Bernadt v Medical Board of Australia - [2012] WASAT 185

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010

CITATION: BERNADT and MEDICAL BOARD OF AUSTRALIA [2012] WASAT 185

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
MR J MANSVELD (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)

HEARD: 17, 18, 19, 20 APRIL 2012 AND 7 JUNE 2012
FURTHER SUBMISSIONS FILED ON 20 JUNE 2012, 21 JUNE 2012 AND 20 JULY 2012

DELIVERED : 4 SEPTEMBER 2012

FILE NO/S: VR 205 of 2011

BETWEEN: IAN BERNADT
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent

Catchwords:

Medical practitioner Ear, nose and throat specialist Immediate action decision Suspension of registration Review application Practitioner sought review to enable him to continue to practise as ear, nose and throat consultant, but not surgeon Practitioner proposed conditions on registration that he be prohibited from performing surgery, submit to quarterly audits of his clinical notes and conduct audiometry in soundproof booth Nature of immediate action review proceedings Whether Tribunal reasonably believes that, because of practitioner's conduct or performance, he poses a serious risk to persons as an ear, nose and throat consultant Whether Tribunal reasonably believes that it is necessary to take immediate action to protect public health or safety by suspending practitioner's registration to preclude him from practising as an ear, nose and throat consultant Whether there is mandatory obligation under the Health Practitioner Regulation National Law to take further action in relation to health practitioner after deciding to take immediate action in relation to health practitioner Whether immediate action taken by Tribunal should be expressed as only having effect until final determination of further action taken by Medical Board of Australia against practitioner Whether Tribunal has power, and, if so, whether it is correct and preferable decision, to send matter back to Medical Board of Australia with direction that Medical Board of Australia decide to refer matter about practitioner to Tribunal under s 193 of Health Practitioner Regulation National Law

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 4(1)(a), s 11
Health Practitioner Regulation National Law (Western Australia), s 3(2)(a), s 155, s 156, s 156(1)(a), s 158, s 158(1)(a), s 158(1)(b), s 158(2), s 159(2), s 193, s 199(1)(h), s 202, s 202(1)(c), s 202(2), s 203, Pt 8 Div13
Medical Practice Act 1992 (NSW)
State Administrative Tribunal Act 2004 (WA), s 7, s 9, s 9(b), s 17, s 17(1), s 25(2), s 27, s 29(1), s 29(3), s 29(3)(c), s 32(1), s 60(2), s 87(2), Pt 3 Div 3

Result:

Application for review dismissed
Decision to take immediate action to suspend the applicant's registration affirmed

Category: B

Representation:

Counsel:

Applicant: Mr JRB Ley
Respondent: Ms PJ Giles

Solicitors:

Applicant: Tottle Partners
Respondent: Moray and Agnew

Case(s) referred to in decision(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
Kozanoglu v The Pharmacy Board of Australia [2011] VCAT 2085
Legal Profession Complaints Committee and Gandini [2006] WASAT 163
Liddell and Medical Board of Australia [2012] WASAT 120
Lindsay v New South Wales Medical Board [2008] NSWSC 40

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Dr Ian Bernadt sought review by the Tribunal of the decision of the Medical Board of Australia to take 'immediate action' by suspending his registration. Dr Bernadt practised as a specialist ear, nose and throat, or ENT, consultant and surgeon since 1974. Ultimately, Dr Bernadt did not contest the taking of immediate action to prohibit him from carrying out surgery, but sought to continue to practise as an ENT consultant with conditions placed on his registration.
As this case was only the second application for review of an immediate action decision made by the Medical Board of Australia brought before the State Administrative Tribunal, the Tribunal discussed the nature of immediate action review proceedings. The Tribunal said that it expects that, in the future, immediate action review proceedings will generally be conducted by the Tribunal and the parties as an expeditious, reasonably summary, interim/interlocutory process. These proceedings should not be conducted as though they were a referral of an allegation of professional misconduct by the Medical Board of Australia to the Tribunal.
The Tribunal formed the 'reasonable belief' that, because of Dr Bernadt's conduct and performance, he poses a serious risk to persons, and that it is necessary to take immediate action by suspending his registration to protect public health. The Tribunal found the following four areas of significant deficiency on the part of Dr Bernadt which are relevant to practice as a specialist ENT consultant:
•failure to take or record adequate medical history from patients;
•failure to conduct adequate audiometry on patients, including using inadequate audiological equipment;
•lack of uptodate medical knowledge; and
•failure to follow up patients and to have a system in place to follow up patients.
The Tribunal, therefore, affirmed the decision of the Medical Board of Australia to suspend Dr Bernadt's registration.
The Tribunal determined that, on the proper interpretation of the legislation, as contended by Dr Bernadt, a National Board is under a mandatory obligation to take further action in relation to a health practitioner after deciding to take immediate action in relation to the health practitioner. However, contrary to Dr Bernadt's contentions, the Tribunal determined that the immediate action taken by the Tribunal should not be expressed as having effect only until the final determination of the further action taken by the Medical Board of Australia and that the Tribunal does not have power to refer the matter back to the Medical Board of Australia with a direction that the Board should decide to take further action by referring the matter about the practitioner to the Tribunal. The Tribunal noted the omission of the legislation to confer an appeal/review right on a person who is the subject of an immediate action decision in respect of the failure of the relevant National Board to take a further action decision in respect of that person. In the absence of legislative amendment to confer a right of appeal from/review of a failure of a National Board to take further action, a practitioner's only recourse is an application for judicial review to the relevant Supreme Court.

