Bhoola v Optometry Board of Australia - [2022] SASCA 20

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
BHOOLA v OPTOMETRY BOARD OF AUSTRALIA
[2022] SASCA 20
Judgment of the Court of Appeal
(The Honourable Justice Bleby, the Honourable Justice David and the Honourable Justice Blue)
18 March 2022
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - OPTICIANS AND OPTOMETRISTS - BOARDS, TRIBUNALS, ETC
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - OPTICIANS AND OPTOMETRISTS - DISCIPLINARY PROCEEDINGS
This is an application for leave to appeal against orders made by a single Justice of the Supreme Court on 11 May 2021 and 20 May 2021. On 11 May 2021, the Judge allowed an appeal by the respondent, the Optometry Board of Australia, and set aside an order by the South Australian Civil and Administrative Tribunal (the ‘Tribunal’) disqualifying the applicant, Mr Ashok Bhoola, from applying for registration as an optometrist for 12 months. In its place, the Judge disqualified Mr Bhoola from applying for registration as an optometrist for five years, commencing 5 August 2020. On 20 May 2021, the Judge ordered, that the applicant pay the respondent’s costs and disbursements of the appeal, agreed and fixed in the amount of $11,135.
The applicant seeks to set aside the orders of the appeal Judge. Essentially, the applicant seeks a restoration of the Tribunal’s sanction disqualifying the applicant from applying for registration as an optometrist for 12 months. The appeal grounds are as follows:
1.The appeal Judge erred in finding that the harm engaged by the proven offending had not been adequately considered and/or evaluated by the Tribunal in arriving at an appropriate sanction.
2.The appeal Judge erred in determining that the Tribunal gave excessive weight both to the ramifications of the sanction upon the applicant’s employment, and an absence of future risk of recidivism in arriving at an appropriate sanction.
3.The appeal Judge erred in determining that the Tribunal failed to consider the adequacy of the protection offered by the sanction by failing to have regard to the financial loss incurred by the applicant’s employer or franchisor.
4.The appeal Judge erred in determining that the sanction was inadequate in all of the circumstances.

Held, per the Court, refusing leave to appeal on Grounds 1 and 4, granting leave to appeal on Grounds 2 and 3, but dismissing the appeal:
1.In relation to Ground 1, the appeal Judge was correct in concluding that the Tribunal erred in its approach in determining sanction and in imposing a 12 month disqualification from registration. The appeal Judge was also correct in concluding that the Tribunal did not properly consider the applicant’s risk of recidivism or repetition of conduct.
2.In relation to Ground 2, the appeal Judge erred in finding that the Tribunal’s expressed ‘reluctance’ to suspend or cancel the applicant’s registration meant that it erroneously took into account the applicant’s loss of employment when imposing sanction. The appeal Judge was also in error in concluding that the Tribunal misused the character evidence.
3.In relation to Ground 3, the appeal Judge erred in finding that the Tribunal did not take into account the financial loss suffered by the employer.
4.In relation to Ground 4, the applicant has established no error in the appeal Judge’s finding that the period of disqualification imposed by the Tribunal was inadequate. Further, the appeal Judge was correct in concluding that the Tribunal's disqualification of the applicant from applying for registration as an optometrist for 12 months was inadequate.
5.On a review of all the materials and submissions, no different sanction should be imposed. The applicant’s conduct was a serious departure from the standards required of the profession. A substantial sanction was required to protect the public and maintain confidence in the profession.

Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) ss 195, 196; Supreme Court Act 1935 (SA) s 19B, referred to.
Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; Craig v Medical Board of South Australia (2001) 79 SASR 545; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Honey v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2007] VCAT 526; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; Medical Board of Australian and Singh [2017] WASAT (S) 33; Medical Board of Australia v Hadges [2018] SAHPT 6; Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47; Optometry Board of Australia v Bhoola [2020] SACAT 46; Optometry Board of Australia v Bhoola [2021] SASC 51; R v Knoote-Parke (2016) 125 SASR 13; Ryan v The Queen (2001) 206 CLR 267; Singh v Medical Board of Australia [2019] WASCA 51, considered.

BHOOLA v OPTOMETRY BOARD OF AUSTRALIA
[2022] SASCA 20
Court of Appeal - Civil Appeal: Bleby, David JJA and Blue AJA
THE COURT:

This is an application for leave to appeal against orders made by a single Justice of the Supreme Court on 11 May 2021 and 20 May 2021.
On 11 May 2021, the Judge allowed an appeal by the respondent, the Optometry Board of Australia (the ‘Board’), and set aside an order by the South Australian Civil and Administrative Tribunal (the ‘Tribunal’) disqualifying the applicant, Mr Ashok Bhoola, from applying for registration as an optometrist for 12 months. In its place, the Judge disqualified Mr Bhoola from applying for registration as an optometrist for five years, commencing 5 August 2020.
On 20 May 2021, the Judge ordered that the applicant pay the respondent’s costs and disbursements of the appeal, agreed and fixed in the amount of $11,135.
An appeal lies to this Court pursuant to s 19B of the Supreme Court Act 1935 (SA). Leave to appeal is required. This Court has the usual powers of an appellate court to affirm, vary or quash the orders made by the appeal Judge.
