police and Medical Council
In this ground, strictly speaking, the applicant seems to contend that the Tribunal erred in considering statements made by the police to the Medical Council of New Zealand to be ‘uncontested’.
The short answer to this contention is that the passages about which the applicant complains appear in letters from the Medical Board, and the Tribunal itself did no such thing.
In its detailed reasons, the Tribunal explained the manner in which it was required to consider the evidence and that it was not making any findings of fact. In that, it seems to have focussed upon ‘J’’s statement to police and the applicant’s responses, which it referred to extensively[103]
[103]Appanna, [11] and [33]-[38] (CB159 and 165-166).
More broadly, as submitted by the respondent, much of the applicant’s argument concerning this ‘question’ amounts to a further rehashing of the merits. To a considerable extent, that endeavour is dealt with already in connection with question 3. In any event, argument of that kind can give rise to no question of law.
Notwithstanding the above, it should be noted that in respect of this ‘question’, the applicant seems to again take issue with the contention that he provided medical treatment and conducted medical procedures on ‘J’ in order to facilitate sexual activity. For reasons already outlined, it will be evident that I consider such a finding to have been well open on the evidence.
K Question 7: questioning and ‘cognitive bias’
It is evident that the applicant made various written and other statements in the course of representing himself before the Tribunal, just as he did when representing himself in this Court.
In respect of the Tribunal, it is not bound by the rules of evidence and may consider its own procedure. The Tribunal was entitled to consider, take into account and act upon statements made to it by the applicant, just as it evidently did so in respect of the submissions that must have been made by counsel for the respondent.
To the extent that it is now submitted that the fact that the Tribunal members asked him questions ‘might’ amount to some form of bias or absence of procedural fairness, it is not evident that the applicant had any more reticence in making statements before the Tribunal than he did in this Court.
Nor is it said either that any objection was taken in the course of the proceedings before the Tribunal or that any particular part of the reasons of the Tribunal are problematic as a consequence of anything that the applicant might have said or not said.
Finally, the Tribunal’s reasons are both logical and unremarkable. Nothing in those reasons could rationally be said to support the contention that the Tribunal was moved by ‘cognitive’ or any other form of bias.
LQuestion 8: alleged error in ‘dismissing’ the effects upon the applicant of immediate action with ‘no end date’
Much of the applicant’s argument in respect of this ‘question’ is directed to assertions concerning what he describes as being the ‘catastrophic’ economic and other effects upon him of the ‘immediate action’.
It is unclear how much of this material was before the Tribunal. In any event, the Tribunal considered the appropriate form of ‘immediate action’, in the course which it took into account the extent of the applicant’s presently continuing right to practice in New Zealand including the effect upon him of any suspension of his ability to practise in Australia.[104] It nonetheless confirmed the decision of the Medical Board that an interim suspension ought be imposed.
[104]Appanna, [64]-[66] (CB170-171).
To the extent that the applicant seeks to complain concerning immediate action without an ‘end date’, I have already explained that no error of law can be said to arise from the decision or order of the Tribunal.
In short, no question of law arises.
MQuestion 9: alleged error in not considering ‘the first immediate action illegal and not awarding costs
This ‘question’ appears to be directed to the earlier decision of the Medical Board to suspend the applicant, which, it seems, was revoked in May or June 2020.
As it explained, the decision of the Tribunal was an appeal from the subsequent decision of the Medical Board dated 23 June 2020.[105]
[105]Appanna, [5] (CB158).
It follows that this ‘question’ does not arise from the order or decision of the Tribunal and so cannot engage s 148(1) of the VCAT Act.
N Conclusion
The applicant has identified no ‘question of law’ involved in the order or decision below, and certainly no question of law that might be accepted. For these reasons, leave to appeal must be refused.
I will hear the parties concerning the form of orders, and costs.
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