Introduction

Dr Ian Bernadt (practitioner) has been a specialist otolaryngologist (commonly known as an ear, nose and throat, or ENT, specialist) since 1974, conducting both consultations and, until September 2011, surgery.
On 15 and 16 August 2011, Dr Michael Jay, an ENT specialist and the President of the Australian Society of Otolaryngology Head & Neck Surgery, undertook a clinical assessment of the practitioner on behalf of the Medical Board of Australia (Board). During the clinical assessment, Dr Jay reviewed a random selection of the files of 27 patients on which the practitioner had performed surgery, toured the practitioner's rooms, had some limited discussions with the practitioner and observed the practitioner performing surgery on nine patients at Mercy Hospital.
On the basis of the clinical assessment, Dr Jay provided a report dated 7 September 2011 to the Board in which Dr Jay was highly critical of the practitioner's competence as an ENT specialist. In the report, Dr Jay said that the practitioner's practice 'is in no way consistent with contemporary specialist otolaryngology and surgical practice in general' and that 'in my opinion Dr Bernadt needs extensive reskilling and training'. In an affidavit sworn on 28 November 2011, Dr Jay said that the report identified 'the grounds on which I believe Dr Bernadt failed to meet required professional standards' and 'I have identified issues in relation to his practice which are of grave concern'.
On the basis of Dr Jay's report, on 9 November 2011 the Board decided to take 'immediate action' by suspending the practitioner's registration pursuant to s 156 of the Health Practitioner Regulation National Law (Western Australia) (National Law), which applies as a law of Western Australia under s 4(1)(a) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law Act) and is set out in the Schedule to the National Law Act. Section 156(1)(a) of the National Law enables the Board to take immediate action in relation to a registered health practitioner if:
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[.]
The term 'immediate action' is defined in s 155 of the National Law to include 'the suspension, or imposition of a condition on, the health practitioner's … registration'.
In a letter to the practitioner dated 9 November 2011, the Board said that it decided to suspend the practitioner's registration on the basis of Dr Jay's report 'outlining serious concerns in respect of your practice as a medical practitioner, both surgically and in consulting patients'. The Board said that it concluded:
on the basis of the evidence presented to it, that, because of your performance, you pose a serious risk to persons and it is necessary to take immediate action to protect public health or safety.
On 11 November 2011, the practitioner exercised his right of 'appeal' against the decision of the Board to suspend his registration to the State Administrative Tribunal (SAT or Tribunal) as the 'appropriate responsible tribunal for the appealable decision', pursuant to s 199(1)(h) of the National Law. Section 11 of the National Law Act provides that a reference in the National Law to an 'appeal' against a decision is, for an appeal to SAT as the responsible tribunal, 'a reference to a review of the decision as provided under the State Administrative Tribunal Act 2004 Part 3 Division 3'. Section 17(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which falls within Div 3 of Pt 3 of the SAT Act, provides that:
If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.
This 'appeal' is therefore a 'review' application for the purposes of the SAT Act.
In his application, the practitioner sought an interim order that, pending the final determination of the proceeding, he 'be permitted to practise medicine subject to the condition that he does not perform surgery on any patient'. On 1 December 2011, pursuant to s 25(2) of the SAT Act, the Tribunal stayed the decision to suspend the practitioner's registration and imposed a condition on his registration, until the determination of this proceeding, that 'the practitioner is prohibited from performing surgery'.
In the application filed on 11 November 2011, the practitioner sought a final order setting aside the decision to suspend his registration. In the alternative, the practitioner sought an order setting aside the decision to suspend his registration upon the practitioner undertaking to the Tribunal to practise medicine only in accordance with conditions that he be prohibited from performing surgery on any person and that he submit to quarterly audits of his clinical notes which he takes in the course of his consulting practice. However, on 23 March 2012, the practitioner filed an amended application in which he only sought an order that the decision to suspend his registration be set aside and, in lieu thereof, it be ordered that conditions be imposed on his registration. Ultimately, the practitioner proposed that the following three conditions should be imposed upon his registration:
(a)that he be prohibited from performing surgery on any person;
(b)that he submit the quarterly audits of his clinical notes which he takes in the course of his consulting practice; and
(c)that he at all times perform audiometry in a soundproof booth.
In effect, by the amendment to the application, the practitioner conceded that:
a)because of his conduct or performance he poses a serious risk to persons as an ENT surgeon; and
b)it is necessary to take immediate action to protect public health or safety by placing a condition on his registration that he be prohibited from performing surgery on any person.
It falls to the Tribunal to determine whether it reasonably believes that:
a)because of the practitioner's conduct or performance, he poses a serious risk to persons as an ENT consultant; and
b)it is necessary to take immediate action to protect public health or safety by suspending the practitioner's registration to preclude him from practising as an ENT consultant.

