CHIROPRACTIC BOARD OF AUSTRALIA and AB - [2024] WASAT 115

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW APPLICATION ACT 2024 (WA)
CITATION:   CHIROPRACTIC BOARD OF AUSTRALIA and AB [2024] WASAT 115
MEMBER:   JUDGE F VERNON, DEPUTY PRESIDENT
MR M BENTER, MEMBER
DR J RIKSMAN, SESSIONAL MEMBER

HEARD:   16 JULY 2024
DELIVERED          :   10 OCTOBER 2024
FILE NO/S:   VR 4 of 2024
BETWEEN:   CHIROPRACTIC BOARD OF AUSTRALIA
Applicant
AND
AB
Respondent

Catchwords:

Vocational regulation - Chiropractor - Application to dismiss - Abuse of process - Lack of public interest in proceedings - Delay - Non-publication order - Harm to mental health

Legislation:

Health Practitioner National Law Act 2009 (Qld)
Health Practitioner National Law and Other Legislation Amendment Act 2022 (Qld)

Health Practitioner Regulation National Law (Western Australia), s 5, s 5(b)(ii), s 55(1)(a), s 139A(2), s 139A(3), s 156(1)(a), s 178, s 178(2)(b), s 193(1)(a), s 193A(1), s 193A(2), s 193A(2)(d), 193A(2)(e), s 196(1)(b), s 196(1)(b)(iv), s 196(2)(e), s 196(4)(a), s 196(4)(b)(i), s 199(1)(a), Pt 8

Health Practitioner Regulation National Law Act (WA) Act 2010 (WA), s 4
Health Practitioner Regulation National Law Application Act 2024 (WA), s 5(2), s 19, s 6(2)(b)
State Administrative Tribunal Act 2004 (WA), s 46(1), s 47(1)(c), s 47(2), s 61(4), s 61(4)(d), s 62, s 62(1)(c), s 62(3), s 64(4), s 64(4)(d)

Result:

Application to dismiss proceedings as an abuse of process dismissed
Application for a non-publication order dismissed

Category: B

Representation:

Counsel:

Applicant	:	R Young SC and M Mony de Kerloy
Respondent	:	J McKenzie and K La

Solicitors:

Applicant	:	Mony de Kerloy
Respondent	:	Russell Kennedy

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

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Chang v Legal Profession Complaints Committee [No 2] (2000) 56 WAR 263
Connellan v Murphy [2017] VSCA 116
Davis v Medical Board of the Australian Capital Territory (1994) 52 FCR 279
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
Health Care Complaints Commission v Do [2014] NSWCA 307
Herron v McGregor (1986) 6 NSWLR 246
Jago v District Court of New South Wales (1989) 168 CLR 23, 29 - 31
Medical Board of Australia and Ogundipe [2019] WASAT 32
Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
Moubarak by his tutor Coorey v Holt (2019) NSWLR 218
Nursing and Midwifery Board and A Practitioner [2019] WASAT 148
Pharmacy Board of Australia and Hamilton [2018] WASAT 95
Physiotherapists Board of Australia and Joyce [2021] VR 101
Police v Sherlock [2009] SASC 64
Singh v Medical Board of Australia [2019] WASCA 51
Tan and Medical Board of Australia [2022] WASAT 57 (S)
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
Woollard v The Medical Board of Western Australia [2017] WASCA 64
XG v Medical Board of Australia [2011] VSC 638

Note: After these reasons were delivered the Respondent made a further application for a non-publication order supported by additional materials. Following that application:
1.On 18 November 2024 the Tribunal ordered as follows.
Until further determination of the Respondent's application for an order pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA) for a non‑publication order, the name and any information which would identify the Respondent is not to be published and the decision in [2024] WASAT 115 is not to be published.
2.On 3 December 2024 Senior Member Le Miere ordered (in addition to orders finalising the proceedings):
5.Subject to orders 6, 7 and 8 pursuant to s 62(3) and s 61(4)(d) and (h) of the State Administrative Tribunal Act 2004 (WA), the name and any information that might enable the respondent to be identified in connection with these proceedings is not to be published, and the respondent is to be referred to as "AB".
6.This non-publication order does not prevent the applicant or the respondent from disclosing the respondent's name together with these orders and/or Annexure A to:
(a) other regulatory bodies or organisations;
(b) the Australian Health Practitioner Regulation Agency (Ahpra);
(c)the respondent's legal representative, financial adviser or treating professional; and
(d) as required by law.

7.This non-publication order does not prevent the applicant from disclosing to the person known as "Patient A" the outcome of these proceedings together with notice of the non-publication order.
8.The decision of the Tribunal delivered in this proceeding on 10 October 2024:
(a) is to be published as Chiropractic Board of Australia v AB [2024] WASAT 115;
(b) is to be edited to refer to the respondent as "AB"; and
(c) is to be edited to include a warning that any information that might enable the respondent to be identified in connection with these proceedings is not to be published or republished.

3.On 5 December 2024 this Tribunal ordered that:
1.The reasons for decision in [2024] WASAT 115 delivered 10 October 2024 (Reasons) are to be published after redaction of the Respondent’s name in paragraph 1 of the Reasons and after replacing the name of the Respondent in the title of the Reasons and the citation with the initials "AB".

Warning: any information that might enable the respondent to be identified in connection with these proceedings is not to be published or republished

REASONS FOR DECISION OF THE TRIBUNAL:

Summary

By an application dated 23 January 2024, the Chiropractic Board of Australia (Board) referred a matter to the Tribunal under s 193(1)(a) of the Health Practitioner Regulation National Law (National Law) alleging that [name redacted] (the Respondent) had behaved in a way that constituted professional misconduct.[1]
[1] At the time of the referral the National Law was given effect in WA by s 4 of the Health Practitioner Regulation National Law (WA) Act 2010 (the 2010 Act). The 2010 Act was repealed on 15 May 2024 and replaced by the Health Practitioner Regulation National Law Application Act 2024 (WA) (Application Act). By s 5(2) of the Application Act, the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner National Law Act 2009 (Qld) as amended by the Health Practitioner National Law and Other Legislation Amendment Act 2022 (Qld) applies as the law in Western Australia (National Law). The applicable version is as at 1 July 2024 by virtue of the operation of s 6(2)(b) of the Application Act. By s 19 of the Application Act the Tribunal is declared to be the responsible tribunal for Western Australia for the purposes of the National Law. The National Law operates as a continuation of the National Law under the 2010 Act; s 42 of the Application Act.
The Board alleges that, in 2013, the Respondent inappropriately touched the breasts of a patient (the complainant), and that the Respondent's clinical record keeping was inadequate.
The Respondent has applied to dismiss the proceedings as an abuse of process under s 47(1)(c) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Respondent also seeks a non‑publication order under s 62(1)(c) and s 62(3) of the SAT Act to suppress the Respondent's identity.
We have decided not to dismiss the proceedings as an abuse of process. We have also decided to dismiss the Respondent's application for a nonpublication order. Our reasons are set out below, dealing first with the application to dismiss the proceedings as an abuse of process, and then with the application for a non-publication order.

Application to dismiss the proceedings as an abuse of process

Respondent's submissions

The Respondent submits that this is an exceptional case where the proceedings may be dismissed as an abuse of process because the ultimate hearing will be so unfair, or the maintenance of the action so unfair or unjustifiably oppressive, as to warrant dismissal.
The Respondent submits that there is no public interest in the matter being determined and that its pursuit is inconsistent with the objects and purposes of the National Law.
The Respondent says that there is no public interest in the matter proceeding because the Respondent was no longer registered as a chiropractor and had not practised since September 2020. As a result of previous disciplinary proceedings, the Respondent's registration was cancelled, and he is disqualified from applying for re-registration until September 2025. The Respondent says that he does not intend to practise as a chiropractor again and will not seek re-registration at any time in the future. He says that he had proffered undertakings to the Board to that effect.
In addition, the Respondent says that there is medical evidence which supports a finding that he is now physically unfit to practise as a chiropractor in any event, as he has severe facet joint arthritis of the lumbar spine. He says that he would consent to the Tribunal making orders permanently disqualifying him from practising as a chiropractor on that basis.
The Respondent submits that the purpose for disciplinary proceedings is to protect the public interest by ensuring unfit or unsuitable people do not practice, or by making orders which will secure the maintenance of proper professional standards. The Respondent accepted that general and personal deterrence play a role in maintaining professional standards. However, the Respondent submits that, in the circumstances referred to, nothing further can be achieved in the public interest by the proceedings. As a result, the Respondent submits the pursuit of the proceedings against him is unjustifiably oppressive and should be dismissed as an abuse of process.
Secondary to this submission, the Respondent says that he will not be able to obtain a fair hearing because of the delay in the complainant reporting her complaint against the Respondent and in the Board investigating the complaint and commencing the proceedings.
The Respondent says that the conduct complained of is alleged to have occurred 11 years ago, and he received no notice of the allegations until September 2020. He says that there has been further unexplained delay by the Board in investigating and prosecuting the complaint between September 2020 and January 2024. The Respondent says that he has been prejudiced by the delay.
The Respondent says that he has no recollection of the complainant, the nature of the condition for which she sought treatment or any consultation with her. He has no notes of the consultation at which it is alleged the conduct occurred. The Respondent says that, as a result, he cannot give any useful evidence to the Tribunal about what happened, other than a bare denial the conduct occurred, and he cannot put positive matters to the complainant in cross-examination.