Background
The applicant, Mr Bhoola, and Ms McKernan, also an optometrist, were shareholders and directors of the company that operated the West Lakes Specsavers store, which was operated under an agreement with Specsavers Pty Ltd (‘Specsavers’). From the middle of 2015 onwards, Ms McKernan became aware that there was an increase in the number of glasses being returned to the store to be remade. The returned glasses were the subject of prescriptions formulated by Ms McKernan following testing. The errors in the prescriptions appeared to be the result of typing mistakes. In early January 2016, Ms McKernan became suspicious that the applicant had logged into her test results and made alterations. This led to the glasses being dispensed in accordance with altered prescriptions, rather than the prescriptions she had formulated following testing. Ms McKernan contacted Specsavers’ IT department to determine if the errors were the result of a computer glitch. She was informed that the applicant had logged into the test results that had been altered. Following further changes to her prescriptions, Ms McKernan again reported these matters to Specsavers and requested a roster change so that she did not work at the same time as the applicant. Once this change was implemented, no further errors were found in Ms McKernan’s prescriptions.
An investigation by Specsavers led to the discovery that between 4 February 2015 and 19 January 2016, the last day on which the applicant and Ms McKernan worked together, 410 prescriptions were altered by a person using the applicant’s login details. The only people working in the store on the occasions that the prescriptions were altered were the applicant and Ms McKernan.
The Tribunal proceedings
On 14 May 2020, following a trial, the Tribunal found that the applicant’s conduct amounted to professional misconduct in the practice of optometry (the ‘Professional Misconduct Decision’).[1] The Tribunal found that the applicant had made alterations to prescriptions formulated by Ms McKernan, and that these alterations were made ‘deliberately, without clinical justification and contrary to the interests of the patients, and that his actions put the welfare of patients at risk’.[2]
[1] Optometry Board of Australia v Bhoola [2020] SACAT 46.
[2] Optometry Board of Australia v Bhoola [2020] SACAT 46 at [149].
The Tribunal reconvened on 21 July 2020 to determine the penalty to be imposed upon the applicant (the ‘Sanction Decision’).[3] In determining sanction, the Tribunal found that the applicant was not a ‘fit and proper person to be registered as an optometrist’.[4]
[3] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47.
[4] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [23].
The Tribunal reasoned in the following way before imposing sanction on the applicant:[5]
[5] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [24]-[27].
Suspension or cancellation
We have considered the nature of the misconduct in this case, along with the events that have occurred since the misconduct took place. After losing his position with Specsavers, the respondent sought other work and has been employed in various positions as an optometrist on a full time basis since January 2017. It is therefore with some reluctance that we find it necessary to impose a period of suspension or disqualification, but we consider that the seriousness of the misconduct in this case does warrant such a sanction.
Honesty is fundamental to the concept of professionalism. Calculated dishonesty can be inimical to membership of a profession. This case involved a calculated course of conduct over a period of just under a year. The misconduct is serious.
We have regard to the significant number of favourable character references produced by the respondent. We are satisfied that, apart from the misconduct the subject of this case, he is of good character. We note that he has done much voluntary work.
Taking all matters into consideration, we have concluded that the respondent’s registration as an optometrist should be cancelled and he should be disqualified from registration as an optometrist for a period of 12 months from the present time. Because the respondent is presently employed as an optometrist, we will delay the cancellation and disqualification such that it will operate from the beginning of Wednesday 5 August 2020.
(citation omitted)
The Tribunal made orders pursuant to ss 195 and 196 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (the ‘Health Practitioner Regulation National Law’), that the applicant:[6]
1. be reprimanded pursuant to s 196(2) of the Health Practitioner Regulation National Law;
2.   have his registration as an optometrist cancelled from 3 August 2020;
3.   be disqualified from applying for registration as an optometrist for 12 months, commencing 5 August 2020; and
4.   pay the Board’s costs of and incidental to the proceedings.
[6]     Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [31]-[34].
Appeal to single Justice of the Supreme Court
On 11 May 2021, the Judge set aside the Tribunal’s order disqualifying the applicant from applying for registration as an optometrist for 12 months.[7] In its place, her Honour disqualified the applicant from applying for registration as an optometrist for five years, commencing 5 August 2020. Additionally, her Honour ordered the applicant pay the Board’s costs and disbursements of the appeal in the amount of $11,135.
[7] Optometry Board of Australia v Bhoola [2021] SASC 51 at [73].
The appeal Judge, finding that the four appeal grounds were established, held that the Tribunal:
1.erred in not making an assessment of the degree to which Mr Bhoola’s conduct departed from the proper standard in the profession and made no finding as to the risk of repetition of conduct or the likelihood of reoffending, and as such, the Tribunal was unable to make findings necessary to protect the public and to maintain standards in the profession, which led it to impose an inadequate sanction;[8] (Ground 1)
2.incorrectly took into account Mr Bhoola’s loss of employment as a result of disqualification in imposing sanction and erred in elevating the character evidence submitted on behalf of Mr Bhoola over other factors when considering his risk of re-offending;[9] (Ground 2)
3.erred in finding that the quantum of loss incurred by Specsavers in investigating Mr Bhoola was not relevant in determining an appropriate sanction;[10] (Ground 3) and
4.imposed an inadequate period of disqualification on Mr Bhoola.[11] (Ground 4)
[8] Optometry Board of Australia v Bhoola [2021] SASC 51 at [51]-[54].