Nature of immediate action review proceedings

This case is only the second application for review of an immediate action decision made by the Board under s 156 of the National Law brought before the Tribunal. The first application for review of an immediate action decision was determined in Liddell and Medical Board of Australia [2012] WASAT 120 (Liddell). In Liddell, the Tribunal observed at [26] as follows:
As noted, these proceedings are brought by way of 'appeal' pursuant to s 199 of the National Law. By virtue of s 11 of the Health Practitioner Regulation National Law (WA) Act 2010, a reference in the National Law to an appeal against a decision to the responsible tribunal, is a reference to a review of the decision by the tribunal under the State Administrative Tribunal Act 2004 (WA) Pt 3, Div 3. It is therefore a review by way of a hearing de novo SAT Act s 27(1). The hearing is not confined to matters that were before the original decisionmaker, in this case the Board, but may involve consideration of new material s 27(1) of the SAT Act. The hearing of the review may, therefore, as it has in this case, involve a more thorough consideration of evidence adduced by the parties than occurred before the Board. In this case, the Board adduced evidence from Patient A which was not before it when it made the decision to make immediate action. Likewise, Dr Liddell gave extensive oral evidence, was crossexamined, and called both expert and lay witnesses to support his case. In effect, therefore, although the parties were mindful of the questions to be answered, namely whether the practitioner's conduct gave rise to a serious risk to persons, and whether the proposed condition was necessary to protect public health or safety, the hearing proceeded much as though it was the hearing of an allegation of professional misconduct brought by the Board against Dr Liddell. The Tribunal was thus much better placed than was the Board to examine the alleged conduct for the purpose of assessing whether Dr Liddell's conduct poses a serious risk to persons such as to require the imposition of the condition imposed by the Board.
However, the Tribunal in Liddellat [24] endorsed the observations made by Hall J in the New South Wales Supreme Court in Lindsay v New South Wales Medical Board [2008] NSWSC 40 (Lindsay) concerning s 66 of the Medical Practice Act 1992 (NSW) as 'applicable to the process under s 156 [of the National Law]'. In Liddell, the Tribunal said the following at [20]:
… Although not in precisely the same terms as s 156 of the National Law, s 66 of the New South Wales Medical Practice Act required the relevant board to determine two matters. The first was whether the Board was satisfied that action under the section is 'necessary for the purpose of protecting the life or physical or mental health of any person'. The second was whether the necessary protection of life or physical or mental health required an order suspending the practitioner or imposing conditions on registration. At [77], Hall J noted that the process under s 66 'may necessarily not involve the Board or its delegates in a detailed examination of factual matters subjacent to a complaint or complaints'. He contrasted that process to an examination of the kind that might appropriately be undertaken in proceedings before the relevant disciplinary tribunal directed to finding 'the subject matter' of a complaint against a person 'to have been proved'. His Honour said that the material relied upon for the purpose of determining whether action should be undertaken under s 66 may include material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations.
The particular observations of Hall J in Lindsay endorsed by the Tribunal in Liddell at [24] as applicable to the process under s 156 of the National Law, were, as stated by Hall J in Lindsay at [79], as follows:
An inquiry, hearing or interview process conducted for the purposes of the Board or its delegates determining matters under s.66(1) could be considered to be preliminary or interim in nature or, as it was termed in the present proceedings, 'interlocutory'. Such a process, in the present case, as earlier observed, did not involve the making of findings of fact or the determination of the merits of any complaint. Any observations or conclusions expressed by the Board or its delegates under s.66 following an inquiry, hearing or interview, are, and can only be, strictly for the limited purposes of s.66(1). Such observations or conclusions are not to be equated to findings on material questions of fact as may be made by the Medical Tribunal in proceedings conducted by the Tribunal under Part 11 of the Act.
In light of the Tribunal's endorsement in Liddell of the applicability of the observations of Hall J in Lindsay in relation to the nature of the process under s 156 of the National Law, the Tribunal said the following in Liddell at [27]:
The approach taken by the parties in this matter throws up some potentially difficult procedural problems. For example, where the basis for the immediate action is an allegation or allegations of some form of serious misconduct, it can be expected that, following the immediate action, that conduct will become the subject of an application by the Board to the Tribunal for the imposition of a disciplinary penalty. If an application for review of the immediate action is made by the practitioner, and a full hearing as to the conduct takes place on that application, and findings in relation to the conduct are made, questions arise as to the effect of those findings of fact on any subsequent hearing of a disciplinary complaint about the same events. It is important therefore that the Board, in its notice of immediate action, identify the further action it proposes to take. That information may well inform decisions as to the nature of the hearing of a review application and the evidence to be heard on that application. In most cases it can be expected that the application for review of the decision to take immediate action will proceed more as an interlocutory or interim matter pending determination of the substantive complaint about the practitioner.
This case did not proceed 'as an interlocutory or interim matter pending determination of the substantive complaint about the practitioner', for two reasons. First, the Board has not taken any further action under Part 8 of the National Law that the Board considers appropriate, whether by referral of a matter about the practitioner to the Tribunal under s 193 of the National Law on the basis that the Board reasonably believes that the practitioner has behaved in a way that constitutes professional misconduct, or otherwise. (See further the consideration of issues 3, 4 and 5 below). Second, as in Liddell, to adopt and adapt the Tribunal's words in that decision at [26]:
Although the parties were mindful of the questions to be answered, namely whether the practitioner's conduct gave rise to a serious risk to persons, and whether [suspension of the practitioner's registration] was necessary to protect public health or safety, the hearing proceeded much as though it was the hearing of an allegation of professional misconduct brought by the Board against [the practitioner].

The final hearing in this proceeding occupied five days. In addition, the parties collectively filed some 84 pages of written submissions and the Board filed a further affidavit in response to further submissions made, with leave, by the practitioner in relation to issues 3, 4 and 5 discussed below.
Under s 9 of the SAT Act, the main objectives of the Tribunal in dealing with matters within its jurisdiction include:
(b)to act as speedily and with as little formality and technicality as is practicable and minimise the costs to parties[.]
Under s 27 of the SAT Act, immediate action review proceedings may involve material and arguments which were not before the Board. Furthermore, under s 32(1) of the SAT Act, the Tribunal is bound to afford procedural fairness to the parties.
However, having regard to the Tribunal's objective in s 9(b) of the SAT Act and to the particular nature of immediate action review proceedings, the Tribunal expects that, in the future, these proceedings will generally be conducted by SAT and the parties in the manner contemplated by Hall J in Lindsay, namely as an expeditious, reasonably summary, interim/interlocutory process. These proceedings should not be conducted as though they were a referral of a matter about a health practitioner by the Board under s 193 of the National Law.
Finally, we note that, although immediate action review proceedings should not be conducted as though they involved a referral under s 193 of the National Law, because a practitioner's reputation or their capacity to earn a livelihood in their registered vocation is at stake, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach, in order to form a reasonable belief under s 156 of the National Law that because of a health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety: see Legal Profession Complaints Committee and Gandini [2006] WASAT 163 at [62] [65] referring to Briginshaw v Briginshaw (1938) 60 CLR 336.

Issues for determination

The following five principal issues arise for determination in this review:
1)Whether the Tribunal reasonably believes that, because of the practitioner's conduct or performance, he poses a serious risk to persons as an ENT consultant.
2)Whether the Tribunal reasonably believes that it is necessary to take immediate action to protect public health or safety by suspending the practitioner's registration to preclude him from practising as an ENT consultant.
3)Whether a National Board is under a mandatory obligation to take further action in relation to a health practitioner after deciding to take immediate action in relation to the health practitioner.
4)If the answer to (3) is 'yes', whether the immediate action taken by the Tribunal on review should be expressed by the Tribunal as having effect until final determination of the further action taken by the Board against the practitioner.
5)If the answer to (3) is 'yes':
(a)whether the Tribunal has power under s 29(3)(c) of the SAT Act; and, if so,
(b)whether it is the correct and preferable decision for the Tribunal,
to refer the matter back to the Board with a direction that the Board should decide to refer the matter about the practitioner to the Tribunal under s 193 of the National Law, that it take the further action forthwith, and that it serve a notice on the practitioner, under s 158(1)(a) of the National Law, informing him of the immediate action and the further action which it is taking.
The Tribunal will address each of these issues in turn.

Does the Tribunal reasonably believe that, because of the practitioner's conduct or performance, he poses a serious risk to persons as an ENT consultant?