Board's submissions

The Board submits that the protective purposes of the National Law are to be accorded great weight when determining an application to dismiss proceedings as an abuse of process. The Board says that its discretion to decide whether there was any public interest in pursuing the complaint should not be lightly interfered with.
The Board accepted that it is possible, under s 178(2)(b) of the National Law, for the Board to accept an undertaking of the kind proffered by the Respondent. However, the Board had not accepted the undertaking proffered before the matter was referred to the Tribunal, which it says was inadequate. The Board submits that it does not have the power to accept an undertaking once the matter had been referred to the Tribunal.
The Board says that there is a strong public interest in the Tribunal discharging the protective function of adjudicating allegations of improper conduct by health practitioners. The Board submits that the public interest is served not only by protecting the public from practitioners who have engaged in such misconduct and specifically deterring them from future misconduct but also by deterring other practitioners who might be tempted to engage in similar conduct.
The Board says that, if the allegations are proved, the proceedings may result in further protection of the public, if the period in which the Respondent is disqualified from applying for re-registration is increased. In addition, the Board says that the recording of findings against the Respondent may be relevant if the Respondent seeks to be registered with any other professional body.
In any event, the Board submits that there is a public interest in the public denunciation by the Tribunal of misconduct of the type alleged by the Board, if the allegation is proved, which will deter other practitioners from engaging in similar misconduct and ensure public confidence in the profession and its regulation.
The Board submits that proceedings could be dismissed for undue delay only in exceptional cases, as a last resort to protect the administration of justice. The Board submits that even a very long period of unexplained and unreasonable delay would not be sufficient to warrant the order. The Board says that in the absence of bad faith, or deliberate wrongdoing or impropriety on the part of the Board, it was necessary for the Respondent to demonstrate the delay had caused him serious and irremediable prejudice such that the hearing would necessarily be unfair, or the continuation of the proceedings so unfairly oppressive, that it was necessary for the Tribunal to intervene to prevent injustice.
The Board accepts that it would have been desirable for the investigation to have been completed sooner. However, it submits that there had been no unexplained or exceptional delay by the Board, the relevant period being between the Board receiving the complaint and commencing the proceedings.
The Board also submits that there was no exceptional delay between the events complained of and the complaint being made, such delay being not uncommon where allegations of sexual impropriety are concerned, and that there is no limitation period specified in the National Law within which allegations may be brought by complainants against practitioners.
The Board submits that there was no suggestion that the Respondent had lost or destroyed his clinical records, and it was commonplace for practitioners in disciplinary proceedings to have no recollection of a particular patient or consultation. The Board submits that, in such circumstances, a practitioner may rely on their notes or their usual practice.
The Board submits that a number of principles operate to ensure the Respondent will receive a fair hearing, such as the presumption of innocence, the requirement that the Board prove its case, that it do so in accordance with the Briginshaw principle (which provides that reasonable satisfaction of a fact must take into account the seriousness of an allegation, the inherent unlikelihood of the alleged event and the gravity of the consequences flowing from a particular finding), and the necessity to take into account the forensic disadvantage the Respondent faces as a result of the delay between the alleged events and the Respondent becoming aware of the allegations.
The Board also submits that the courts have developed techniques addressing problems in civil trials associated with the recollection of events, including that a court is not bound to accept uncontradicted evidence for reasons including its inherent implausibility and objective unlikelihood in light of other evidence.
With respect to the evidence of the Respondent's physical incapacity to work as a chiropractor, the Board submits that it was not open to the Tribunal in these proceedings to make a finding that the Respondent was physically unfit to practise, and to order that he should be disqualified on that basis, as that was not the basis on which the Board had referred the matter to the Tribunal. The Board also says that the medical evidence relied on does not support a finding that the Respondent was physically unfit to practise.

Issues arising in the application to dismiss the proceedings as an abuse

In light of the submissions, the issues to be determined are as follows:
(a)does the Tribunal have the power in these proceedings to make an order permanently disqualifying the Respondent from registration as a chiropractor based on a physical incapacity;
(b)what is the effect of the undertakings given by the Respondent;
(c)is there a public interest in pursuing the proceedings against the Respondent, taking into account the answers to issues (a) and (b);
(d)in light of the answer to issue (c), should the proceedings be dismissed as an abuse of process on the basis that they are unjustifiably oppressive to the Respondent;
(e)with respect to delay:
(i)has there been any unexplained delay by the Board in pursuing the investigation of the complaint;
(ii)has any delay been extraordinary or extreme;
(iii)what are the consequences of any delay either in investigating the complaint or generally on the Respondent's ability to defend the proceedings; and
(f)in light of the answers to issue (e), should the proceedings against the Respondent be dismissed as an abuse of process?

Legislative framework and principles

Section 47(1)(c) and s 47(2) of the SAT Act allow the Tribunal to dismiss or strike out any proceeding that the Tribunal believes to be an abuse of process.
The Respondent bears the heavy onus of proving that the proceedings should be dismissed as an abuse of process.[2]
[2] Woollard v The Medical Board of Western Australia [2017] WASCA 64 [136] and [150] Newnes and Murphy JJA.
The power to dismiss conferred by the SAT Act is akin to the inherent power of courts to permanently stay proceedings which are an abuse of process. A decision to grant a permanent stay of proceedings may only be granted in extreme or exceptional circumstances.[3] This reflects the very strong public interest considerations against granting stays.[4]
[3] Woollard v Medical Board [2017] WASCA 64 [136] and [150] Newnes and Murphy JJA.
[4] XG v Medical Board of Australia [2011] VSC 638 [12] Kyrou J.
In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (GLJ), in relation to proceedings in a court, it was said that:
[The] grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice, that refusal itself will work injustice and bring the administration of justice into disrepute.[5]
[5] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 [3] Kiefel GJ and Gageler and Jagot JJ.
In Williams v Spautz, Mason CJ, Dawson, Toohey and McHugh JJ said, (again in relation to the stay of court proceedings):
It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on the application for a stay, unless once again the interests of justice demand it.[6]
[6] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at [18].