[9] Optometry Board of Australia v Bhoola [2021] SASC 51 at [56]-[57].
[10] Optometry Board of Australia v Bhoola [2021] SASC 51 at [59]-[61].
[11] Optometry Board of South Australia v Bhoola [2021] SASC 51 at [72].
Grounds of Appeal
On 1 June 2021, the applicant filed a notice of appeal in this Court relying on four grounds. The applicant seeks to set aside the orders of the appeal Judge allowing the appeal, setting aside the Tribunal’s disqualification, disqualifying the applicant from applying for registration as an optometrist for five years, and ordering the applicant to pay the respondent’s costs of the appeal. Essentially, the applicant seeks a restoration of the Tribunal’s sanction disqualifying him from applying for registration as an optometrist for 12 months. The appeal grounds are as follows:
1.   The Learned Judge hearing the first instance appeal (Learned Judge) erred in finding that the harm engaged by the proven offending had not been adequately considered and/or evaluated by the South Australian Civil and Administrative Tribunal (Tribunal) in arriving at an appropriate sanction as illustrated by the following:
1.1.in finding that the Tribunal failed to quantify the degree of risk of recidivism when such task was attended to, to the extent achievable, by the Tribunal in the first instance;
1.2.in finding that the Tribunal failed to consider the risk of “repetition of the conduct”;
1.3.in identifying, and thus relying upon an apparent error within the argument presented by the Respondent on the appeal, as opposed to identifying error within the process of reasoning adopted by the Tribunal in opposing sanction.
2.   The Learned Judge erred in determining that the Tribunal gave excessive weight both to the ramifications of the sanction upon the Appellant’s employment, and an absence of future risk of recidivism in arriving at an appropriate sanction as illustrated by the following:
2.1.in attributing, by way of inference only, the observation that it was “with some reluctance” that the Tribunal imposed its sanction solely to a consideration of the fact of the Appellant’s return to employment, when this was but one of many considerations that may have promoted the impugned observation by the Tribunal;
2.2.in finding that it was an error for the Tribunal to have taken “… the consequences of the loss of employment into account” when determining sanction;
2.3.in finding that the risk of recidivism was not specifically addressed by the Tribunal during the process of imposing sanction;
2.4.in finding, by way of inference only, that the character evidence was relied upon by the Tribunal in the context of assessing the risk of recidivism;
2.5.in finding that the Tribunal “erred by elevating the character evidence over any of the other factors, to the extent that they did not require examination”.
3.   The Learned Judge erred in determining that the Tribunal failed to consider the adequacy of the protection offered by the sanction as illustrated by the following:
3.1.in finding that “A detailed quantification of the costs incurred by Specsavers in respect of the investigation that carried out did not influence its decision, and was not relevant to its task in determining an appropriate sanction”;
3.2.in accepting that the costs decision (as identified in 3.1) “… appeared to exclude evidence of the harm caused by the respondent’s conduct” and, further, that the Tribunal “...appeared to fail to consider that employers are members of the public who deserve protection through the registration of their professional employees.”;
3.3.whilst financial costs engaged by the conduct was of relevance, the conclusion that a detailed quantification of the costs engaged by Specsavers “Should have been taken into account, even though it was not open to SACAT to make an order for compensation in this regard” was in error.
4.   The Learned Judge erred in determining that the sanction was inadequate in all of the circumstances as illustrated by the following:
4.1.the absence of any identifiable error on the part of the Tribunal in the process of formulating and imposing sanction in the first instance; and
4.2.the failure to identify the foundation for the fivefold increase in the sanction originally imposed.
(emphasis in original)
Nature of the appeal
An appeal of this nature is by way of rehearing. However, it is an appeal against a decision involving the exercise of a discretion. Therefore, it is necessary to determine whether there is an error of the kind identified in House v King.[12] The grounds of appeal identify what have been described as both ‘process’ and ‘outcome’ errors in the approach of the appeal Judge.
[12] (1936) 55 CLR 499.
There was no challenge by the applicant before the appeal Judge, or in this Court, to the Tribunal’s finding that the applicant had engaged in ‘professional misconduct’,[13] nor the basis upon which that finding was made. Further, the applicant has not challenged the Tribunal’s determination that he was not a ‘fit and proper person’ to practice (at the time of imposing sanction).[14] The applicant denied the alleged misconduct to the Tribunal and maintained those denials before the appeal Judge and this Court. The applicant’s continued denials meant that it was inevitable that the Tribunal would order the cancellation of his registration as an optometrist.[15] The applicant does not challenge the Tribunal’s order that his registration be cancelled. It follows that the applicant’s appeal to the appeal Judge, and in turn to this Court, is concerned only with the length of the period of disqualification from registration.
[13] Optometry Board of Australia v Bhoola [2020] SACAT 46; Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [13].
[14] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [23].
[15] Honey v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2007] VCAT 526 at [43]-[45].