In Kozanoglu v The Pharmacy Board of Australia [2011] VCAT 2085 (Kozanoglu), the Victorian Civil and Administrative Tribunal (VCAT) rejected a submission made on behalf of a pharmacist in immediate action review proceedings that:
on a proper construction of s 156 [of the National Law], the tribunal was obliged to consider the applicant's conduct as a pharmacist and decide whether he is 'a fit and proper person to continue to hold registration'. That he submitted required the tribunal to look at all aspects of the applicant including his past conduct. (At [25])
VCAT then, at [26], said the following in relation to a review tribunal's task in immediate action review proceedings under the National Law:
… The tribunal approaches its task on the basis that s 156 [of the National Law] requires it to consider the applicant's conduct as shown by the evidence before it. Here, it is the applicant's conduct as notified. The tribunal must decide on the evidence whether it reasonably believes the evidence shows that the applicant's conduct poses a serious risk to persons such that it is necessary for the taking of immediate action to protect public health [or] safety. The tribunal is not obliged on the hearing of a review of the decision of the Board made using the power in s 156 to decide whether the conduct of the applicant shows him to be not a fit and proper person to be registered as a [health practitioner]. It must assess the conduct of the applicant relative to the risk posed by the conduct to public health and safety and decide what (if any) action of an immediate nature needs to be taken. The intent of s 156 is to provide a power entirely protective of the public.
The power conferred by s 156 of the National Law to take immediate action gives effect to the object of the National Law to establish a national registration and accreditation scheme for the regulation of health practitioners which has, as one of its objectives:
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[.] (s 3(2)(a) of the National Law)
As the Board submitted, although the practitioner no longer contests the immediate action decision insofar as it prohibits him from performing surgery, 'nonsurgical treatment also carries with it risk, which can arise from the prescription of drugs, or the decision not to treat a particular condition, or the failure to diagnose a particular condition'. As the Board also submitted, it is significant that the practitioner practises as a specialist. As Ms PJ Giles submitted on behalf of the Board:
Patients may only consult the practitioner on referral from the general practitioner. The general practitioner and the patient seeks specialist, expert treatment for the patient because the general practitioner's skills and experience are inadequate to treat the patient. The specialist represents the peak of the hierarchy of skills and experience available within the medical profession.
The specialist is also expected by the general practitioner, and the public, to be up to date with the latest technological developments in their discipline in order that their patients can gain access to the best possible treatment.
The Tribunal reasonably believes that, because of the practitioner's conduct and performance revealed by the evidence, he poses a serious risk to persons as an ENT consultant. The evidence demonstrates the following four areas of serious deficiency on the part of the practitioner which individually and collectively cause us to form the reasonable belief that he poses a serious risk to persons as an ENT consultant.