A proceeding may be dismissed as an abuse of process when the proceedings or their continuation would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute.[7] It is not sufficient to prove only that there is a risk of such an outcome eventuating.[8]
[7] Woollard v Medical Board [136] Newnes and Murphy JJA.
[8] Woollard v Medical Board [136] and [145] Newnes and Murphy JJA.
The concept of abuse of process extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging', or 'productive of serious and unjustified trouble and harassment'.[9]
[9] Woollard v Medical Board [144] Newnes and Murphy JJA.
In considering whether proceedings constitute an abuse of process, it is necessary to consider the purpose of the proceedings. It is uncontroversial that the purpose of disciplinary proceedings is not to punish a practitioner, but rather to protect the public by making orders which will prevent a person who is unfit to practise from practising, or by making orders that secure the maintenance of proper professional standards.[10]
[10] Singh v Medical Board of Australia [2019] WASCA 51 at [30].
In Walton v Gardiner, Mason CJ, Deane and Dawson JJ said:
As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. The question whether disciplinary proceedings in the Tribunal should be stayed by the Supreme Court on abuse of process grounds should be determined by reference to a weighing process similar to the kind appropriate in the case of criminal proceedings but adapted to take account of the differences between the two kinds of proceedings. In particular in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners.[11]
(citations omitted)
[11] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 395 - 396.
As was said in Tan and Medical Board of Australia, the protection of the public may involve:[12]
… the immediate need to protect the public from the practitioner's conduct, the need to bring home to the practitioner the seriousness of their conduct and the need to deter the practitioner from further breaches. An order of that kind may be regarded as akin to personal deterrence. The protection of the public may also require an order which emphasises to other members of the profession, or which reassures the public, that a certain type of conduct is not acceptable professional conduct.
[12] Tan and Medical Board of Australia [2022] WASAT 57 (S) at [15].
With respect to the importance of denouncing professional misconduct, it was said in Health Care Complaints Commission v Do:
Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practice.[13]
[13] Health Care Complaints Commission v Do [2014] NSWCA 307 [35].
In Police v Sherlock it was said in relation to criminal proceedings that it is not the court's function to interfere with the independent discretion of State officials to decide whether someone should be prosecuted, and that the discretion to do so should only be exercised to prevent injustice.[14]
[14] Police v Sherlock [2009] SASC 64 [66].
With respect to the relevance of the public interest in determining whether to stay an action as an abuse of process, in Jago v District Court of New South Wales (Jago) Mason CJ said:
In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes proceeding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed.
For the reasons, I have given I agree with the approach of Richardson J as I have explained it. Bearing in mind his Honour's relatively broad view of what may amount to an 'abuse of process', I agree also with his explanation of the rationale for the exercise of the power to stay a prosecution. His Honour stated:
The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor…that the Court processes are being employed for ulterior purposes or in such a way …as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court processes by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the Court.
The continuation of processes which will culminate in an unfair trial can be seen as a 'misuse of the Court process' which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.[15]
(citations omitted)
[15] Jago v District Court of New South Wales (1989) 168 CLR 23, 29 - 31 Mason CJ.
An application to dismiss may be based on delay in bringing proceedings. However, it is usually the effect of delay on the possibility of a fair trial that is relevant, rather than the mere fact of the passing of time.[16] Unexplained delay, on its own, would not normally lead to a permanent stay unless it would result in an unfair hearing, and the granting of a permanent stay on the basis of delay alone 'will be very rare'.[17]
[16] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 at [42] and [43] Kiefel CJ and Gageler and Jagot JJ.
[17] Jago v District Court of New South Wales (1989) 168 CLR 23, 33 - 34 Mason CJ.
In Medical Board of Australia v Woollard (Woollard) it was said that 'the starting point is whether delay is so prolonged that it is unreasonable in the context of the particular case', taking into account the length of the delay and the reasons for that delay, including when the relevant authority first became aware of the alleged conduct, whether the matter is complex or simple and 'what is reasonable in the context of limited institutional resources'.[18]
[18] Woollard v Medical Board [149] Newnes and Murphy JJA.
It was also said in Woollard that, in determining the effects of delay, account could be taken of the period between the alleged conduct occurring and the Board being notified of it.[19]
[19] Woollard v Medical Board [176] Newnes and Murphy JJA.
In Herron v McGregor, McHugh JA said:
If the prejudice or unfairness is so oppressive as to amount to an abuse of process, the public interest requires that the proceedings be stayed. There is no public interest in hearing a complaint and making a finding of professional misconduct against a doctor where the delay of the complainant has caused the defendant substantial prejudice and unfairness amounting to an abuse of process. Members of the public could have no confidence whatever in a finding of professional misconduct made in those circumstances.[20]
[20] Herron v McGregor (1986) 6 NSWLR 246 at 267.
One matter relevant to a consideration of whether a trial is unfair is the fact that a plaintiff must prove its case and that the degree of satisfaction necessary to find a matter proved on the balance of probabilities may vary according to the gravity of the fact to be proved,[21] in accordance with the Briginshaw principle. Courts are required to remind themselves that human memory is fallible, and that fallibility usually increases with the passage of time.[22] In addition, in GLJ it was said:
A court is not bound to accept uncontradicted evidence. Uncontradicted evidence may not be accepted for any number of reasons including its inherent implausibility, its objective unlikelihood given other evidence, or the trier of fact simply not reaching the state of "actual persuasion" which is required before a fact may be found.[23]
[21] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 [57] Kiefel CJ and Gageler and Jagot JJ.
[22] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 at [59] Kiefel CJ and Gageler and Jagot JJ; see also [167] Gleeson J.
[23] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 at [60] Kiefel CJ and Gageler and Jagot JJ.
Consistently with the authorities referred to above, in XG v Medical Board of Australia, Kyrou J summarised the considerations involved in determining whether the continuation of a hearing would constitute an abuse of process as follows:
(a)the need to maintain public confidence in the system for the investigation of complaints against medical practitioners;
(b)the public interest in the proper and impartial investigation of complaints against medical practitioners and in the exposure of malpractice by those licensed by the State to carry out invasive and intimate examinations for medical reasons;
(c)the protective character of the disciplinary proceeding;
(d)the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners;
(e)the seriousness of the complaint against the medical practitioner;
(f)the requirements of fairness to the medical practitioner;
(g)the length of any delay in the making of a complaint against the medical practitioner or in its investigation and the reasons for the delay;
(h)the prejudice to the medical practitioner from a continuation of the disciplinary proceedings, having regard to matters such as the age and lack of detailed particulars of the allegations to be investigated and the medical practitioner's lack of records that may have assisted his or her defence of the allegations; and
(i)the capacity of the disciplinary tribunal to give directions or to mould its procedures so as to ameliorate any prejudice to the medical practitioner.[24]

Factual findings

[24] XG v Medical Board of Australia [2011] VSC 638 at 10.

The facts set out at [46] to [85] below derive largely from the affidavit dated 20 May 2024 of Alexandra Lioudvigova, a solicitor employed by the Board's solicitors, or the documents attached to that affidavit. These facts are not in dispute and we make findings accordingly.
The Respondent was registered as a chiropractor in 2004.

2016 complaints

On 16 December 2016, in response to the notification of complaints about the Respondent's conduct from a number of his patients (the 2016 complaints), the Board took immediate action under s 156(1)(a) of the National Law to impose chaperone conditions on the Respondent's practice.
The Board referred the 2016 complaints to the Tribunal. That matter was heard in August 2019.
In July 2020, the Tribunal made findings against the Respondent in relation to the 2016 complaints. In summary, the Tribunal found that the Respondent had inappropriately touched five patients, KM, JL, LN, MT, and MS, which touching was of a sexual nature and without consent or clinical justification. The conduct in relation to KM occurred 12 months before the conduct in relation to the other patients. The conduct in relation to the other patients occurred a few days apart, with the conduct concerning JL and MS occurring on one day and the conduct concerning LN and MT on another.
The Tribunal also found that the Respondent's treatment of the five patients and the preparation and content of his notes constituted unsatisfactory professional conduct in that his knowledge, skill, judgment, or care was below the standard expected of a chiropractor of an equivalent level of training and experience.
In March 2021, as a result of the Tribunal's findings concerning the 2016 complaints, the Tribunal ordered that:
(a)the Respondent's registration was cancelled;
(b)the Respondent was disqualified from applying for registration for a period of 4 years 6 months; and
(c)the Respondent was disqualified from providing any health service involving the consultation with, or touching, of any female patient until such time as he is returned to the register of health practitioners under the National Law.
The period the Tribunal disqualified the Respondent from applying for registration was reduced from 5 years to 4 years 6 months to take into account that the Respondent had been suspended from practice since 16 September 2020.
The Respondent will not be eligible to apply for registration before September 2025.

2013 complaint

On 12 August 2020, the Australian Health Practitioner Regulation Agency (Ahpra) received a further complaint concerning the Respondent's conduct from the complainant. The conduct the subject of that complaint is alleged to have occurred in 2013 (2013 complaint).
The Board appointed an investigator, Sam Lowther, to investigate the 2013 complaint on 16 August 2020. Mr Lowther was an Ahpra employee.
On 8 September 2020, Mr Lowther informed the Respondent's legal representatives, Zafra Legal, that the Board had received the 2013 complaint, after contacting the complainant on 3 September 2020.
On 16 September 2020, the Board took immediate action under s 156(1)(a) of the National Law by suspending the Respondent's registration.
On 22 September 2020, the Board requested the complainant's clinical records and the Respondent's practice information, which were provided by the Respondent on 7 October 2020.
Between 12 October and 3 November 2020, Mr Lowther attempted to contact the complainant to arrange an interview. On 4 November 2020, the complainant responded to Mr Lowther's attempts to contact her. On 9 November 2020, Mr Lowther interviewed the complainant. On the same day, Mr Lowther interviewed another witness by telephone.
On 9 November 2020, the complainant advised Mr Lowther that she had provided a statement to police concerning the Respondent's conduct. On 16 November 2020, Mr Lowther advised the complainant that the complaint would be put on hold while he inquired whether the police would be investigating and prosecuting the matter. On 19 November 2020, the police informed Mr Lowther that they had no record of the complaint. On 23 November 2020, Mr Lowther told the complainant that she may want to contact the police again if she wanted the matter investigated.
On 2 December 2020, Mr Lowther wrote to the Respondent and advised that Ahpra's investigation was ongoing and that he expected to interview the Respondent in the New Year.
On 7 December 2020, the complainant informed Mr Lowther that she did not plan to contact the police again. On 8 December 2020, Mr Lowther sent the complainant and the other witness draft witness statements for review. On 11 December 2020, the other witness emailed her signed statement to Mr Lowther. On 14 December 2020, Mr Lowther interviewed another witness and provided a draft statement for review. That witness emailed her signed statement to Mr Lowther on 18 December 2020. Between 4 and 12 January 2021, Mr Lowther followed the complainant up about her statement. On 19 January 2021, the complainant returned her signed statement to Mr Lowther.
In correspondence with Zafra Legal between 14 January and 5 February 2021, Mr Lowther arranged an interview with the Respondent on 19 February 2021, which took place on that day.
On 15 and 30 March 2021, Mr Lowther asked the complainant whether she would consent to Ahpra reporting the matter to police. On 6 April 2020, the complainant told Mr Lowther she did not wish Ahpra to do so.
Between 29 March and 27 April 2021, Mr Lowther contacted and briefed an independent expert and obtained an opinion.
On 6 May 2021, Mr Lowther advised Zafra Legal that the Board was considering the additional issue of whether the Respondent's clinical records were accurate and invited a response. On 13 May 2021, the Respondent's current solicitors (MDK) advised Mr Lowther that they acted for the Respondent. MDK provided a response to the correspondence of 6 May on 9 June 2021.
On 9 June 2021, Mr Lowther advised MDK that another investigator would take over the matter. On 23 June 2021, another Ahpra employee, Ainsley Rogers, emailed MDK advising that she had been appointed as investigator.
In July 2021, the Board received another notification about the Respondent. There is no evidence before us about the investigation of this complaint. It is not in dispute that no action resulted from it.
By email dated 22 October 2021, a letter dated 22 September 2021 from another Ahpra employee, Scott Anderson, was sent to Zafra Legal (not MDK). In that letter, Mr Anderson said:
We have made progress in the past three months, including:
-Made requests for information.
-Received information we requested.
-Await response about additional information that has been requested.
The investigation is continuing. There is further information needed to help the Chiropractic Board of Australia (the Board) make an informed decision. The investigation will continue to be conducted in a timely way, guided by the nature and complexity of the issues being investigated.
I acknowledge that this investigation has taken longer to complete than we had expected. On behalf of Ahpra and the National Board, I want to apologise to your client for that.
Without trying to make excuses, as an organisation, we have been undergoing significant change to our structure and our ways of working.
While we think these will be important in the long term, they have impacted our ability to complete open investigations.
I will work hard to complete the remainder of the investigation as quicky as possible. I will do everything I can to keep your client informed of the remaining steps in the investigation.
Under cover of a letter dated 22 October 2021 from MDK,[25] the Respondent provided the Board with an undertaking which was worded as follows:
I [the Respondent], Manager of [Practice] hereby undertake to APHRA [sic] & National Boards as follows:
1.To no longer work as a Chiropractor in the State of Western Australia.
2.Not to re-register on the roll of Chiropractors in Western Australia following expiration of the suspension period being March 2025.
[25] The date the undertaking was provided is referred to in a letter from MDK to Ahpra dated 15 August 2023.
On 19 January 2022, another Ahpra employee, Maija Raittinen, advised MDK and the complainant that she had taken over as investigator in the matter.
In around June 2022, Ahpra conducted an internal case conference to assess the matter. On 23 June 2022, Ms Raittinen emailed the complainant to update her on the matter.
On 2 August 2022, another Ahpra employee, Jacqueline Huppert, advised the complainant that she had been appointed to finalise the investigation.