In that context, it is necessary to consider the purpose of fixing periods of disqualification from registration.
General principles relevant to fixing periods of disqualification
It is well established that the purpose of disciplinary proceedings is to protect the public and not to punish practitioners, in the sense in which punishment is administered in the criminal jurisdiction. This principle is explained in the often-cited case of Craig v Medical Board of South Australia (‘Craig’), where Doyle CJ (with whom Williams and Martin JJ agreed) said:[16]
The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
…
In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.
In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner’s departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.
I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for.
[16] (2001) 79 SASR 545 at [41], [46]-[48].

As explained in Craig, the protection of the public is not confined solely to protecting the patients of a practitioner; it has a wider application. It includes: protecting the public from the practitioner’s conduct by removing them from practice; deterring the particular practitioner from again engaging in misconduct; warning other members of the profession and reassuring the public that a certain type of misconduct will not be tolerated; and upholding public confidence in the profession.
Further, a practitioner’s personal circumstances and the impact or hardship that a period of disqualification will have on a practitioner found guilty of professional misconduct will be afforded less weight given the primacy to be afforded to the protection of the public. As Quinlan CJ and Pritchard JA said in Singh v Medical Board of Australia:[17]
Thirdly, as the purpose of disciplinary proceedings is the protection of the public, the impact that an appropriate penalty will have on a practitioner guilty of misconduct, and any personal hardship to the practitioner, are necessarily secondary considerations. Accordingly, while the personal circumstances of the practitioner are a relevant consideration, the weight to be afforded to personal circumstances cannot override the fundamental obligation of the disciplinary tribunal or court to provide appropriate protection of the public.
(citations omitted)
[17] [2019] WASCA 51 at [33].
As noted earlier, the applicant in this matter did not challenge the cancellation of his registration to practise before the appeal Judge or in this Court. The appeal was concerned only with the length of the period of disqualification from registration. The Tribunal and the appeal Judge were required to make an assessment as to the period of disqualification necessary for the protection of the public from the practitioner’s conduct, having regard to the extent of his departure from proper standards of practice. As explained in Chen v Health Care Complaints Commission by Basten JA (with whom Leeming JA and Payne JA agreed):[18]
The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. The suggestion that there must be a two-stage process in undertaking that function was misguided.
[18] (2017) 95 NSWLR 334 at [22].
That assessment as to the appropriate period of disqualification can involve a consideration of many factors.[19] However, as discussed earlier, it must always be borne in mind by the Tribunal or Court imposing sanction that the purpose of disciplinary proceedings is the protection of the public by making appropriate orders.
[19] See, eg, Singh v Medical Board of Australia [2019] WASCA 51.
With those principles in mind, we turn to the applicant’s complaints as to the appeal Judge’s reasoning for setting aside the Tribunal’s sanction and as to the length of the period of disqualification from registration imposed by the appeal Judge.
Grounds of appeal
Ground 1 – The Tribunal’s approach to an assessment of harm
The appeal Judge found that the Tribunal erred in not making an assessment of the degree to which the applicant’s conduct departed from the proper standard in the profession and in failing to make a finding as to the risk of repetition of the conduct.[20] Those findings led the appeal Judge to conclude there was no reasoned basis for the Tribunal’s imposition of a period of disqualification for 12 months.[21]
[20] Optometry Board of Australia v Bhoola [2021] SASC 51 at [51]-[52].
[21] Optometry Board of Australia v Bhoola [2021] SASC 51 at [54].
The applicant contends that the appeal Judge erred in her conclusion that the Tribunal did not adequately consider or evaluate the harm engaged by the applicant’s proven offending. Rather, the applicant submits that the Tribunal performed this task by carefully evaluating the harm and potential harm caused by the applicant’s conduct and by considering the applicant’s risk of recidivism. In support of this contention, the applicant relies on the Tribunal’s observations to the effect that the applicant’s conduct:
1.was both contrary to the interest of patients and ‘put the welfare of patients at risk’;[22]
2.was committed with the ‘knowledge that it would put the welfare of patients at risk’;[23]
3.‘had a significant adverse effect on the other optometrist partner’;[24]
4.‘was dishonest and done with knowledge that it would put the welfare of patients at risk’,[25] with the Tribunal observing that the amendments made to the positive refraction adjustment would have had ‘more significant effects on patients’;[26] and
5.resulted in significant costs to Specsavers in investigating the applicant.
[22] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [7].
[23] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [13].
[24] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [13].
[25] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [13], [16].
[26] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [16].
The applicant also referred to the Tribunal’s comment that it was of concern to them that the applicant ‘has not acknowledged that he was the person who performed the conduct of altering the scripts’.[27]
[27] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [21].
Further, the applicant contends that it is ‘patently incorrect’ to suggest that the Tribunal did not properly have regard to the applicant’s risk of recidivism. In support of this contention, the applicant relies on the Tribunal’s finding that the conduct amounted to ‘calculated dishonesty’ and was ‘very serious’,[28] and the Tribunal’s reference to their concern at the applicant’s failure to take responsibility for the conduct. The applicant submits that there was also other material before the Tribunal which ameliorated the applicant’s risk of recidivism, including his subsequent employment and his otherwise good character, evidenced by his voluntary work and service to the community. Accordingly, the applicant contends there was a basis for the Tribunal to extend leniency to him, notwithstanding his failure to admit the proven conduct.
[28] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [25].
Aligned with this complaint is the applicant’s contention that it was difficult for the Tribunal to make an assessment of the applicant’s risk of recidivism with any specificity, which is said to be demonstrated by what is submitted to be an inherent inconsistency in the appeal Judge’s reasoning. In the appeal Judge’s reasons, her Honour said that the Tribunal ‘made no finding as to the risk of repetition of the conduct’.[29] However, later in her reasons, the appeal Judge said, ‘the sanction to be imposed must take into consideration the fact that it is difficult, if not impossible, to make a judgment as to the risk of reoffending’.[30]
[29] Optometry Board of Australia v Bhoola [2021] SASC 51 at [52].
[30] Optometry Board of Australia v Bhoola [2021] SASC 51 at [69].
For the reasons given below, we agree with the respondent’s submission that the appeal Judge was correct in concluding that the Tribunal erred in the approach it adopted in determining sanction and in imposing a 12 month period of disqualification from registration.
The correct approach on the facts of this case was for the Tribunal to: identify the nature of the applicant’s professional departure from the standards of practice; articulate the nature and extent of the harm and risk of harm to the public and the profession arising out of the applicant’s conduct; address the extent to which there was a risk of a repetition of conduct (and therefore harm); and then, identify a sanction that addressed the particular risk posed by the applicant which allowed for the maintenance of professional standards and protection of the public.
The appeal Judge was correct in finding that the Tribunal erred in not properly assessing the degree to which the applicant’s conduct departed from the proper standards of an optometrist by failing to consider the full extent of the harm and risk of harm caused by the applicant’s conduct to the public and the profession. Whilst the Tribunal made findings that the conduct was ‘serious’, ‘calculated’ and ‘dishonest’,[31] and considered the direct effects of the altered prescriptions on patients, the Tribunal did not fully consider other aspects of harm caused by the applicant’s conduct. The Tribunal did not directly refer to the risk of injury to patients whilst using the altered prescriptions or to the harm caused by the patients’ loss of confidence in their optometrist and the profession generally. These were important aspects of the harm or potential harm caused by the applicant’s conduct.
[31] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [13], [25].
The appeal Judge was also correct in concluding that the Tribunal did not properly consider the applicant’s risk of recidivism or repetition of conduct. The applicant’s denials of his conduct were a critical factor in assessing his risk of recidivism. At the Tribunal hearing, the applicant denied on oath his conduct. The Tribunal disbelieved his evidence. The applicant continued to deny the allegations of misconduct to the appeal Judge and in this Court. The applicant has provided no explanation for his conduct or insight into his behaviour. The appeal Judge’s comment that the applicant’s denials rendered it ‘difficult, if not impossible, to make a judgment as to the risk of reoffending’ should be understood to mean that the Tribunal and the appeal Judge could have little confidence in the applicant not repeating the conduct.[32] The appeal Judge was correct in reaching that conclusion.
[32] Optometry Board of Australia v Bhoola [2021] SASC 51 at [69].
The applicant’s otherwise good character and subsequent employment could carry little weight in determining the risk of reoffending posed by the applicant, nor in determining the appropriate sanction. This was so because of the serious, calculated, and sustained nature of his conduct over a period of one year and involving over 400 acts of dishonesty. The applicant’s failure to take responsibility for the conduct or provide any explanation for it meant that his conduct could not be characterised as an aberration from his otherwise good character. Nor could his conduct be confined to a particular set of circumstances in his professional life which the Tribunal could have confidence would not recur. Whilst the Tribunal referred to its ‘concern’ as to the applicant’s denials, it did not properly consider his failure to take any responsibility for his conduct in evaluating the risk of his recidivism.
The risk presented by those matters, that the applicant would again engage in the misconduct, should have been a crucial consideration for the Tribunal in identifying an appropriate sanction that addressed the particular risk posed by the applicant and which allowed for the maintenance of professional standards. It was incumbent on the Tribunal to make a finding in the circumstances of this matter that there was a genuine risk of the applicant repeating the conduct and thus, an ongoing risk to the protection of the public. Had the Tribunal done so, the disqualification period of one year could not have been justified. The appeal Judge was correct in so finding.
As to the complaint that the Judge erred in rejecting the applicant’s submission that deficient glasses posed a lesser risk than a poorly made prosthetic, we agree with the appeal Judge that this submission was not to the point. Professional misconduct is not to be measured by reference to hypothetical worse cases (even assuming for the sake of argument that a poorly made prosthetic had worse consequences than defective spectacles).[33]
[33] See Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.
We refuse leave to appeal on this ground.
Ground 2 – Loss of employment and evidence of good character
In its reasons, under the heading ‘[s]uspension or cancellation’, the Tribunal said:[34]
We have considered the nature of the misconduct in this case, along with the events that have occurred since the misconduct took place. After losing his position with Specsavers, the respondent sought other work and has been employed in various positions as an optometrist on a fulltime basis since January 2017. It is therefore with some reluctance that we find it necessary to impose a period of suspension or disqualification, but we consider that the seriousness of the misconduct in this case does warrant such a sanction.
(emphasis added)
[34] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [24].
The appeal Judge held that the Tribunal, when imposing the sanction, erroneously took into consideration that the applicant had obtained employment as an optometrist after his conduct was discovered, and that as a consequence of the Tribunal’s orders, he would lose that employment. The appeal Judge found that the placement of the Tribunal’s words ‘with some reluctance’ immediately after referring to the applicant’s ongoing employment and in the absence of any further explanation, meant that it could be inferred that the Tribunal’s ‘reluctance was occasioned by the fact that the respondent had been working full time as an optometrist since January 2017’.[35]
[35] Optometry Board of Australia v Bhoola [2021] SASC 51 at [56].
The appeal Judge also held that the Tribunal erred in its treatment of the evidence of the applicant’s otherwise good character. The appeal Judge found that the Tribunal had not specifically dealt with the applicant’s risk of reoffending and, because it failed to do so, it could be inferred that it dealt with the character evidence in that context. The appeal Judge found that the Tribunal erred by elevating the applicant’s character evidence over other more relevant factors (such as the applicant’s denials) when assessing his risk of reoffending.
The applicant appeals against the appeal Judge’s findings. The applicant submits that the Tribunal’s observation that it was ‘with some reluctance’ that it considered it necessary to impose a period of suspension or disqualification was simply consistent with the Tribunal expressing their regret in a ‘bedside manner’ at cancelling his registration. It was also not solely attributable to the fact that the applicant had returned to employment but rather, the entirety of his personal circumstances, including his charitable works, lack of prior misconduct, and service to the community.[36]
[36] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [24].
The applicant contends that in any event, his employment and other personal circumstances were matters properly considered by the Tribunal in determining the sanction, with the qualification that the weight given to personal circumstances cannot override the need to adequately protect the public.[37]
[37] Medical Board of Australia and Singh [2017] WASAT (S) 33 at [23]-[29], adopted for example in Medical Board of Australia v Hadges [2018] SAHPT 6 at [32].
The applicant also contends that the appeal Judge erred in finding that the Tribunal incorrectly elevated the evidence of the applicant’s otherwise good character above other relevant matters in assessing his risk of recidivism. He submits that the Tribunal properly evaluated the evidence of good character in a number of contexts: as relevant to show that his character could not be assessed exclusively by reference to the conduct; to allow for some leniency to be shown to him; and, as illustrative of a capacity to rehabilitate, despite his denials of the conduct.
The applicant submits that the appeal Judge erred in finding that the Tribunal erroneously used the evidence of his good character to assess his risk of recidivism without having regard to his denials or any other factors that may undermine his prospects of rehabilitation. Further, and nonetheless, the applicant submits that the evidence of his otherwise good character was a relevant consideration properly considered by the Tribunal.
We accept the respondent’s submission that, upon the Tribunal deciding that the applicant’s conduct was a sufficiently serious departure from the standards of practice to make suspension or cancellation of his registration necessary to protect the public, the applicant’s loss of employment as an optometrist was concomitant with the imposition of the sanction. The applicant’s loss of employment is a necessary consequence of a decision that cancellation is to be imposed. For that reason, the applicant’s period of employment since the conduct is of limited relevance to sanction.
However, it does not follow that the Tribunal’s expressed ‘reluctance’ to suspend or cancel the applicant’s registration meant that it erroneously took into account the applicant’s loss of employment when imposing sanction. The Tribunal’s use of language is consistent with the Tribunal employing a ‘bedside manner’ when imposing a sanction on a person who is otherwise of good character. It is a turn of phrase consistent with the Tribunal delivering a sanction, which will undoubtedly cause the applicant distress, in a tactful manner. It is also noteworthy that the Tribunal expressed ‘some reluctance’ in imposing a period of suspension or disqualification at a point in the reasons that was removed from the indication of the length of the period of disqualification from registration.
As to the Tribunal’s subsequent references to the applicant’s otherwise good character, as discussed earlier, it is well-established that a practitioner’s personal circumstances, including any hardship occasioned to the practitioner as a consequence of disqualification, is a relevant consideration for a Tribunal or Court in imposing sanction. However, the primary consideration is the protection of the public. A practitioner’s personal circumstances may in some cases provide an explanation for the conduct or instil some confidence in the Tribunal or Court that there is unlikely to be a repetition of the conduct.
The proper use of good character evidence depends on the facts and circumstances of each case.[38] In this matter, the evidence of the applicant’s otherwise good character was of little weight in determining the period of disqualification. It could not be used to demonstrate that the applicant’s conduct was an aberration from his true character given his ongoing denials of the conduct. The applicant’s good character references were not accompanied by admissions, or by evidence and/or submissions that explained why the conduct occurred. Therefore, it was not possible to submit with any particularity or force that his conduct was otherwise uncharacteristic or that he showed genuine remorse.
[38] R v Knoote-Parke (2016) 125 SASR 13 at [75] per Doyle J (with whom Sulan J and Blue J agreed). See also, Ryan v The Queen (2001) 206 CLR 267.
The applicant’s conduct was characterised by his calculated and repeated dishonesty. The applicant denied the allegations of misconduct on oath to the Tribunal and was disbelieved. It could not be said that the Tribunal could have any real confidence in his rehabilitation. It was of limited value to the Tribunal in determining sanction. The applicant’s otherwise good character did not explain his conduct; it did not provide a basis for a submission that his conduct was an aberration (particularly in light of the sustained, deliberate and calculated nature of the conduct) and it could not provide the Tribunal with any real confidence in his rehabilitation in the face of his denials on oath.

However, the Tribunal’s references to the applicant’s otherwise good character did not support the appeal Judge’s conclusion that the Tribunal had treated the character evidence in reduction of his risk of recidivism. The Tribunal, in setting out features of the applicant’s otherwise good character, was simply referring to matters which were to his credit and of relevance, albeit limited, to the imposition of sanction. There was nothing in the Tribunal’s reasons to support a finding that the evidence of the applicant’s good character was elevated to in some way ameliorate his risk of reoffending. As discussed earlier in relation to Ground 1, the Tribunal in fact failed to make any finding as to the applicant’s risk of recidivism. However, it is another matter to say that the Tribunal elevated the evidence of the applicant’s otherwise good character to incorrectly assess his risk of repeating the conduct.
The appeal Judge was in error in concluding that the Tribunal misused the character evidence.
We grant leave to appeal on this ground.
Ground 3 – Employer’s losses and character evidence
The Tribunal said:[39]
We also received an affidavit of Mr Ivey in which he deposed to the costs incurred by Specsavers in the investigation into the conduct of the respondent. Apart from one payment to a consultant optometrist, the costs are listed as hourly rates charged in respect of employees. The respondent objected to the admission of this affidavit. There is no claim for these costs in these proceedings, and as far as we are aware, we would have no power to order payment of them. It is clear from the evidence received at the hearing that the time spent by employees of Specsavers would have been significant.
We find that the quantification of the cost of investigations to be information that does not influence our decision that we now make. We find that the affidavit should be admitted, and we do admit it into evidence, but the information does not influence our decision. We are concerned with the protection of the public and maintaining confidence of the public in the supervisory scheme under the National Law. A detailed quantification of losses has little relevance to that.
[39] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [19]-[20].
The appeal Judge found that the Tribunal erred in finding that ‘a detailed quantification of the costs incurred by Specsavers in respect of the investigation it carried out did not influence its decision, and was not relevant to its task in determining an appropriate sanction’.[40] The appeal Judge found that in adopting this approach, the Tribunal appeared to exclude evidence of the harm caused by the applicant’s conduct to Specsavers and failed to consider ‘that employers are members of the public who deserve protection through registration of their professional employees’.[41]
[40] Optometry Board of Australia v Bhoola [2021] SASC 51 at [59].
[41] Optometry Board of Australia v Bhoola [2021] SASC 51 at [60].
The applicant contends that the appeal Judge erred in finding that the Tribunal did not have regard to the financial losses incurred by Specsavers and in finding that the Tribunal excluded relevant evidence of the harm caused by the applicant’s conduct to Specsavers in its reasoning.
The applicant submits that in its reasons, the Tribunal had earlier referred to the costs incurred by the applicant’s employer when it said that it was ‘clear from the evidence received at the hearing that the time spent by employees of Specsavers would have been significant’. [42]
[42] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [19].
Further, the applicant relies on the Tribunal having also referred in its reasons to the following matters:
1.the classification of the impugned conduct;[43]
2.the impact upon the applicant’s optometrist partner;[44] and
3.the importance of the impact of general deterrence.[45]
[43] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [13].
[44] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [13].
[45] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [10].
The applicant contends that the Tribunal’s finding that the ‘quantification of the cost of investigations [is] information that does not influence our decision’[46] was made in the context of, and by reference to, the absence of any claim by Specsavers for the costs of the investigation and the Tribunal not having the power to award those costs. The applicant submits the Tribunal was correct in considering that a detailed quantification of Specsavers’ losses was of little relevance (but not of no relevance) to the imposition of sanction.
[46] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [20].
By contrast, the respondent contends that the Tribunal did not have regard to the costs incurred by Specsavers because it expressly said that the quantification of the costs of the investigation ‘does not influence our decision’. That is, it did not influence the decision as to the sanction to be imposed. Further, the reference by the Tribunal to the quantification of costs having ‘little relevance’ was a rationalisation for why the evidence was not taken into account, rather than an acknowledgement that the evidence had been considered and given little weight.[47]
[47] Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47 at [20].
The evidence of the financial loss incurred by Specsavers was plainly relevant to the sanction to be imposed. The investigation of the applicant’s conduct by Specsavers incurred a significant cost in the order of $50,000. An employer or franchisor stands to be adversely affected by an employee’s professional misconduct, both by the financial cost of an investigation of misconduct and the damage to the reputation of the employer or franchisor. An employer or franchisor is a necessary component of the public who may require protection from an unfit practitioner. The Tribunal was required to consider the evidence of the employer or franchisor’s costs in properly determining a sanction which provided protection to the public, which included the applicant’s employer or franchisor.
There is ambiguity in the Tribunal’s reasons as to whether they wholly excluded from their consideration the financial loss incurred by Specsavers, or alternatively, whether they excluded only the detailed quantification of that loss whilst still having regard to the fact that the applicant’s conduct resulted in financial loss to Specsavers.
We are satisfied that the Tribunal did have regard to the costs incurred by Specsavers in investigating the applicant’s conduct. The Tribunal admitted into evidence the affidavit deposing to the detailed quantification of costs incurred by Specsavers. Further, the Tribunal expressly said that it was of relevance. In saying that the information ‘does not influence our decision’, the Tribunal was pointing to the fact that the affidavit in relation to the specific quantification of costs (as opposed to the fact of substantial financial loss incurred by Specsavers) was of little relevance in the absence of any power to award costs. The Tribunal was making the point that it did not need to descend into a detailed analysis of the precise quantification of the costs in circumstances where it could not award costs, but the financial loss suffered by Specsavers was still a relevant consideration. Further, the Tribunal had earlier noted that the time spent by Specsavers on the investigation would have been significant. Accordingly, we are satisfied that the appeal Judge erred in finding that the Tribunal did not take into account the financial loss suffered by Specsavers and excluded from their consideration this aspect of the harm caused by the applicant’s conduct.
We grant leave to appeal on this ground.
Ground 4 – Inadequate sanction
The applicant contends that the appeal Judge erred in finding that the Tribunal’s sanction was manifestly inadequate. The applicant also submits that the appeal Judge imposed a sanction, in lieu of the sanction imposed by the Tribunal, which was unreasonable and plainly unjust and demonstrated an error of the final category identified in House v The King.[48]
[48] (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.
The applicant has established no error in the appeal Judge’s finding that the period of disqualification imposed by the Tribunal was inadequate. Nor has the applicant established that the imposition of a period of disqualification for five years was unreasonable or plainly unjust.
We have reached that conclusion for the following reasons. The applicant’s conduct was particularly serious. The conduct fell significantly below the standard expected within the profession. His conduct in falsifying patient records was deliberate, prolonged and involved separate acts of dishonesty on more than 400 occasions. His dishonesty was a significant matter relevant to the assessment of the need for protection of the public.
The applicant’s conduct caused significant harm or risk of harm to the public. An alteration of a patient’s records may have an adverse impact on a patient’s health at the time of the alteration or in the future. The conduct also targeted his fellow optometrist who suffered from significant embarrassment and a loss of confidence. It also caused significant expense to Specsavers, both in respect of the cost of the glasses which had to be remade and in terms of the cost of the investigation it undertook. The sanction needed to acknowledge the risk of harm to others. The conduct required a sanction which would deter the applicant, as well as other practitioners, from committing similar conduct. The sanction also needed to instil in the public confidence that the profession would not tolerate such behaviour.
As to the applicant’s risk of recidivism and prospects of rehabilitation, the applicant continued to deny the conduct. He had not taken responsibility for the conduct and there was no explanation for it, nor insight into it. In those circumstances, it was difficult for the appeal Judge to have any confidence that there would not be repetition of the conduct by the applicant. Whilst there was evidence of the applicant’s otherwise good character and subsequent employment where there was no suggestion that he had not behaved other than appropriately, there was still a considerable risk of recidivism in the face of the applicant’s denials and failure to take responsibility for his conduct.
In light of the serious nature of the applicant’s conduct, which was far below the standard required in the profession, and the risk that the applicant would repeat such conduct, a substantial sanction was required to protect the public and maintain confidence in the profession. The appeal Judge was correct in concluding that the Tribunal’s disqualification of the applicant from applying for registration as an optometrist for 12 months was inadequate. The sanction imposed in its place, that the applicant be disqualified from applying for registration as an optometrist for five years was a significant one, but for the reasons we have outlined, it was necessary to protect the public and maintain confidence in the profession and was appropriate.
We refuse leave to appeal on Ground 4.
Reconsideration
In this matter, the errors by the appeal Judge concern findings that the Tribunal erroneously took into account the applicant’s loss of employment (Ground 2) and failed to consider the financial loss suffered by the applicant’s employer (Ground 3). They are errors relevant to the appeal Judge’s conclusion that the sanction imposed by Tribunal was inadequate. We have already found that notwithstanding those errors, the appeal Judge was correct in finding that the sanction imposed by the Tribunal was inadequate and it was necessary for the appeal Judge to exercise the discretion afresh (Ground 4).
The errors the subject of Grounds 2 and 3 do not infect the appeal Judge’s approach to the imposition of sanction; they do not undermine or have any bearing on the correctness of the appeal Judge’s approach to imposing sanction.
In any event, on a review of all the materials and submissions, we would not impose a different sanction than that imposed by the appeal Judge.[49] For the reasons set out earlier, the applicant’s conduct was a serious departure from the standards required of the profession and a significant sanction was required to protect the public and maintain confidence in the profession. Accordingly, it follows that the appeal must be dismissed.
[49] Kentwell v The Queen (2014) 252 CLR 601 at [43] per French CJ, Hayne, Bell and Keane JJ.
Orders
We refuse leave to appeal on Grounds 1 and 4.
We grant leave to appeal on Grounds 2 and 3 but dismiss the appeal.