Failure to take or record adequate medical history from patients

Dr Jay examined the practitioner's clinical/case notes in relation to 36 patients. These case notes formed part of the evidence before the Tribunal. In his report to the Board dated 7 September 2011, Dr Jay described the practitioner's case notes as 'skeletally brief' and as lacking in detail. When asked, in crossexamination, about the importance of taking a patient's history, Dr Jay gave the following evidence:
The history is the most important investigation you're given. That's I mean, you get more information from your history. You probably get just on an average you get 70% of the information about a patient's condition listening to the patient tell you about it and then, and then your, your examination and, the tests that you might do give you other information. (T:77.5; 18.04.12)
Dr Jay also discussed the particular importance, for an ENT specialist, to properly consider whether a patient has any allergies. He said that:
… If a patient is sent to you with sorry, if a patient is sent to an ENT surgeon with complaints of nasal obstruction and maybe other symptoms, you've got to entertain the possibility well, you've got to entertain the possibility that this patient may have an allergy as an underlying cause for that. And to do that you need to take a history, do an examination and do some tests, and a screening test for this is a blood test and that'll tell you whether or not the patient does have an allergic tendency. Treating patients with allergies is generally a medical problem, not a surgical one. (T:81.6; 18.04.12)
In response to Dr Jay's criticism of his case notes, the practitioner gave the following evidence in his statement of evidence dated 20 January 2012:
With each of my patients, I take a complete medical history at the initial consultation.
However, if, in answer to a question of mine, the patient answers in the negative, I do not write that down, because it is not relevant to my diagnosis or treatment.
I do not accept Dr Jay's criticisms of my case notes.
I consider my case notes are adequate.
…
Dr Jay says that, in the notes he reviewed, he saw no evidence of investigation of allergies.
However, I always ask patients if they have any allergies.
If a patient has an allergy I record the allergy in my notes.
If the patient says that he or she has no allergies, I make no record.
Under crossexamination, the practitioner gave the following evidence in relation to his practice in taking and recording patient medical history during consultations:
You will agree with me, don't you, that [if] an inadequate past medical history is taken, this can lead to errors and to risk to patients?---I think so, yes.
Now, explain to us again what your usual practice is in recording past medical history for a new patient?---I ask them if they have any other serious illness. I check the past history in the GP's letter, the general practitioner's letter, and I ask them about any bleeding tendency or whether they are on anticoagulants … .
I ask them about any previous medical history, whether any allergic history, I always ask that. I ask them about bleeding problems if they take - especially if they take anticoagulants.
…
Do you ask about current medications?---I do indeed.
So previous and current medications?---I ask them which antibiotics they've had and I ask them if they're allergic to any antibiotics.
Do you ask them if they're allergic to any substances apart from antibiotics?---What do you mean?
Hay fever?---I mentioned before that -
Bee stings, nut allergies?---Sure, as I mentioned before, I ask them about allergies. I mentioned that.
All right. So this is quite a lengthy list, specific matters that you're asking about?---Yeah, it doesn't take long, either.
If any of these matters are referred to in a GP's note to you, the referral, do you ask about them?---That's right.
Well, yes or no?---Well, I usually look and say, 'I see you've had a heart attack four years ago and you've had bypass surgery.' They say, 'That's right.' And I say, 'Is everything okay?' They say, 'Fine.' I say, 'Are you taking any Warfarin?' and they say yes or no and I make a note of it.
All right. If, for example, a GP says to you, 'This patient is allergic to bee stings,' do you ask about allergies in that case?---I always ask about allergies.
Is it your evidence that if you get a positive response to any of these questions you make a note of it?---That's right.
In every case?---In all the major problems, that's right.
Major problems?---Yeah, especially medications.
(T:147.7149.1; 19.04.12)
However, as Ms Giles submitted, the evidence before the Tribunal shows that 'on numerous occasions, patients themselves identified in their hospital records that they suffered from allergies and have past and current medical problems which were not noted by the [practitioner] in his notes'. Indeed, the patients' records in evidence reveal that the practitioner either failed to take or failed to record an adequate patient history in relation to 13 out of 36 patients. In some cases, the evidence shows that the practitioner did not take or record a history in relation to allergies, major operations, complications or medications, which were not referred to in the general practitioner's referral, whereas he told the Tribunal that he always takes a complete medical history at the initial consultation.
Patient SC was an eightyearold boy on whom the practitioner performed nasal surgery. In his case note, the practitioner recorded no past history in relation to SC and the referring doctor recorded no past medical history or allergies. However, when the surgical/medical patient history was subsequently completed at Mercy Hospital on behalf of SC, it was recorded that SC underwent a dental procedure in the previous year, that he had an allergy to peanuts/cashews which caused a swelling reaction, and that he had previously had a general anaesthetic which caused an unusual reaction. Under crossexamination, the practitioner conceded that he did not elicit any of this patient history. Before he was taken to the surgical/medical patient history completed at Mercy Hospital, the practitioner said:
As I've mentioned before, if he did have allergies I would have written it down. (T:151.2; 19.04.12)
After the practitioner was taken to the surgical/medical patient history, and confirmed that he did not record the patient's allergy in his case note, the practitioner gave the following evidence:
Yes, so that has not been a history that you have elicited is it?No.
Is there any particular reason for that?No, and I asked and they didn't tell me. They didn't tell the GP either.
Is it possible that you didn't ask, doctor?I did ask and they didn't tell me that
You have no specific recollection do you of seeing this child?No, not a specific
No. So you are relying, are you, on your usual practice when you say that you definitely did ask?It's part of my routine and I also check the GP's letter.
Peanut or cashew allergy can be quite a serious matter can't it?They can.
Can be fatal, in fact?I've heard so. (T:151.8152.2; 19.04.12)
In relation to his failure to record the fact that the patient had previously had an unusual reaction to a general anaesthetic, the practitioner gave the following evidence:
Something that should have been elicited by you in your past medical history, is it not?Well, noone mentioned it.
You didn't ask though, did you?I probably didn't, no.
Given a nineyearold child?I don't recall.
Yes. You should have asked the mother or whoever brought the child in 'Has the child ever had an operation before?' shouldn't you?I probably did but I don't remember.
No. The child clearly had had an operation before. That's right, isn't it?I don't know.
It's a bit of a concern, isn't it, doctor, that these two matters were not elicited by you in your first consultant?That's right, but I did ask about allergies because that's routine and it's apparent whoever it was didn't mention peanuts; neither did the GP, nor to myself. Now, I'm not sure what operation. I should have found out what operation the child had but I don't know. That's a bit of a concern to me but I don't know what operation the child had. He had a dental procedure. (T:152.3152.7; 19.04.12)
It is simply not credible for the practitioner to suggest that, had he taken an adequate medical history and asked about allergies, previous operations and complications, when those matters were recorded when the surgical/medical patient history was subsequently completed at Mercy Hospital, that the practitioner would not have been told. This is particularly so, because, as the practitioner conceded, peanut or cashew allergy can be a life threatening condition. It is likely that the practitioner would have been given the same medical history as was disclosed at Mercy Hospital had he asked. As he also conceded, he should have, but 'probably didn't' ask about previous operations and complications.
Similarly, in relation to Patient AC, who is a nurse, the practitioner failed to record any allergies or past medication in terms of past history on his case note. However, when Patient AC completed the surgical/medical patient history at Mercy Hospital where the practitioner performed a tonsillectomy on her, the patient recorded that she takes Erythromycin, an antibiotic, and that she has an allergy to Gentamicin, which is a drug, causing her a rash. Neither the antibiotic nor the allergy were identified in the referring doctor's letter to the practitioner. When asked, in crossexamination, about his failure to elicit AC's allergy, the practitioner gave similar evidence to the similar question in relation to SC, namely that 'she didn't volunteer that because I asked her' and 'I ask about allergies' (T:158.2158.3; 19.04.12).
However, the practitioner conceded that, because AC is a registered nurse, 'you would expect she would have a higher level of knowledge, or a higher level of knowledge than the general community about her health' (T:156.3; 19.04.12). It is simply not credible for the practitioner to suggest that, had he taken an adequate medical history and asked AC about her current medications and allergies, when she recorded that history at Mercy Hospital, the patient, particularly given that she is a nurse, would not have told the practitioner of her medication and allergy. It is likely that the patient would have disclosed these matters to the practitioner had he asked.
Similarly, in relation to Patient MD, a oneyearold child, the practitioner did not record by way of past history in his case note that the patient was on any medication or was allergic to penicillin, whereas the surgical/medical patient history completed at Mercy Hospital records that the patient was on Erythromycin at the time the practitioner saw the patient and that the patient has an allergy. Again, when crossexamined about his failure to elicit a past medical history in relation to medication and allergy, the practitioner said 'but the mother didn't mention that he was allergic to penicillin when I asked' and 'it wasn't mentioned to me nor mentioned by the GP' (T:161.4161.5; 19.04.12). However, again, it is simply not credible for the practitioner to suggest that, had he taken an adequate medical history and asked about medications and allergies, when those were recorded at Mercy Hospital, he would not have been told. It is likely that, had the practitioner asked, he would have been given the same medical history as was disclosed at Mercy Hospital.
Similarly, in relation to Patient RM, who is an enrolled nurse, the practitioner did not record that the patient was taking Zandip or Atacand Plus medications, nor that she was allergic to bee stings, in terms of past history on his case note, although the patient recorded that she was taking these medications and suffered from this allergy when she completed the surgical/medical patient history at Mercy Hospital where the practitioner performed a tonsillectomy on her. When the practitioner was crossexamined about these omissions from the past history that he recorded in the case note, he at first said that those matters 'would be recorded on her card' and that 'she didn't tell me at the time she was allergic to bee stings' (T:169.5; 19.04.12). However, when he was asked whether 'it's possible, isn't it, that you didn't ask her?', the practitioner conceded 'it's possible but it's not probable' (T:169.6; 19.04.12). Again, it is simply not credible for the practitioner to suggest that, had he taken a proper history and asked about current medications and allergies, that the patient, who subsequently recorded taking the medications and suffering from the allergy, particularly being an enrolled nurse, would not have told the practitioner. It is likely that the patient would have told the practitioner about these matters had he asked.