On 24 September 2022, another Ahpra employee, Sarah Costello, contacted Dr Peter Werth to ascertain his willingness to provide an expert opinion in the matter. After some correspondence, Dr Werth confirmed his availability on 7 October 2022. On 17 October 2022, Ms Huppert emailed a brief to Dr Werth seeking his opinion.
On 19 October 2022, Ms Huppert provided an update to MDK and the complainant, and advised that a further independent opinion had been sought.
On 21 November 2022, Dr Werth provided Ahpra with his opinion in response to the brief.
On 30 November 2022, Ms Huppert sent a copy of Dr Werth's opinion to MDK and sought the Respondent's response. On 20 December 2022, MDK provided Ms Huppert with a written response on behalf of the Respondent.
On 17 January 2023, Ms Huppert wrote to MDK and said, in part:
We have made progress in the past three months, including commencing drafting our report for the Board.
I acknowledge that this investigation has taken longer to complete than we had expected. On behalf of Ahpra and the National Board, I want to apologise to your client for that.
I will work hard to complete the remainder of the investigation as quickly as possible. I will do everything I can to keep your client informed of the remaining steps in the investigation.
On 9 May 2023, Ms Huppert again wrote to MDK to advise of progress in the matter. In her letter, Ms Huppert said:
We have made progress in the past three months, including:
-Made requests for information;
-Received information we requested;
-Commenced drafting our report for the Board.
The investigation is continuing. There is further information needed to help the Chiropractic Board of Australia (the Board) make an informed decision. The investigation will continue to be conducted in a timely way, guided by the nature and complexity of the issues being investigated.
I acknowledge that this investigation has taken longer to complete than we had expected. On behalf of Ahpra and the National Board, I want to apologise to your client for that.
Without trying to make excuses, as an organisation, we have been undergoing significant change to our structure and our ways of working.
While we think these will be important in the long term, they have impacted our ability to complete open investigations.
I will work hard to complete the remainder of the investigation as quicky as possible. I will do everything I can to keep your client informed of the remaining steps in the investigation.
On 15 August 2023, MDK wrote to Ahpra asking that the investigation be discontinued. MDK said that the ongoing investigation was taking a toll on the Respondent's mental health and enclosed a letter from his treating psychiatrist. Ms Huppert responded by email on 8 September 2023 acknowledging MDK's letter and advising a response 'will be forthcoming in the near future'.
On 27 October 2023, the Board met and formed the belief that the conduct the subject of the 2013 complaint may constitute professional misconduct and decided the matter should be referred to the Tribunal.
On 31 October 2023, Ms Huppert wrote to MDK advising of the Board's decision to refer the matter to the Tribunal.
On 8 November 2023, Ahpra instructed Russell Kennedy Lawyers to act on the Board's behalf.
On 23 January 2024, the Board commenced the current proceedings, in which it is alleged that during a consultation on 31 October 2013, the Respondent inappropriately touched the complainant's breasts. It is also alleged that between 30 August 2013 and 31 October 2013 the Respondent failed to maintain adequate clinical records of his consultations with the complainant. The complainant is alleged to have continued to attend other practitioners at the Respondent's practice until November 2018, but not to have received treatment from the Respondent after 4 November 2013.
At the outset of the hearing on 16 July 2024, the Respondent produced a further undertaking, worded as follows:
I [the Respondent], Student of [the Respondent's address] hereby irrevocably undertake to APHRA [sic] & National Boards as follows:
1.To no longer work as a Chiropractor within Australia;
2.Not to ever re-register or to ever seek re-registration on the roll of Chiropractors in Western Australia or in any other jurisdiction in Australia; and
3.To consent to the making of an order pursuant to section 196(4)(a) of the National Law disqualifying me from applying for registration as a Chiropractor at any time in the future.

Consideration of the issues

Disqualification based on physical incapacity

The Respondent submitted that the Tribunal had the power to disqualify the Respondent because of a physical impairment by virtue of s 196(1)(b)(iv) of the National Law, which provides that after hearing a matter about a registered health practitioner, the Tribunal may decide that the practitioner has an impairment. Under s 196(2)(e), the Tribunal may cancel the practitioner's registration following a decision under s 196(1)(b), including s 196(1)(b)(iv). If the Tribunal decides to cancel a practitioner's registration, under s 196(4)(a) the Tribunal may decide to disqualify the practitioner from applying for registration for a specified period and, under s 196(4)(b)(i), may prohibit the person either permanently or for a stated period from providing any health service.
Impairment in relation to a person is defined in s 5 of the National Law as follows:
… means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect:
(a)for a registered health practitioner … the person's capacity to practise the profession.
The medical evidence provided in the Respondent's affidavit sworn on 11 July 2024 includes:
(a)a certificate dated 20 May 2024 from his general practitioner to the effect that the Respondent has severe facet joint arthritis of the lumbar spine which 'deleteriously affects his ability to practice as a chiropractor';
(b)a letter from a consultant rheumatologist dated 21 May 2024 which says that 'due to severe facet joint arthritis of the lumbar spine and based on the history, ongoing presentation and objective findings, this patient has a condition that detrimentally affects his ability to practice as a chiropractor', and that the Respondent cannot return to chiropractic duties; and
(c)a letter from a consultant in pain medicine and anaesthesia dated 28 May 2024 which confirms the diagnosis and says, 'this detrimentally affects the Respondent's ability to work as a chiropractor' and that he is not able to return to chiropractor work for this reason.
None of these reports identify the basis for the expressed opinions that the condition detrimentally affects the Respondent's ability to work as a chiropractor or why it is said that he cannot return to such work, other than by the bare reference to the medical condition and, in the case of the consultant rheumatologist, the reference to unidentified 'history, ongoing presentation and objective findings'. It might be inferred from the condition that practising as a chiropractor may cause the Respondent pain and that this would detrimentally affect him. However, there is no evidence that this condition would detrimentally affect his ability to practise as a chiropractor as far as his treatment of patients is concerned (if he were registered to practice).
An impairment can only prevent a health practitioner from holding, for example, general registration, where (in the Board's opinion) that impairment would detrimentally affect the practitioner's capacity to such an extent that it would, or may, place the safety of the public at risk.[26] Accordingly, the evidence does not appear to support a relevant finding of impairment.
[26] See s 55(1)(a) of the National Law. The same provision applies to specialist registration (s 60), provisional registration (s 63), and limited registration (s 70).
In any event, we do not accept the Respondent's submission that this finding could be made by the Tribunal despite the Board not having referred a matter alleging the Respondent is impaired to the Tribunal.
The Tribunal is a creature of statute and has power only to the extent conferred by legislation.[27]
[27] Chang v Legal Profession Complaints Committee[No 2] (2000) 56 WAR 263 [380] Mitchell JA.
Section 193(1)(a) of the National Law authorises the Board to refer a 'matter' to the Tribunal where it reasonably believes that a health practitioner has behaved in a way that constitutes professional misconduct. The matter specified in the Board's application alleges that in 2013 the practitioner has engaged in professional misconduct in the way referred to in [84] above and provides particulars of those allegations. That is the 'matter' that the Tribunal has the jurisdiction to determine, falling within its original jurisdiction under s 15(1)(a) of the SAT Act. The Board does not allege the Respondent has an impairment.
In our view, we cannot make a finding of impairment about the Respondent that is separate from the matter before us. Such a finding does not arise for determination in the matter and is outside the scope of the original jurisdiction conferred on us.
It is possible to conceive of theoretical circumstances where it might be open to the Tribunal to make a finding that the Respondent is suffering from an impairment where an allegation of professional misconduct is made: for example, if the Respondent were to defend an allegation of professional misconduct on the basis that the conduct occurred as the result of an impairment. We make no finding about that, as it does not arise in this case. The Respondent says that he is suffering from an impairment now, not that he had an impairment at the time of the alleged misconduct in 2013 that affected his behaviour.
The orders referred to by the Respondent's counsel, which were made by the Tribunal in Physiotherapists Board of Australia and Joyce,[28] do not assist the Respondent's submission. The annexure to those orders records that the application originally alleged professional misconduct but was amended by the Board to additionally allege that the practitioner suffered from an impairment that permanently incapacitated him from practice. The practitioner denied the misconduct but admitted the impairment and agreed to an order disqualifying him from registration. The finding that the practitioner suffered from such an impairment was, therefore, within the scope of the 'matter' that had been referred to the Tribunal.
[28] Physiotherapists Board of Australia and Joyce [2021] VR 101.
Accordingly, while the evidence of physical impairment may reinforce the Respondent's expressed intention not to practise as a chiropractor again, it cannot offer any certainty that he will not do so in the manner suggested.

The effect of the undertakings

The undertakings the Respondent has given, referred to in [70] and [85] above, are stated to be to Ahpra and the 'National Boards'.
Ahpra does not have any power to accept an undertaking.
The Board accepted that it had the power under s 178(2)(b) of the National Law to accept an undertaking from a registered health practitioner where the Board reasonably believes, under s 178(1)(i), that the practitioner's professional conduct is, or may be, unsatisfactory.
Generally, a reference to 'a registered health practitioner' refers to an individual who is registered under the National Law to practise a health profession (other than a student), or who holds non-practising registration.[29]
[29] Section 5 of the National Law.
However, s 178 appears in Part 8 of the National Law. Section 139A(2) of the National Law provides that proceedings may be taken under Part 8 of the National Law against a person as if the person was still registered in a health profession, in relation to behaviour that occurred while the person was registered. Section 139A(3) provides that for the purposes of s 139A(2), Part 8 applies with the necessary changes to the person as if they were a registered health practitioner. Accordingly, s 178 would appear to apply to a health practitioner who was no longer registered, to enable the Board to accept an undertaking, as the Board conceded.
Section 193A(1) allows the Board to decide not to refer a matter about a registered health practitioner mentioned in s 193(1)(a) to the Tribunal, including a matter where the Board believes the practitioner's conduct may constitute professional misconduct, if the Board decides there is no public interest in the matter being heard by the Tribunal. Section 193A(2) sets out the matters the Board must have regard to in deciding whether or not there is a public interest in a matter being heard by a Tribunal. This includes s 193A(2)(d), which is whether the practitioner is still registered and, if not, may again seek registration in the future.
Accordingly, if the Board accepted the Respondent's undertaking not to seek registration in the future, the Board might also decide that it need not pursue the 2013 complaint as not being in the public interest. However, whilst that would be a consideration, the Board would not be required to decide it was not in the public interest to pursue the matter. Other considerations set out in s 193A(2) include the seriousness of the alleged conduct,[30] and any other public benefit in having the matter referred including the benefit of a public decision in relation to the matter.[31]
[30] Section 193A(2)(b) of the National Law.
[31] Section 193A(2)(e) of the National Law.
The Board did not accept the initial undertaking. It submitted that the first undertaking was unsatisfactory for a number of reasons, which appear to have been largely resolved by the second undertaking the Respondent proffered at the hearing. That undertaking has also not been accepted.
Had the Board considered that an undertaking would have satisfied the public interest considerations, it would have been open to it to seek to negotiate the terms of the undertaking before commencing the proceedings. It may then have decided not to proceed with the matter. However, it is clear from the Board's submissions that its view is that the public interest in the matter proceeding to a hearing is not negated by the prospect that the Respondent will never again practice. The Board's submission that the Board could not accept the second undertaking proffered after the proceedings had been commenced was secondary to that primary argument.
It is open to the Board to decide not to accept an undertaking from the Respondent. However, we do not accept the Board's submission that it could not accept an undertaking from the Respondent after the matter has been referred to the Tribunal. In our view, the Board's power to determine whether, and in what circumstances, to pursue proceedings is not fettered in the manner submitted by the Board.
It is open to the Board under s 46(1) of the SAT Act to seek leave to amend, or withdraw, proceedings that have been commenced in the Tribunal. There is nothing in National Law that suggests the Board would be limited in its ability to resolve proceedings by being prohibited from deciding to seek leave to withdraw proceedings on the basis that it was satisfied that it was no longer in the public interest to pursue those proceedings as a result of something that has occurred after the proceedings commenced, including that the practitioner had offered an undertaking. In Physiotherapists Board of Australia and Joyce,[32] the applicant board sought leave to withdraw the proceedings on the allegation of professional misconduct after amending to include an allegation of impairment, on the basis it was no longer in the public interest to pursue the allegations of misconduct.
[32] Physiotherapists Board of Australia and Joyce [2021] VR 101.
The Board also submitted it would not be possible to publish an undertaking from a person who was not registered, which it said was relevant to the issue of deterring other practitioners from behaving in the same way, and to explain the regulatory authority's decision not to pursue the proceedings to the public. There are provisions in the National Law which specify what information the Board must publish in relation to registered practitioners, which do not apply to people who are not registered. However there does not appear to be anything in the National Law to prevent the Board from publishing an undertaking by an unregistered person, at least with the agreement of the person giving the undertaking. There is no suggestion that the Respondent would not agree, and in fact the indications are to the contrary.
That said, there does not appear to be any method under the National Law of enforcing an undertaking given by a person who is no longer registered. The other provisions of the National Law referring to undertakings largely do so in the context of a practitioner who holds registration at the time of giving the undertaking, or who gains registration as a result of giving the undertaking. The National Law provides that the failure to comply with an undertaking constitutes unprofessional conduct by a registered practitioner.[33] Section 139A would not apply to allow action to be taken under Part 8 in relation to a breach of an undertaking occurring while the Respondent was not registered, as it expressly applies to conduct occurring while the health practitioner was registered. Section 112(2)(ba) allows the Board to refuse to renew a practitioner's registration on the basis that the practitioner had failed to comply with an undertaking given to the Board that was in effect during the practitioner's previous period of registration. However, as the Respondent is not currently registered, that section would not apply.
[33] See the definition of 'unprofessional conduct' in the National Law at s 5(b)(ii).
Accordingly, it would appear to be theoretically open to the Respondent to change his mind and apply for registration despite the undertaking and then to appeal any decision not to grant registration, under s 199(1)(a) of the National Law. That said, there is nothing to suggest that the Respondent has any other intention than to abide by the undertaking he has sought to give the Board.

Is there any legitimate public interest in the proceedings?

The conduct the subject of the current proceedings is very serious. The public is likely to expect that complaints about a chiropractor indecently touching a patient without permission or clinical justification would be investigated, heard, and determined.
The public are also, in our view, likely to understand that disciplinary proceedings are protective in character, and that there is a reduction in the utility of such proceedings, and therefore in the public interest in bringing them, if the Respondent is no longer practising and does not intend to do so. In such circumstances there is no need to protect the public from the Respondent.
As has been said, however, the purpose of disciplinary proceedings extends beyond the protection of the public by preventing practitioners who engage in professional misconduct from practising. Such proceedings also operate as a general deterrent to ensure that other practitioners do not behave in the same way and to reassure the public that the standards of the profession are being maintained by those responsible for the regulation of a profession.
Again, in our view, the utility of these proceedings for that purpose is reduced in that very similar conduct to that alleged in the 2013 complaint has already been made an example of in the prior proceedings. The current allegations occurred on a single occasion some years before the 2016 complaints, which have already been publicly denounced by the Tribunal.
However, proof of the current allegation, if that occurred, would show a course of professional misconduct over a longer period than the 2016 complaints, which may conceivably have warranted an increase in the sanction imposed, had this complaint been dealt with at the same time as the 2016 complaints. In particular, although the sanction imposed of deregistration is the most significant sanction that could have been imposed, a longer period may have been set during which the Respondent was not permitted to reapply for registration. It is possible that period could be increased in the current proceedings if they are determined against the Respondent, although the benefit of this is diminished by the evidence that the Respondent does not intend to seek registration again.

As is clear from s 193A(2), the public interest considerations the Board may consider extend beyond the considerations of whether a practitioner is still registered to practise, or whether there is a need to protect the public from the practitioner. Section 193A(2)(e) expressly refers to the benefit to the public in having a public decision in relation to a matter being a relevant consideration in the public interest. Whilst that section governs the matters the Board is to consider in determining the public interest, in our view, that is also relevant to our consideration of the Respondent's application. The public denouncement of such conduct has the potential to give the public confidence in the regulatory system, by assuring the public, including potential complainants, that serious complaints will be pursued. It also has the potential to operate as a deterrent to practitioners who may be tempted to behave in a similar way, by the example of any disciplinary outcome and by assuring them that their ceasing to practise will not have the effect of avoiding the disciplinary consequences of professional misconduct.
Given the undertaking the Respondent attempted to give the Board, the findings made in relation to the 2016 complaints, and the sanctions imposed in relation to those findings, it would have been understandable had the Board decided it was not necessary in the public interest to pursue the current matter. However, in our view, it cannot be said that there is no public interest in the matter being pursued to a hearing given the other considerations we have referred to.

Are the proceedings unjustifiably oppressive relative to the public interest?

The Board is the body in whom the legislature has entrusted the power to refer disciplinary proceedings to the Tribunal. Although it was, in our view, open to the Board to determine that it was not necessary to pursue the proceedings, the Board has formed the view that the proceedings are in the public interest. We have found that it cannot be said that there is no public interest in doing so. There is no suggestion that the Board is pursuing the proceedings for any improper or ulterior purpose. Given there is a proper purpose, in our view there is no basis to prevent the Board from pursuing the matter on this ground alone.
Whilst the Respondent may consider the proceedings to be oppressive in the circumstances, they cannot be said to be unfairly burdensome, prejudicial or damaging or productive of unjustified trouble in the circumstances. Accordingly, in our view, dismissal of the proceedings on this basis is not warranted.

Delay in investigating the complaint

There are periods of delay in the investigation which, in our view, are not explained.
There are two periods where there is little or no progress in the investigation. The first period is between 23 June 2021, when Ms Rogers was appointed, until 2 August 2022, when Ms Huppert was appointed. During this period of approximately 13 months, it appears that three investigators had some involvement in the matter, some inquiries were made about obtaining evidence, and an internal case review took place. The only inquiry of any significance referred to in the affidavit is a request whether the complainant had any record of payment for the consultation on 31 October 2013, made by Ms Raittinen on 19 January 2022.
The second period is of approximately 9 months between 17 January 2023, when Ms Huppert said that they had commenced drafting a report to the Board, to sometime before 27 October 2023, when the Board met and determined to refer the matter to the Tribunal. Presumably at some time in this period, the report to the Board, which had been commenced before 17 January 2023, was completed.
Ms Lioudvigova says in her affidavit that she had not included reference to every aspect of work done in relation to the notification, saying:
I have not included reference to any request for, or provision of, legal advice. It is not my intention in making this affidavit to waive any litigation privilege or legal professional privilege that may exist in relation to any of the documents referred to in this affidavit.
The Board's counsel invited us to find that any delays were explicable for this reason. In our view it is not possible to draw this inference. Given the lack of evidence about this, an inference that any delay was the result of the Board seeking legal advice would be speculative.
The Ahpra employees apologised for the delay on three occasions, on 22 September 2021 (albeit by a letter sent on 22 October 2021), and 17 January and 9 May 2023. Whilst the contents of these letters, referred to in [69], [78] and [79] above, are in somewhat generic terms, the letters of 22 September 2021 and 9 May 2023 indicate that the delay was attributable to internal organisational issues.
In our view, it may be inferred that some of the delay was the result of organisational issues including turnover of staff, as evidenced by the letters and the number of employees who appear to have had carriage of the investigation. Whilst that does not explain the totality of the delay it explains some part of it. It appears that the balance of the period of the 3½ years between the complaint being received and the proceedings being commenced has been explained by the progress of the investigation albeit that progress, after February 2021, appears limited given the matter’s relative lack of complexity.
The total period of around 3½ years between the complaint and the proceedings being commenced is somewhat longer than the delay in Woollard[34] and Pharmacy Board of Australia and Hamilton,[35] where the proceedings were not dismissed as an abuse. However, the differences are not significant. Some of the delay is unexplained, and it is obviously undesirable for disciplinary inquiries against practitioners to be unnecessarily delayed. However, in our view the delay in this case cannot be described as extraordinary or extreme.

Effect of delay on the Respondent

[34] Woollard v The Medical Board of Western Australia [2017] WASCA 64 - 2 years and 6 months.

[35] Pharmacy Board of Australia and Hamilton [2018] WASAT 95 - 21 months.

It appears that the consequences of delay said to have disadvantaged the Respondent in his defence of the matter occurred in the period before the complaint was made.
As has been said, the period between the occurrence of the events complained of and the matter being brought to the Board's attention is relevant when considering the effect of delay on the Respondent's ability to defend the allegations against him. In this case the conduct is alleged to have occurred 7 years before the complaint was made and the Respondent became aware of it.
Delay in a complaint is not uncommon in the case of allegations of indecent touching by a health practitioner. In this case, on the information before us, the complainant appears to have come forward in 2020 after becoming aware of the 2016 complaints.
The case against the Respondent is not particularly complex, involving a single complainant and a single incident.
It is not in dispute that the Respondent had no record of the consultation at which the alleged misconduct is said to have occurred, on 31 October 2013. The Board submitted that the Respondent could not show that any records had been lost or destroyed. This appears to have been conceded by the Respondent in his interview with Ahpra and in a letter dated 9 June 2021 from MDK to the Board. During the interview the Respondent acknowledged that his record keeping was not adequate and he said that he could not say if the notes were missing because of IT issues or because he had not recorded any notes.[36]
[36] Hearing book at 179.
The Board submits that the contents of MDK's letter dated 9 June 2021 to the Board demonstrate that the Respondent can meaningfully respond to the allegations. The Respondent says that all he was able to do in that letter was to point out the inconsistencies in the complainant's evidence rather than raise a positive defence.
In its letter of 9 June 2021,[37] MDK outlined the Respondent's lack of recollection of the consultation and denial of the alleged touching. That letter refers to a number of inconsistencies said to exist between the complainant's statement and the records of her attendances with the Respondent that are available and between the complainant's statement and what she reportedly told other people about the event complained of.
[37] Part of attachment AL-24 to the affidavit of Alexandra Lioudvigova dated 20 May 2024.
However, in the interview with the investigator, the Respondent was able to speak about his usual practice at the time of the consultation.[38] He said that at that time he did not record conversations about consent, referring to touching intimate areas. He denied he massaged the breast, saying 'what she has described is so far away from my normal practice'.[39]
[38] Hearing book at 188.
[39] Hearing book at 195.
The Respondent's other medical notes in relation to the complainant are very brief. Accordingly, if a note had been prepared in relation to the 31 October 2013 consultation, it seems likely that it would have been equally brief and unlikely to have contained any information useful to the Respondent's defence.
The Board submitted that the Respondent was required to prove that records were lost in order to rely on any detriment suffered by the lack of records. The Respondent relied on Brisbane South Regional Health Authority v Taylor[40] (Brisbane) in submitting that he did not.
[40] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
In Brisbane, McHugh J, said, in relation to the deterioration of evidence over time:
Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more than we realise, the deterioration is not recognisable even by the parties. Prejudice may exist without the parties or anybody realising it exists. As the United States Supreme Court pointed out in Barker v Wingo, 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' it had ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may well appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing the proceedings, the more likely it is that the case may be decided on less evidence than was available to the parties at the time that the cause of action arose.[41]
(citation omitted)
[41] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551.
However, Brisbane concerned whether a limitation period should be extended where the alleged negligence had occurred 17 years before, where the plaintiff claiming against the health authority was required to satisfy the court that it should exercise its discretion in favour of the plaintiff to extend the limitation period. McHugh J's comments occurred after a recognition that the applicant for an extension of time bore the onus of showing that the justice of the case required the exercise of the discretion in his or her favour, and that discretion must be exercised in the context of the rationale for the existence of limitation periods: that the perception that the quality of justice deteriorates with delay.
Ultimately, the Respondent must satisfy the Tribunal that he has, rather than may have, suffered a detriment because of the delay. That task may have been assisted if he had been able to satisfy the Tribunal that he had kept detailed notes but had lost or destroyed them. However, that is not the case in this matter.

Are the proceedings an abuse of process by reason of the delay?

In our view, the delay has not prejudiced the Respondent to the extent that any hearing of the matter must be unfair.
Although considerations of unfairness need to be weighed against the public interest in such proceedings being heard,[42] which is somewhat reduced in the circumstances of this case, any prejudice in the Respondent's defence of the matter resulting from the delay is, in fact, limited.
[42] Davis v Medical Board of the Australian Capital Territory (1994) 52 FCR 279 at 291.
The cases cited by the Respondent as occasions when the effects of the passing of time justified the stay of proceedings are very different from the current situation. In one case, the defendant had dementia and was incapable of providing any response to the allegations against him.[43] In another, the defendant was being asked to respond, nearly 59 years later, to allegations of his actions as a 13‑year‑old about a person he had known for about a week.[44]
[43] Moubarak by his tutor Coorey v Holt (2019) NSWLR 218.
[44] Connellan v Murphy [2017] VSCA 116.
Nor, in our view, can that delay be said to have been productive of unfairness that cannot be overcome, given the need for the Tribunal to observe the accepted principles referred to at [43] above. In our view, these are sufficient, in the circumstances, to ensure the Respondent receives a fair hearing.
Accordingly, in our view there is no established unfairness that warrants the exceptional or extreme action of dismissal of the proceedings on this basis.

Application for a non-publication order

Submissions

The Respondent submits that the medical evidence relied on by the Respondent demonstrates a real risk that the publication of his name will endanger his mental health because there was a real risk that he would commit acts of self-harm or suicide.
The Respondent says that whilst he suffered mental health symptoms including suicidal ideation as a result of the publication of the Tribunal's decision in relation to the 2016 complaints and the subsequent disciplinary action, those symptoms had improved prior to the commencement of the current proceedings. The Respondent submits that the medical evidence supports a conclusion that those symptoms would be exacerbated if he were publicly named in these proceedings.
The Board accepted that the publication of the Respondent's name in connection with the proceedings may cause him humiliation, embarrassment, and shame. However, the Board submits that these consequences would be common in disciplinary proceedings of this nature.
The Board submits that there is insufficient evidence produced by the practitioner to establish that there is a specific risk to the Respondent's safety, or physical or mental health from the publication of his name in connection with the proceedings beyond that emotional distress.

Issue arising in the application for a non-publication order

In light of the parties' submissions, the issues to be determined are:
(a)on the evidence the Respondent relies on, are we satisfied that there is a real and substantial risk that his mental health will be endangered by the publication of his identity in connection with these proceedings; and
(b)is the order sought necessary to avoid endangering the Respondent's mental health.

Legislative framework and principles

By s 62(1)(c) and s 62(3) of the SAT Act the Tribunal may, in the circumstances described in s 64(4), order that any information that might enable a person who has appeared before the Tribunal to be identified is not to be published except as specified by the Tribunal. There is no dispute that the Respondent is a person who has appeared before the Tribunal.
The Respondent relies on the circumstance described in s 61(4)(d) of the SAT Act: that the order is necessary to avoid endangering the physical or mental health or safety of any person, namely the Respondent.
According to the Shorter Oxford English Dictionary, the word 'endanger' means to 'put in danger'. The meaning of the word 'danger' includes 'mischief, harm, damage' and 'liability or exposure to harm or injury', 'risk' and 'peril'.
An order cannot be made under s 62(3) unless the Tribunal is satisfied that such an order is necessary to avoid a consequence set out in s 61(4) of the SAT Act. This requires the Tribunal to be satisfied that there is a real and substantial risk of the consequence occurring if the order is not made.[45] Accordingly, in this case, the order cannot be made unless the Tribunal is satisfied that there is a real and substantial risk that the Respondent's mental health will be endangered if the Respondent's name is published in connection with the proceedings.
[45] Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 [116].
The requirement that the order is 'necessary' will not be satisfied where there is only 'a remote possibility of harm arising from an indirect or tenuous connection' with the publication of the Respondent's name in connection with the proceedings.[46] The consequence, in this case the risk to the Respondent's mental health, must be of a significant or material kind. The order cannot be made on evidence of minor, transient or ephemeral consequences.[47]
[46] Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 [88].
[47] Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 [88].
In Medical Board of Australia and Ogundipe,[48] Sharpe DCJ said that the circumstances in which an order can be made under s 62(3) of the SAT Act are set out in s 61(4) which does not include any need to consider any principles of the public interest. His Honour said:
No matter how compelling the public interest may be in the publication of the name of the Respondent, the Tribunal's only consideration when deciding to make an order under s 62(3) is whether it is necessary to do so to avoid endangering the physical or mental health of the Respondent, his wife, or both of them.
[48] Medical Board of Australia and Ogundipe [2019] WASAT 32 [38].
In Nursing and Midwifery Board and A Practitioner, Pritchard P said, in the context of disciplinary proceedings, that the terms of s 62 take into account the public interest considerations in determining whether a nonpublication order should be made, as follows:
Making a non-publication order in relation to the name of a respondent would have the consequence of undermining the transparency of the disciplinary process which is significant in relation to deterring other health professionals from engaging in similar conduct and for the protection of consumers of health services. To some extent that consideration underlies the requirements s 61 of the SAT Act. It is also reflected in the requirement in s 61(4) of the SAT Act for the Tribunal to be satisfied that the non-publication order is necessary to avoid the consequences referred to, in this case, the danger to the physical or mental health or safety of any person. That requires a consideration of whether the non-publication is the only way to avoid endangering the respondent's mental health in the present circumstances.^[49]

Evidence of the Respondent's mental health

[49] Nursing and Midwifery Board and A Practitioner [2019] WASAT 148 [19].

In his affidavit of 23 February 2024, the Respondent says that his health has been greatly affected by the current proceedings. He attached a letter addressed to the Board dated 20 December 2022 in which he says:
I am writing this open letter to share with you the devastation and anguish my family have experienced since the findings against me were made in the SAT in March 2021.
…
Shortly after the SAT decision I was diagnosed with suffering from Post-Traumatic Stress Disorder, Anxiety and Clinical Depression. This led me to attempting to take my own life. I am blessed to be here as I can see how much pain I would have left my family if I were successful in that act.

The Respondent attaches to that affidavit a copy of a letter dated 17 February 2024, from a psychiatrist, Dr Kartikey Agarwal, and a copy of a letter dated 9 February 2024 from a psychologist, Ms Kylie Coventry.
Dr Agarwal's letter was apparently in response to a letter from MDK which posed the questions Dr Agarwal refers to in his letter. We have not been provided with a copy of MDK’s letter to Dr Agarwal. However, the questions are set out in his report.
Dr Agarwal says that he is the Respondent's treating psychologist, the Respondent having been referred to him by his GP because of a heightened risk of suicide. Dr Agarwal says that, on 15 May 2023, the Respondent was admitted to Perth Clinic under his care and was discharged the following day.
Dr Agarwal says that, on 15 May 2023, he diagnosed the Respondent with Adjustment Disorder, with mixed anxiety and depressive disorder symptoms complicated by suicidal thoughts. He says that 'this condition occurred in the context of a new complaint against [the Respondent] to Ahpra by his previous patient'. Dr Agarwal said that the Respondent had reported mental health issues during the investigation into the previous complaints. However, he said:
I noted [the Respondent] had moved on and improved significantly in terms of his mental health, and was functioning adequately, with no mental health concerns until four days prior to the above-mentioned admission to Perth Clinic, when a new complaint against him, of a similar nature, was made to AHPRA. Prior to this recent complaint, [the Respondent] had been doing well, was focussed on his family and business pursuits and was studying …
Dr Agarwal says that he saw the Respondent on four occasions between 30 May and 15 November 2023. He reports that on each occasion the Respondent had a low acute risk of suicide, although noted the Respondent reported overdosing on 10 tablets of diazepam 5mg in early November. Dr Agarwal said that the Respondent described this as a suicide attempt but that he did not seek any help.
With respect to treatment, Dr Agarwal said that he had advised the Respondent to see a psychologist for several sessions and said:
… I did not see the role of any psychotropic medications being of benefit here, except occasional use of benzodiazepines, such as diazepam, to manage anxiety attacks or severe anxiety or insomnia. I advised [him] not to take any antidepressant, as this had been prescribed by his general practitioner. There was no evidence of major depression.
In response to being asked whether the Respondent's current mental health difficulties could be attributed to the findings made against him in July 2020 or whether 'the upcoming hearing is causing its own discrete negative impact' on the Respondent's mental health, Dr Agarwal said:
As mentioned earlier, [the Respondent] was functioning adequately and had no significant mental health concerns for quite a few years until a new complaint against him of a similar nature was made to AHPRA in April/May 2023. The upcoming hearing is certainly causing its own discrete negative impact on [his] mental health, and exacerbating his depressive and anxiety symptoms.
In response to being asked whether the Respondent had displayed any suicidal ideation and whether he had mentioned any 'suicidal ideology in the context of being identified as the Respondent to a disciplinary hearing', Dr Agarwal says:
As I mentioned in answer #1, [the Respondent] had experienced fleeting suicidal ideations since and throughout May 2023 to this year. The suicidal ideology has fluctuated in the context of the new complaint against [the Respondent] to AHPRA.
Dr Agarwal went on to say that both taking part in a second hearing and the prospect of being publicly named as the Respondent to a disciplinary hearing have a negative impact on the Respondent's mental health.He said:
In my opinion, if [the Respondent] is publicly named as being a chiropractor under investigation by AHPRA this could lead to further deterioration of symptoms of depression and anxiety and could increase his suicidal ideation.
…
In my opinion, if [the Respondent] is not publicly identified in any proceedings against him (that being, if his name is supressed) this would reduce the risk of further deterioration in his mental health.
The psychologist, Ms Coventry says in her report of 9 February 2024 that she had seen the Respondent on three occasions, on 14 and 24 November 2023 and 6 February 2024. She says that during these sessions the Respondent had consistently reported suicidal ideation, which the Respondent told her was directly related to his being identified as the respondent to a disciplinary hearing, and that the prospect of being publicly named was having a negative impact on his mental health. Ms Coventry says, 'In my opinion, this is consistent with his presentation and psychological distress I have witnessed in sessions with [the Respondent]'.
Ms Coventry says that, in her opinion, the Respondent presents with symptoms consistent of Generalised Anxiety Disorder, Major Depressive Disorder and Adjustment Disorder and that in her opinion, these 'can be attributed to the upcoming disciplinary hearing'.
Ms Coventry says that if the Respondent was not publicly identified in any proceedings it would reduce the further deterioration of his mental health and act as a protective factor in terms of the suicidal ideation he experiences.
In addition, the Respondent relied on a letter from the Emergency Department of Royal Perth Hospital (RPH) dated 22 April 2024, addressed to the Kenwick Medical Centre (RPH letter), which was attached to his affidavit of 11 July 2024. The Respondent said in his affidavit that the RPH letter concerned 'a medical episode that [he] suffered in connection with these proceedings and soon after medication'.
The RPH letter is in the form of a medical record rather than a written report. However, it appears from that letter that the Respondent attended RPH by ambulance on 22 April 2024 after suffering chest pains intermittently for the previous couple of days but which had increased on the day he attended hospital. The pain at the time of the attendance was described as '2/10' which we infer to be at the low end of a range of 1 to 10. The Respondent also reported suffering shortness of breath, a migraine like headache and sweating (diaphoresis). The Respondent was said to have referred to suicidal ideation in the context of increased stress at home. The RPH letter also refers to 'social stressors with Ahpra'. However, the Respondent was noted to have no intent or plan with respect to the suicidal ideation. At the time he was examined, the Respondent did not have any palpitations or shortness of breath.
The RPH letter records that the Respondent had said that he had a previous history of 'IOD – with 10 x 10mg diazepam (did not present at hospital at the time) – attended Perth Clinic'. We take this to be a reference to the overdose of diazepam that Dr Agarwal reports (although he reports the dose as 5mg) and that the Respondent did not attend hospital on this occasion.
The RPH letter records that the Respondent declined a psychiatric review at RPH because he was due to see a 'psych' the following day, presumably a psychiatrist or a psychologist, which had been arranged with his GP. The RPH letter also records that the plan was to discharge the Respondent, that he had a heart score of three and was referred to 'RACPC' which we infer is a rapid access chest pain clinic.

Consideration of the evidence going to the Respondent's mental health

There is no information to suggest Ms Coventry was aware of the previous proceedings against the Respondent concerning the 2016 complaints or any mental health issues arising in relation to those proceedings. Accordingly, in our view, her opinion that his symptoms are attributable to the current proceeding can be given no weight.
Dr Agarwal said that he did not have access to the Respondent's prior medical history for the period of January 2019 to 15 May 2023, although the Respondent reported to him that he had received mental health treatment. This encompasses the period during which the proceedings concerning the 2016 complaints were heard, in August 2019, and determined, in July 2020, and a disciplinary penalty imposed, in March 2021. That medical history has not been placed in evidence before us.
Accordingly, the information Dr Agarwal reports, that the Respondent's mental health and functioning had improved between the period that the 2016 complaints were heard and May 2023, is based solely on what the Respondent had told him, as was his statement that the Respondent developed suicidal thoughts in about May 2023 and continued to suffer these thoughts at the time of Dr Agarwal's report on 17 February 2024.
However, the factual basis on which Dr Agarwal bases his opinions is incorrect.
First, Dr Agarwal bases his opinions on the Respondent having become aware of the 2013 complaint four days before his admission to Perth Clinic on 15 May 2023 and two years after the proceedings concerning the 2016 complaints had been concluded by the Respondent being disqualified from practice.[50]
[50] Dr Agarwal refers to the Respondent having been suspended from practice for 5 years.
As is apparent from the facts found in relation to the application to dismiss the proceedings as an abuse of process, the Respondent became aware of the 2013 complaint in September 2020. He may well have hoped that it would not be proceeded with, given the periods of apparent inactivity in the Board's investigation. However, the Respondent was aware that the Board was pursuing enquiries by obtaining a further expert opinion in November 2022, and by the letters of 17 January and 9 May 2023 in which the investigator advised a report was being prepared for the Board.
The admission to Perth Clinic was six days after the second of these letters. It could be speculated that Dr Agarwal may have been told that the letter of 9 May 2023 had precipitated the feelings that led to the admission and misunderstood that letter concerned a new complaint rather than one which had been ongoing for nearly 3 years at that point, although there is no evidence of that.
However, Dr Agarwal's opinion is plainly based on the incorrect assumption that there was a clear period of time between the conclusion of the previous proceedings and the complaint the subject of these proceedings, during which there was no ongoing Ahpra involvement, and that during that period the Respondent's mental health had improved from having suffered symptoms of PTSD to functioning adequately for a period of years until being made aware of the new complaint. Rather, if there was an improvement in the Respondent's mental health, that improvement occurred while the Respondent was aware of the 2013 complaint, that the investigation was ongoing, and that it may result in his being identified in further proceedings.
The paragraph of the Respondent's letter to the Board of 20 December 2022 referred to in [159] suggests that he had suffered mental health issues as a result of the Tribunal's decision in March 2021 in relation to the 2016 complaints. To the extent that it is relied on to suggest that there were ongoing serious mental health issues as at December 2022, only five months before the attendance at Perth Clinic in May 2023, that might be said to further undermine Dr Agarwal's opinion. However, the only specific reference to mental health issues, rather than emotional distress, is at the time after the Tribunal's decision was handed down in March 2021.
There is also no evidence that Dr Agarwal was seriously concerned about the self-described attempt at suicide which was reported at the consultation on 15 November 2023. Dr Agarwal does not refer to any change of treatment as a result of receiving that information, nor does he suggest that the Respondent should not be prescribed diazepam, which the Respondent had said he had overdosed on. In addition, Dr Agarwal said that there was no evidence of major depression and that anti-depressants were not warranted. Dr Agarwal considered at that time that some sessions with a psychologist was sufficient to meet the Respondent's needs and did not arrange to see the Respondent again.
It was submitted on behalf of the Respondent that the lack of evidence of a high level of concern in Dr Agarwal's report may have been because the Respondent's mental health was stable in light of the previous non-publication order made by the Tribunal. However, that order was made on 27 February 2024, over three months after the Respondent had last seen Dr Agarwal and after Dr Agarwal had prepared his report of 17 February 2024 based on those earlier consultations.
In our view, these considerations limit the relevance of Dr Agarwal's opinion as to the effect of the current proceedings, and their publication, on the Respondent's mental health, and they can be given little weight.
In any event, even if we had accepted their evidence, neither the evidence of Dr Agarwal nor Ms Coventry supports a finding that the publication of the Respondent's name in connection with the publication of these proceedings will have a significant effect on his mental health.
Dr Agarwal says only that the upcoming hearing was exacerbating symptoms of depression and anxiety, in the context where he had said there was no evidence of major depression or need for medication (other than occasional diazepam) and where the only treatment after Dr Agarwal last saw him in November 2024 were some sessions with a psychologist.
Dr Agarwal also says that being named could lead to further deterioration in those symptoms, referring specifically to an increase in suicidal ideation. However, he does not say that there would be any increase in the risk of the Respondent acting on any such ideation. The same may be said of Ms Coventry's report.
With respect to the RPH letter, it appears that there was some suspicion that the chest pains were a symptom of anxiety, however, the possibility that there may have been a physical cause does not appear to have been excluded. The RPH letter does not record a diagnosis of the presenting condition.
The Respondent says, in his affidavit of 11 July 2024, that because of this episode he was advised to seek further medical assistance and had scheduled appointments with his GP, Dr Samtani, on 15 July, his psychologist on 19 July and Dr Agarwal on 23 July 2024. The Respondent does not say who gave him that advice, which is not referred to in the RPH letter.
There is no explanation why there is a gap of approximately three months between the attendance on 22 April 2024 and the appointment with his GP, the psychologist and the psychiatrist. Whilst it may take time to get an appointment with a psychiatrist or a psychologist the same cannot be said of a GP. In any event, there is no evidence that the Respondent was unable to get an earlier appointment. Indeed, the evidence is that he refused to see a psychiatrist at the hospital because he had an appointment the following day, although no evidence of his attending an appointment with a psychiatrist or a psychologist on 23 April 2024 has been produced. The reports that are in evidence predate the attendance at RPH.
Even assuming that the chest pain on 22 April 2024 was the result of anxiety or depression, the failure to take any further action soon after the attendance on 22 April 2024 suggests that the Respondent did not continue to suffer the symptoms reported on that day. Certainly, it does not support an inference that the Respondent has suffered ongoing symptoms of anxiety, or that they were significant.
Whilst there was a report of suicidal ideation, the Respondent was reported to have no intention or plan to commit suicide. Accordingly, there is no evidence of an ongoing risk of any mental health issue resulting in a consequence on the Respondent's physical health by acts of self-harm.
There is also little evidence to connect this incident with the risk of publication of the Respondent's name in relation to these proceedings, given it occurred two months after the interim non‑publication order was made in February 2024 and three months before the hearing of the current application.
It may be accepted that the proceedings could cause the Respondent significant stress, embarrassment, or shame, particularly given the nature of the allegations against him. However, as the Board submits, such feelings are likely to be common amongst practitioners who are the subject of disciplinary proceedings.
In our view, the evidence produced by the Respondent does not support a finding that there is any ongoing substantial risk that the Respondent's mental health will be endangered, or that it would be endangered in any significant way, or that there might be any effect on his physical health, or safety, consequential on any effect on his mental health.
Accordingly, we are not satisfied that a non-publication order is necessary to avoid endangering the Respondent's physical or mental health or safety.

Conclusion

For these reasons, we will order:
(a)The Respondent's application pursuant to s 47(1)(c) of the State Administrative Tribunal Act 2004 (WA) to dismiss the proceedings as an abuse of process is dismissed; and
(b)The Respondent's application pursuant to s 62(3) and s 61(4)(d) of the State Administrative Tribunal Act 2004 (WA) is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
GH
Associate to Deputy President Judge Vernon
5 DECEMBER 2024