In relation to Patient AN, the practitioner did not record by way of past history in his case note that the patient had a history of blood pressure problems. The referring general practitioner did not identify blood pressure problems. However, when the patient completed the surgical/medical patient history at Mercy Hospital where the practitioner performed a tonsillectomy on her, she indicated that she had blood pressure problems. When asked, in crossexamination, as to whether he could offer any explanation for his failure to record the patient's history of blood pressure problems in his case note, the practitioner said 'she never told me' and 'I did ask and it wasn't in the GP's letter' (T:172.2172.3; 19.04.12). Again, it is simply not credible to suggest that, had the practitioner taken an adequate medical history and asked the patient about blood pressure problems, which she indicated she had at Mercy Hospital, that the patient would not have told him. It is likely that the patient would have told the practitioner about blood pressure problems had he asked.
In relation to Patient RJ, the practitioner recorded no past history in his case note. However, when the patient completed the surgical/medical patient history at Mercy Hospital where the practitioner performed ear surgery on him, the patient recorded that he had suffered from pneumonia and heartburn. Neither of these were referred to by the referring general practitioner. Although the practitioner conceded that he did not record either of these conditions in terms of past history on his case note, he said 'well, it doesn't mean to say that I didn't inquire about it' and that, although he had no recollection of the consultation, 'I always inquire about the past medical history' (T:173.8173.9; 19.04.12).
The practitioner recorded no past history on his case note in relation to Patient RM. The general practitioner's referral did not record any past history and indicated that there were no known allergies. However, when the patient completed the surgical/medical patient history at Mercy Hospital where the practitioner performed ear surgery on him, the patient recorded that he had undergone three operations, including two in the previous three years, and that he was on Lipitor and Cartia medications. The two most recent operations were in relation to prostate cancer and hand surgery. The practitioner gave the following evidence under crossexamination in relation to his failure to record the past surgeries and current medications:
GILES, MS: The details concerning prostate cancer in 2008 and the hand surgery in 2010 were not elicited by you?---No.
The detail concerning Cartia was not elicited by you, yes?---No. He didn't tell me about Cartia.
What is it?---Cartia is an Aspirin.
That would affect bleeding, wouldn't it?---It might, yeah. A small dose of Aspirin.
Yes. In fact, many surgeons inquire with their patients as to whether they are on Aspirin and suggest they go off it prior to surgery, don't they ?They do.
Do you do that?---Not necessarily, no.
Nonetheless, there are details provided by the patient which you didn't elicit in your examination?---That's right.
And which were not provided to you by the general practitioner?---That's right, nor by the patient.
Well, you say nor by the patient, but let me ask you this: Can you remember in your consultation with [RM] on 3 February 2011 inquiring about whether he had any past medical history or not?---I can't remember, but I always ask about past medical history.
Can you remember inquiring about whether he was taking any medication or not?---I always ask that as well.
So the answer is, no, you cannot remember?---I can't remember, no.
(T:176.2176.7; 19.04.12)
In relation to Patient TW, the practitioner only recorded 'depression' as past history in his case note. However, when the patient completed the medical/patient history at Mercy Hospital where the practitioner performed nasal surgery on her, she recorded a history of six previous operations, including three the previous year, that she was taking two daily medications, that she had suffered from 'gastric reflux/hiatus hernia/heartburn/indigestion/stomach ulcer' (but did not indicate which of these conditions applied to her) and that she had suffered from significant neck/back injury problems. None of these previous operations, current medications or other conditions were identified by the general practitioner in the referral.
In relation to Patient TA, a 13yearold girl on whom the practitioner performed nasal surgery, the practitioner failed to record in his case note that the patient suffered from blood clots, although when the patient's mother completed the surgical/medical patient history at Mercy Hospital, she recorded that the patient had had blood clots. Under crossexamination, the practitioner said that 'blood clots' meant 'possible bleeding problems' (T:182.3; 19.04.12).
In relation to Patient KB, the practitioner recorded no past history on his case note, although when the patient completed the surgical/medical patient history at Mercy Hospital where the practitioner performed nasal surgery on her, she recorded that she suffered from 'severe asthma' and was allergic to seafood with the allergic reaction being 'severe breathing problems, swelling from the throat'. Neither the asthma nor seafood allergy was noted in the letter from the referring general practitioner to the practitioner. Under crossexamination, the practitioner said that, although he did not record asthma in his case note, he 'assumed she had asthma' because she was taking Seretide (T:19.4; 20.04.12). In relation to his failure to record that the patient had a seafood allergy, the practitioner gave the following evidence:
You've already agreed with me, doctor, that someone with a severe case of nasal obstruction may well be suffering from an allergy?Correct.
There's no indication here that you've elicited any kind of allergy history from her?I did ask her, and she didn't tell me about seafood allergy, and she didn't tell me about any other allergy.
You have no recollection of seeing this particular patient?No, you're quite right. But I would have asked her sorry.
All right?I routinely ask every patient. (T:19.820.2; 20.04.12)
However, it is simply not credible for the practitioner to suggest that, had he taken an adequate medical history from Patient KB and asked her about asthma and allergies, when she later recorded that she suffered from 'severe asthma' and from a 'seafood allergy' with a reaction of 'severe breathing problems, swelling from the throat', that the patient would not have told the practitioner. It is likely that the patient would have disclosed these matters to the practitioner had he asked.
In relation to Patient DC, the practitioner recorded no past history in his case note, although when the patient completed the surgical/medical patient history at Mercy Hospital where the practitioner performed nasal surgery on him, the patient recorded that he had four previous operations or procedures, including one the previous year, and that he was taking three medications daily. None of these matters were disclosed in the general practitioner's referral to the practitioner. When crossexamined about his failure to record these matters by way of past history in his case note, the practitioner's explanation was that 'sometimes patients forget that they have had surgery, you know, that they have had previous surgery and they don't mention it' (T:15.2; 20.04.12). However, it is not credible to suggest that, had the practitioner taken an adequate medical history from the patient and asked about previous operations and current medication, that the patient, who subsequently identified these matters, would not have told the practitioner. It is likely that the patient would have disclosed these matters to the practitioner if the practitioner had asked.
In relation to Patient PH, the practitioner recorded no past history in his case note, whereas, when the patient completed the surgical/medical patient history at Mercy Hospital where the practitioner performed nasal surgery on him, he recorded that he had had three major surgeries in the past, including spinal surgery, and that he had previously had a blood transfusion. None of these matters were disclosed in the general practitioner's referral to the practitioner. Under crossexamination, the practitioner said that the patient 'never mentioned that he'd had a previous blood transfusion' (T:11.8; 20.04.12). However, it is not credible for the practitioner to suggest that, had he taken an adequate medical history and asked about previous operations, allergies and blood transfusions, that the patient, who subsequently recorded those matters, would not have told him. It is likely that the patient would have disclosed these matters if asked by the practitioner.
Finally, in relation to Patient AH, the practitioner did not record any past history in his case note, whereas, when the patient completed the surgical/medical patient history at Mercy Hospital where the practitioner performed nasal surgery on her, she recorded that she had had a hysterectomy, was currently taking six daily medications, had an allergy to fish with the reaction of itching, had a history of blood clots and easy bruising over 25 years, suffered from asthma and 'bad' shortness of breath, had previously had pneumonia and had previously suffered from emphysema. In terms of specific dietary requirements, the patient stated 'no fish'. Under crossexamination, the practitioner said in relation to medications that 'I asked her and she didn't tell me anything' (T:6.9; 20.04.12) and that 'I asked her about her previous illnesses and she didn't tell me anything at all' (T:7.1; 20.04.12). The statements by the practitioner are simply not credible in light of the information disclosed by the patient when she completed the form at Mercy Hospital. Had the practitioner taken a proper history from the patient and asked her about previous operations, current medications, allergies and other past conditions, which she disclosed subsequently, it is likely that the patient would have told the practitioner.
Given the seriousness of many of the aspects of the past medical history that the practitioner did not refer to in his notes (and which were not referred to by the general practitioner in the referral), including allergies, major operations, complications and current medications, and the large number of patients in respect of whom the practitioner's consultation notes are deficient in relation to past history, we find that the practitioner fails to take or record adequate medical history from patients. As Ms Giles submitted, 'either way, the result is an obvious risk to patients'. Because of the practitioner's conduct and performance in failing to take or record an adequate medical history from patients, as Ms Giles submitted, the practitioner poses a serious risk to persons in terms of conditions being potentially missed and patients receiving inadequate or wrong treatment. Indeed, the practitioner conceded in crossexamination that 'if an inadequate past medical history is taken, this can lead to errors and to risk to patients'.
Mr JRB Ley submitted on behalf of the practitioner that:
Although the [practitioner's] clinical notes were brief, there was no evidence to the effect that they were so brief that they fell below any recognised standard for the keeping of clinical notes. Nor was there any evidence that the [practitioner's] clinical note keeping had led to any problems or errors in his practice.
However, the fundamental problem with the practitioner's clinical notes is not their brevity, as such, but rather the fact that the evidence shows that, in a number of cases, the practitioner did not record serious matters of past medical history that the patient subsequently referred to.

Failure to conduct adequate audiometry on patients, including using inadequate audiological equipment

In his report to the Board dated 7 September 2011, Dr Jay said that 'Dr Bernadt's audiology is totally inadequate'. The practitioner explained that, although he owns a soundproof booth, he does not use it to conduct audiometry. In his statement of evidence he said:
I consider that I can perform audiometry just as effectively at my desk, rather than using the soundproof booth, by taking background noise into account.
When asked in crossexamination to explain why it is that he does not use his soundproof booth, the practitioner gave the following answer:
Over the years I have found that I used to use the soundproof booth but my rooms are in fact, certainly in West Perth, an effective soundproof booth because I don't have any windows and it's absolutely quiet in those rooms. I mean the first point, the second point, people get a little alarmed when they get enclosed in a small room, because my booth is quite small. They get a little distracted. I found that using all my audiology at my desk in my very quiet room makes, from a practical point of view, very little difference in my audiological results. (T:126.4126.5; 19.04.12)
The practitioner gave evidence that, based on a comparison of audiograms that he performed in a soundproof booth with audiograms that he performed across his desk 20 years ago, he makes an allowance 'for about five decibels' to take into account background noise (T:127.6; 19.04.12). When questioned about his decision to allow five decibels adjustment for background noise, the practitioner said 'it's just my own subjective estimation' (T:127.7; 19.04.12). The practitioner considered that 'my audiology is just for my purposes' (T:126.6; 19.04.12). The practitioner conceded, however, that 'if you don't use a soundproof booth you are not obtaining as precise measurements as are possible' (T:129.5; 19.04.12).
Dr Jay explained that it is standard practice for ENT specialists to carry out audiometry on patients in a soundproof booth, because 'you want an accurate assessment of hearing … and you want no other noise contaminating the test, so it needs to be done in a soundproof booth' (T:23.2; 18.04.12). Dr Jay described the practitioner's approach to audiometry at his desk and making his own subjective adjustment for background noise in the following terms:
It's not something that I've heard of, quite frankly. It's certainly not something that you would deem in any way satisfactory, in terms of hearing assessment. (T:27.7; 18.04.12)
As noted earlier, Dr Jay is the President of the Australian Society of Otolaryngology Head & Neck Surgery. He was previously the Vice President and President Elect of the Society. At various times, Dr Jay was also:
•Chairman, South Australian State Committee, Royal Australasian College of surgeons;
•Chairman, South Australian branch of Australian Society of Otolaryngology Head & Neck Surgery;
•Head of Unit, Department of Otolaryngology Head and Neck Surgery, Royal Adelaide Hospital;
•Examiner, Royal Australasian College of Surgeons in Otolaryngology, Head and Neck Surgery;
•Chairman, South Australian Training Committee of Otolaryngology Head and Neck Surgery for the Royal Australasian College of Surgeons;
•Chairman of Board Otolaryngology, Head and Neck Surgery, Royal Australasian College of Surgeons and previously a member of the Board; and
•Senior examiner in otolaryngology, Head and Neck Surgery, Royal Australasian College of Surgeons.
Dr Jay has also been awarded the Royal Australasian College of Surgeons' medal for service to the College and a certificate of outstanding service by the Royal Australasian College of Surgeons.
In consequence of his extensive, relevant experience as an ENT specialist, teacher and leader of the profession, the Tribunal has no hesitation in accepting Dr Jay's evidence that the practitioner's approach to audiometry is unheard of and unsatisfactory. Ms Giles submitted that 'the Tribunal should be alarmed at [the] evidence' of the practitioner as to his practice of conducting audiometry at his desk and making a 'subjective' adjustment for background noise. The Tribunal is certainly alarmed by this evidence, given that it reflects the current and historic practice of a doctor who practises as an ENT specialist. There is no scientific basis in the evidence before us for the practitioner's 'subjective estimation' of allowing 'about five decibels' for background noise. As Dr Jay said in his responsive statement of evidence dated 21 March 2012, the practitioner's approach 'ultimately involve[s] guesswork'.
An audiogram in relation to Patient HW, which the patient's general practitioner apparently requested and had sent to the practitioner, and which was conducted by a professional audiologist, showed that the practitioner had misdiagnosed the extent of the patient's hearing loss. Whereas the practitioner had diagnosed that the patient had 'dead ear', meaning 'total loss of hearing' (T:131.6; 19.04.12), in her left ear, the professional audiologist's report showed that the patient had some hearing in that ear. While the practitioner conceded that the professional audiologist's audiometry would have been conducted in a soundproof booth, and conceded that his own audiometry is not conducted in 'ideal circumstances' (T:136.6; 19.04.12), nevertheless, the practitioner maintained that he trusted and preferred his own audiometry. This evidence raised very significant concerns, not only in relation to the practitioner's failure to conduct adequate audiometry on patients, but also about his lack of medical knowledge (see below).
Mr Ley submitted that, in the absence of any evidence as to the exact manner in which the audiogram was performed by the audiologist on HW, and in particular the steps which were taken to 'mask' her right ear, when testing her left ear, it is not possible to compare that result with the practitioner's audiology at his desk. However, a professional audiologist is likely to know how to 'mask' an ear during a hearing test.
In any case, even ignoring the audiogram in relation to HW, Dr Jay's evidence creates more than a reasonable belief on the part of the Tribunal that, because of his conduct or performance in relation to audiometry, performed at his desk and making a subjective allowance, the practitioner poses a serious risk to persons. The serious risk is, as Ms Giles submitted, that the practitioner's approach to audiometry may well lead to a misdiagnosis which 'could very easily lead to unnecessary surgery, incorrect or inadequate treatment, and failure to provide adequate rehabilitation or access to services'. As Ms Giles submitted, 'hearing loss can be catastrophic for a person's ability to function, work, engage in relationships with others and enjoy a reasonable quality of life'.
Furthermore, the practitioner conceded that his audiological/audiometry skills and knowledge are decades old. He said that he learned his audiometry skills 'in London many years ago' (T:138.8; 19.04.12) and he 'basically learned to do my own audiometry in South Africa … in 1973' (T:138.9; 19.04.12). The practitioner also conceded that he has not attended any courses of study in audiology in the last 20 years.
Finally, in his statement of evidence dated 20 January 2012, the practitioner said:
I deny Dr Jay's suggestion that my audiometer has not been recently calibrated.
However, it emerged that, contrary to this evidence, the practitioner's two audiometers were only calibrated, for the first time, in February 2012. Dr Jay gave evidence which, given his significant experience as an ENT specialist, teacher and leader of the profession, we accept, that 'audiometers need to be calibrated on an annual basis to ensure that the sound that they are emitting is the correct level and accurately reflects the patient's hearing status' and that, if an audiometer is not regularly calibrated, 'you might not be getting accurate assessments of hearing' (T:24.624.7; 18.04.12). The result of not getting an accurate assessment of hearing is:
you may miss pathology that may be apparent and patients may if they have not got an accurate assessment of their hearing, then you may make incorrect diagnoses or suggestions regarding rehabilitation for hearing impairment. (T:24.8; 18.04.12)

Although the practitioner no longer contests the immediate action decision to preclude him from conducing surgery, the Tribunal considers that the foregoing failures on the part of the practitioner, amply demonstrated by the evidence before us, mean that the practitioner poses a serious risk to persons and that suspension of his registration is necessary to protect public health. A specialist ENT consultant, who does not carry out surgery, must, for the protection of the public, in every case take and record adequate patient medical history, conduct adequate audiometry on patients, have uptodate medical knowledge about matters relevant to the specialty, and have a system in place to follow up patients.
The Tribunal has given consideration to whether, rather than the suspension of the practitioner's registration to preclude him from practising as a specialist ENT consultant, the immediate action to protect public health could involve the imposition of conditions on the practitioner's registration and, in particular, whether the two conditions proposed by the practitioner in relation to consulting practice are adequate. The Tribunal considers that, because the practitioner requires 'extensive reskilling' in order to protect public health, it is not practical to develop and impose conditions in the circumstances of this case. The two conditions proposed by the practitioner are certainly not adequate. The condition that he submit to quarterly audits of his clinical notes which he takes in the course of his consulting practice would not adequately protect public health, because the events creating the risk will already have occurred by the time of the audit and it would not address the reasons why we have found the practitioner poses a serious risk to persons. The condition that he perform audiometry in a soundproof booth is not adequate, in our view, to address the serious risk that the practitioner poses to persons even in the carrying out of audiometry, because the practitioner lacks insight that the way he has conducted audiometry for decades poses a serious risk into his patients, his practice in relation to audiometry over many years reflects a lack of uptodate medical knowledge, and his audiological/audiometry skills and knowledge are decades old.
It follows that the application for review should be dismissed and the decision of the Board to suspend the practitioner's registration under s 156 of the National Law should be affirmed.
The Board foreshadowed an application for costs under s 87(2) of the SAT Act. The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in review, including vocational review, proceedings is that normally each party should bear its own costs of the proceedings: see Stephenson and The Legal Practice Board [2007] WASAT 259 at [47] [49]. However, as the Board has indicated that it may seek an order for costs, it should be given a short opportunity to consider whether it wishes to do so and to file and serve submissions in support. The practitioner should have an opportunity to respond to any submissions and the issue of costs, if argued, should be determined entirely on the documents pursuant to s 60(2) of the SAT Act.

Orders

For these reasons, the Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision made by the respondent on 9 November 2011 to take immediate action in relation to the applicant by suspending the applicant's registration as a health practitioner pursuant to s 156 of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) is affirmed.
3.By 11 September 2012 the respondent may file and serve any application for costs and, if so, must by that date file and serve its submissions in support.
4.By 18 September 2012 the applicant may file and, if so, must serve any submissions in response in relation to costs.
5.The issue of costs, if sought by the respondent, is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).

I certify that this and the preceding [140] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT