MARCUS and MEDICAL BOARD OF AUSTRALIA

[2024] WASAT 8

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

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

CITATION:   MARCUS and MEDICAL BOARD OF AUSTRALIA [2024] WASAT 8

MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT

MR E CADE, MEMBER

DR H HANKEY, SENIOR SESSIONAL MEMBER

HEARD:   12 OCTOBER 2023

DELIVERED          :   16 FEBRUARY 2024

PUBLISHED           :   16 FEBRUARY 2024

FILE NO/S:   VR 53 of 2022

BETWEEN:   IAN MARCUS

Applicant

AND

MEDICAL BOARD OF AUSTRALIA

Respondent

Catchwords:

Vocational regulation - Medical practitioners - Immediate action - Serious risk to persons - Public interest - Breach of professional boundaries - Intimate but non-sexual relationship with patient - Other inappropriate behaviour - Suspension of registration

Legislation:

Health Practitioner Regulation National Law, s 3(2), s 3(3), s 155, s 156(1)(a), s 156(1)(e), s 199(1)(h), s 199(1)(j)
Health Practitioner Regulation National Law (WA) Act 2010, s 4

Result:

Application dismissed
Decision of respondent to suspend practitioner's registration affirmed

Category:    B

Representation:

Counsel:

Applicant	:	Mr RA Vines
Respondent	:	Ms J McKenzie

Solicitors:

Applicant	:	N/A
Respondent	:	Minter Ellison

Cases referred to in decision(s):

Bar-Mordecai v Hillston [2004] NSWCA 65

Bernadt v Medical Board of Australia [2013] WASCA 259

Cheema v Medical Board of Australia [2020] SACAT 40

Farshchi v Chinese Medicine Board of Australia [2018] VCAT 1617

Freeman and Medical Board of Australia [No 2] 2023 WASAT 27

George v Rockett (1990) 170 CLR 104

Lee v Medical Board of Australia [2022] WASAT 28

Medical Board of Australia v Adams [2023] WASCA 41

Medical Board of Australia v CDA [2023] ACAT 64

Medical Board of Australia v MBO [2015] ACAT 69

Medical Board of Australia v Sami [2022] VSC 90; (2022) 66 VR 513

Medical Board of Australia v Skehan [2011] VCAT 2424

Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701

O'Sullivan v Farrer (1989) 168 CLR 210

Re a Medical Practitioner [1995] 2 Qd R 154

WD v Medical Board of Australia [2013] QCAT 614

Webb v Tang [2023] WASCA 119

Williams v Medical Practitioners Board of Victoria [2008] VCAT 1784

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. On 6 June 2022,[1] the Medical Board of Australia (respondent) decided to take immediate action (IA Decision) under s 156 of the Health Practitioner Regulation National Law (National Law),[2] to suspend the applicant's registration as a medical practitioner on and from 7 June 2022.[3]

   [1] The decision on 6 June 2022 (Respondent's Book of Documents (RBOD), Volume 1 (Exhibit 1), page 737) was remade on 14 June 2022 (RBOD, Volume 1, Page 762), due to an oversight on the original date in omitting to consider a letter from Dr G dated 3 June 2022.

   [2] The National Law is given effect in Western Australia by the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law Act), s 4.

   [3] RBOD, Volume 1 (Exhibit 1), page 737.

2. By application lodged with the Tribunal on 5 July 2022, the applicant sought review of the IA Decision by the Tribunal pursuant to s 199(1)(j) of the National Law.[4]

   [4] Para (j) of s 199(1) of the National Law provides a right of review of a decision by a 'health panel' to suspend the person's registration.  That is not the case here.  The decision to suspend was made by the respondent, which is a National Board.  The relevant subsection is s 199(1)(h) of the National Law.  The issue was not raised by either of the parties and we have proceeded on the basis that the error is, in effect, a typographical one.  To the extent that it is necessary to do so, we grant leave to the applicant to amend his application accordingly.

3. The IA Decision was made on the basis of a notification by a former patient of the applicant (NH) who described an intense personal (but non-sexual) relationship between herself and the applicant, which had broken down shortly prior to the notification.

4. The former relationship between NH and the applicant provided the basis for the IA Decision and formed the main focus of the respondent's case before us.  However, in addition, the respondent's case before the Tribunal also relies on allegations of what, if proven, would likely be unprofessional behaviour in the form of abusive, insulting and threatening communications by the applicant:  (1) to a pharmacist (Mr M); (2) to an independent expert engaged by the respondent as part of its investigations into the applicant's conduct (Dr J); and (3) to the respondent and Tribunal (albeit primarily about NH) following NH's notification.

5. The applicant has made certain concessions regarding some of the written material relied upon by the respondent.  He has also formally acknowledged that the material before the Tribunal is sufficient to warrant the taking of immediate action.

6. The dispute between the parties, therefore, is limited to the appropriate form of immediate action that should be taken.  The respondent insists that the only suitable form of immediate action is the suspension of the applicant's registration to practise medicine.

7. The applicant, in contrast, submits that the appropriate form of immediate action is the imposition of conditions on his registration.  Specifically, he submits that he should be allowed to continue to practice medicine subject to conditions such that his practice is supervised, and he is prohibited from communicating with NH and, indeed, any other patient outside the clinical context.

8. In our view, the imposition of conditions would not be an appropriate and suitable response to the risk posed by the applicant.  In our view, the correct and preferable decision is to affirm the IA Decision and suspend the applicant's medical registration.

Statutory regime and legal principles

1. The principal statutory provision with which we are concerned is s 156 of the National Law.  That provides as follows:

   (1)A National Board may take immediate action in relation to a registered health practitioner … registered in a health profession for which the Board is established if –

   (a)the National Board reasonably believes that —

   (i)because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and

   (ii)it is necessary to take immediate action to protect public health or safety;

   or

   …

   (e)the National Board reasonably believes the action is otherwise in the public interest[.]

2. The term 'immediate action' is defined by s 155 of the National Law, which provides that the term means, amongst other things, 'the suspension, or imposition of a condition on, the health practitioner's … registration'.

3. The applicant, being a 'person who is the subject of' a decision by a National Board (such as the respondent) 'to suspend [his] registration' has a right of review pursuant to s 199(1)(h) of the National Law.[5]

   [5] Section 199 provides for an 'appeal' rather than a 'review', but s 11 of the National Law Act provides that, in this State, 'appeal' is a reference to a review of the decision as provided under Pt 3, Div 3 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

4. It is relevant to note here that while the IA Decision relied solely on s 156(1)(a), before us the respondent now relies on s 156(1)(e) as well.

5. The applicant took no objection to this course but, in any event, such a course is not unusual and is consistent with the role of the Tribunal exercising its review jurisdiction.[6]

   [6] Subject only to the obligation to ensure that all parties are afforded natural justice: Freeman and Medical Board of Australia [No 2] 2023 WASAT 27, at [197] – [206].

6. The legal principles relevant to the Tribunal's exercise of its review jurisdiction in this regard are as follows:

   (a)It is necessary to identify with precision what it is that must be the subject of the respondent's and, on review, the Tribunal's reasonable belief.[7]

   [7] Bernadt v Medical Board of Australia [2013] WASCA 259 (Bernadt) at [65] (McLure P). There is nothing in the reasons of either Newnes JA or Murphy JA that suggests that they disagree with this aspect of her Honour's reasons.

   (b)Section 156(1)(a) provides for three components that must be the subject of a reasonable belief to justify the taking of immediate action:

   (i)(1)        because of (that is, by reason of) the practitioner's conduct, performance or health

   (2)the practitioner poses a serious risk to persons; and

   (ii)it is necessary to take immediate action to protect public health or safety.[8]

   [8] Bernadt at [65].

   (c)'Belief' is an inclination of the mind towards assenting to, rather than rejecting, a proposition.[9]  The 'belief' of a person is ordinarily a conclusion reached after the probabilities have been weighed.[10]  A person's mind will not incline towards accepting a proposition of fact if the person's mind inclines towards rejecting the proposition of fact or if the person's state of mind is that he or she is unable to arrive at a conclusion one way or the other.[11]

   [9] George v Rockett (1990) 170 CLR 104 (Rockett) at [14]; Webb v Tang [2023] WASCA 119 at [94].

   [10] Webb v Tang at [95].

   [11] Webb v Tang at [98].

   (d)A 'belief' is more than a 'suspicion' and is ordinarily less than 'positive knowledge'.  The information available to a person who forms a belief may be from external sources, including hearsay, which the person may be unable independently to verify.[12]

   (e)The grounds which can reasonably induce a belief may, depending on the circumstances, leave something to surmise or conjecture.[13]

   (f)'reasonable belief' or 'belief on reasonable grounds' requires a consideration of context.[14]

   (g)A 'reasonable' belief imports an objective criterion.[15]  It requires the existence of facts which are sufficient to induce the belief in a reasonable person.[16] There must be proven objective circumstances sufficient to justify the belief.[17]

   (h)We need not find that the applicant in fact poses a serious risk to persons or that immediate action is in fact necessary to protect public health.  Rather, we need only determine whether we hold a reasonable belief (as defined above) as to those matters.[18]  As Horneman-Wren J said in Oglesby:

   … it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future.  In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons.  If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons. [19]

   (h)Our task does not make it necessary for us to decide what, in fact, has occurred.  Rather, the inquiry is directed to the future; the focus is upon the nature and extent of risks to persons and the steps to be taken to address such risks.[20]

   (i)That is, at least in the ordinary course, the task of reaching a reasonable belief as to risk does not require an enquiry into the merits of the allegation made against the practitioner.  Rather, it will be sufficient to know what the allegation is, what material supports it and whether the allegation is denied.[21]

   [12] Webb v Tang at [96].

   [13] Rockett at [14].

   [14] Webb v Tang at [99].

   [15] Webb v Tang at [106].

   [16] Bernadt at [173] (Newnes JA).

   [17] Bernadt at [66] (McLure P).

   [18] Bernadt at [171] (Newnes JA).

   [19] Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701 at [20].

   [20] Medical Board of Australia v Adams [2023] WASCA 41 (Adams) at [93]. See also Medical Board of Australia v Sami [2022] VSC 90; (2022) 66 VR 513 (Sami) at [23], [106] and [174].

   [21] Adams at [93]. See also Sami at [101].

7. In WD, Horneman‑Wren J set out the following principles, which appear to us to be consistent with the above and which have been previously applied by this Tribunal:[22]

   [22] Rao and Medical Board of Australia [2022] WASAT 55 (Rao) at [42]; Freeman at [21].

   1.an immediate action order does not entail a detailed enquiry;

   2.it requires action on an urgent basis because of the need to protect public health and safety;

   3.the taking of immediate action does not require proof of the conduct, but rather whether there is a reasonable belief that the registrant poses a serious risk;

   4.an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;

   5.the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk;

   6.the material available should be carefully scrutinised in order to determine the weight to be attached to it;

   7.a complaint that is trivial or misconceived on its face will clearly not be given weight;

   8.the nature of the allegations will be highly relevant to the issue of whether the order is justified. [23]

   [23]WD v Medical Board of Australia [2013] QCAT 614 at [8]. See also Cheema v Medical Board of Australia [2020] SACAT 40 at [43] and Rao at [42].

8. While most of the above principles were developed in the context of s 156(1)(a), they also apply to s 156(1)(e) as to the phrase 'reasonable belief'.

9. That section, however, is concerned with the public interest rather than any risk to persons.

10. The phrase 'the public interest', 'when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable'.[24]

    [24] O'Sullivan v Farrer (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ).

11. In Lee, this Tribunal held that the public interest under s 156(1)(e) may warrant immediate action 'having regard to various public interest considerations, including the protection of the public, or maintenance of public confidence in the medical profession'.[25]  It also adopted the VCAT's discussion of the public interest in Farshchi as follows:

    The public interest includes maintenance of a regulatory system which responds in a fair and proportionate manner when allegations are made.

    There is a public interest in members of health professions, in whom training and expenditure has been made, being able to practise.

    There is a public interest in "area of need" professionals being able to practise.

    There is a public interest in proportionality, particularly where a matter is unlikely to finalise quickly.

    There is a public interest in ensuring immediate action is only taken when it is necessary to do so. …[26]

    [25] Leev Medical Board of Australia [2022] WASAT 28 at [30].

    [26] Farshchi v Chinese Medicine Board of Australia [2018] VCAT 1617 at [71] – [75], adopted with approval in Lee at [47].

12. Those aspects of the public interest are, plainly, consistent with the objectives and guiding principles of the national registration and accreditation scheme, which the National Law implements.[27]  We also accept the respondent's submission that the list taken from Farshchi ought not to be seen as exhaustive.[28]

    [27] National Law, s 3(2) and s 3(3).

    [28] Respondent's Amended Outline of Opening Submissions, 15 September 2023, para 39.

13. As noted above, the applicant has made certain acknowledgements and concessions. Specifically, he has acknowledged that he sent and received very large quantities of text messages to and from NH and that the record of those text messages in Volume 2 of (RBOD) is largely accurate and complete.

14. In addition, although he has not formally acknowledged the accuracy or otherwise of other communications, the case put on his behalf proceeded on the basis that they were made.  Mr Vines, who appeared for the applicant, did not suggest that there was any dispute that the messages had been sent and appeared to implicitly acknowledge that those other communications had been made by his submissions characterising those communications in ways adverse to the applicant, such as 'offensive' and 'inflammatory'.[29]

    [29] Applicant's Outline of Submissions, 22 September 2023, paras 50 and 54.

15. That is not to say that we understand the applicant to accept that the communications before us represent a comprehensive picture as to what has occurred.  That is so particularly in the case of communications with Mr M,[30] the pharmacist, where we lack any real background or context to that dispute.

    [30] RBOD, Volume 1, pages 25 – 43.

16. It is to a degree unusual in cases of review of immediate action that the applicant/practitioner acknowledges or concedes that the behaviour in question actually occurred.  Rather, as the above principles suggest, in many cases the alleged conduct is denied and nothing more is said by the applicant.

17. Nonetheless, we have proceeded on the basis described in the above principles.  That is, we have sought to avoid making findings as to what has, in fact, occurred.  Rather, we have focussed on the assessment of risk that arises as a result of a consideration of the material as a whole.

18. Having said that, however, we have proceeded on the basis that each of the text messages and other communications apparently sent between the applicant and NH[31] were, in fact, sent and are, more or less, accurately recorded in the material before us.  We have also done so for the other communications (emails and texts) received by the Australian Health Practitioner Regulation Agency (AHPRA)/ the respondent,[32] the Tribunal,[33] Mr M[34] and Dr J,[35] which, on their face, have been sent by the applicant.

    [31] RBOD, Volume 1, pages 44 – 416; RBOD, Volume 2.

    [32] RBOD, Volume 1, pages 628 – 778; RBOD, Volume 3, pages 1 – 3.

    [33] RBOD, Volume 1, pages 779 – 852; RBOD, Volume 3, pages 4 – 12 and 18 – 601.

    [34] RBOD, Volume 1, pages 25 – 43.

    [35] RBOD, Volume 5, pages 2 – 8.

19. The above principles are applicable to all applications for review brought against decisions to take immediate action under s 156 of the National Law.  What follows is concerned with a subset of such matters, which concern an alleged breach of professional boundaries by way of a close personal relationship with a patient, which forms the primary basis for the respondent's case.

20. The issue of professional boundaries is clearly described in the Code of Conduct titled "Good medical practice: a code of conduct for doctors in Australia" (Code) prepared and published by the respondent and AHPRA.[36]

    [36] Exhibit 9.

21. As was held recently by the ACAT,[37] the Code 'sets out what is expected of all medical practitioners registered to practice medicine in Australia. A breach of the Code by a practitioner is a serious matter and has consequences.'[38]

    [37] The Australian Capital Territory Civil and Administrative Tribunal.

    [38] Medical Board of Australia v CDA [2023] ACAT 64 at [11].

22. Section 4.2.6 of the Code, under the heading 'Doctor‑patient relationships', states that a good doctor-patient partnership involves 'recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients in any way, including physically, emotionally, sexually or financially'.

23. Section 4.15 is headed 'Providing care to those close to you' and states as follows:

    Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship.  In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the patient and doctor.  In particular, medical practitioners must not prescribe Schedule 8, psychotropic medication and/or drugs of dependence or perform elective surgery … to anyone with whom they have a close personal relationship.

    In some cases, providing care to those close to you in unavoidable, for example in an emergency. Whenever this is the case, good medical practice requires recognition and careful management of these issues.

1. Section 10.2 is headed 'Professional boundaries'.  It states:

   Professional boundaries in medicine are the limits that define the relationship between a doctor and their patient. Professional boundaries are integral to a good doctor–patient relationship. They promote good care for patients and protect both parties. Good medical practice involves:

   10.2.1 Maintaining professional boundaries.

   10.2.2 Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian, spouse or the parent of a child patient. The Board has developed Guidelines: Sexual boundaries in the doctor–patient relationship, which apply to all doctors.

   10.2.3 Avoiding expressing your personal beliefs to your patients in ways that exploit their vulnerability or are likely to cause them distress.

2. As the reference in cl 10.2.2 of the Code suggests, the most common form of breach of professional boundaries involves sexual relationships. But as is clear from the above quoted passages, the relevant clauses of the Code are not restricted to relationships of a sexual nature and there are cases in which non-sexual relationships have been found to be inappropriate.[39]

   [39] See for example, Medical Board of Australia v Skehan [2011] VCAT 2424 (Skehan);  Williams v Medical Practitioners Board of Victoria [2008] VCAT 1784; Medical Board of Australia v MBO [2015] ACAT 69.

3. The following passages are taken from one such case – Skehan.  They also focus on sexual relationships but, again, their terms extend beyond that situation.

   67.… the Board has for many years made clear what is and is not appropriate professional conduct for doctors in their dealings with patients.  These must be taken to be well-known by the medical profession.

   [The VCAT then set out relevant passages from several publications regarding professional boundaries.]

   73.The significance and importance of these principles was well set-out in 1995 by Dowsett J in Re a Medical Practitioner.[40]  His Honour was sitting as the Medical Assessment Tribunal in Queensland.[41]  Having assessed a number of authorities, his Honour said:

   [40] Re aMedical Practitioner [1995] 2 Qd R 154, 163. [Reference in original].

   [41] The case concerned a medical practitioner who maintained a sexual relationship with his patient. [Reference in original.]

   These cases identify a number of themes running through the traditional approach to misconduct of this kind by medical practitioners.  They are:

   1.The practice of medicine involves intimate access to the body and psyche of the patient.

   2.Such practice may also involve access to the patient's home.

   3.A medical practitioner is therefore in a position of special trust toward and power over a patient.

   4.The need for medical care and the sympathetic way in which such care is likely to be provided render the recipient at risk of becoming emotionally involved with and/or dependent upon the provider.

   5.In some circumstances, exposure to such risk may extend to persons close to the patient, for example to a parent of an infant patient or the spouse of a patient.

   6.A medical practitioner must be aware of these risks and ensure that his or her conduct does not aggravate the position, that no advantage is taken of any such susceptibility, and that there is no abuse of the practitioner's special position.

   7.A medical practitioner who becomes aware that a patient has developed a romantic attachment to him or her must take steps to sever that attachment.  Normally, the doctor and patient relationships should be terminated.

   8.A medical practitioner who becomes romantically attached to a patient should realise that his or her own objectivity and capacity to provide appropriate treatment have been impaired and terminate the doctor and patient relationship.

   9.Where the romantic attachment is solely on the patient's side, whilst it will be unwise to continue treating the patient, it will not necessarily be professional misconduct to do so, save where the efficacy of continued treatment may be impaired by the attachment or where the patient may suffer further harm.

   10.Where there is romantic attachment on the part of the practitioner, it may be professional misconduct not to terminate the doctor and patient relationship, even in the absence of any acts of intimacy.  Each case must be considered on its merits.  The considerations referred to in paragraph 9 will again be relevant.

   11.It is professional misconduct to engage in acts of intimacy with a patient whilst the doctor and patient relationship continues.

   12.It is professional misconduct to exploit a discontinued professional relationship.  Thus a medical practitioner should only commence or continue an association with a former patient if there can be no suggestion that he or she is exploiting a dependency created in the course of the professional relationship.

   13.From the point of view of the profession as a whole and from the public viewpoint, it is as important that the appearance of propriety be maintained in each doctor and patient relationship as that such propriety actually exist.  Thus it will be professional misconduct for a medical practitioner to permit the appearance of a romantic relationship with a patient or to lead a patient to believe that he or she has an interest in establishing such a relationship.

   14.As with all misconduct, individual examples may vary in severity.  The more serious the misconduct, the more likely it will be that the interests of the public will dictate removal from the register.  It cannot be said that every case of misconduct of this kind will dictate such removal.

   15.These comments apply to male and female medical practitioners, both general practitioners and specialists.  The nature of a particular speciality may render the misconduct more serious (e.g. psychiatrists and gynaecologists).

   16.These observations apply to both heterosexual and homosexual relationships and conduct.

   17.Whilst these observations generally refer to relationships with a patient, they also apply to relationships with persons closely associated with patients, particularly parents of infant patients and spouses of patients.

   18.The gravamen of this misconduct is breach of trust, misuse of power and exploitation of vulnerability.  Sexual misconduct is only an example of such misconduct.

   The above observations should not be taken as binding statements of law or principle.  They are rather general observations based upon submissions made to the Tribunal and a consideration of some of the cases, designed to expose my thinking leading up to the judgment in this case rather than as a guide for medical practitioners, although hopefully, they may also serve that purpose.

   74.These helpful observations were particularly relied upon by the applicant.  The Board correctly submitted, 'The onus is, and must be, upon the doctor in such circumstances to appreciate the risks, guard against them, and resist such progression' from a professional doctor/patient relationship to a romantic relationship.

   …

   78.Significantly, and correctly, the respondent noted that the professional guidelines proscribe a sexual relationship with a former patient, in any circumstances, if it breaches the trust the patient had placed in the doctor.

   79.While Ms Wood said she felt an equal in the friendship she had with Dr Skehan, she conceded he was on a 'higher pedestal' in the doctor/patient relationship.  [Reference omitted.]  As noted by the Court of Appeal in New South Wales, the 'Doctor-patient is a classic presumptive relationship of influence'.[42]   The nature and extent of such influence, and the degree to which it will have impacted upon any subsequent improper relationship which forms between a doctor and his or her former patient, will always remain a question of fact for determination.

   80.Obviously, the existence of an inappropriate personal or emotional relationship between a doctor and patient – whether it involves physically intimate conduct or not – will always transgress the professional boundaries.  Such a situation will almost always compromise the quality and nature of the professional relationship; at the very least it will involve a serious breach of trust; and it may, in addition, adversely impact upon a professional relationship the doctor has with a family member or close friend of the patient.  The seriousness of such a professional breach of ethics will depend on a consideration of all relevant circumstances, including factors personal to the doctor and the patient.  In such a situation, protection of the public and general deterrence are matters of first importance.

Applicant's background

[42] Bar-Mordecai v Hillston [2004] NSWCA 65 at [12] per the Court (Mason P, Tobias JA and Davies AJA). [Reference in original].

1. The applicant was raised and educated in South Africa.  It would appear that, after his education was completed, he practised medicine in South Africa and in New Zealand before moving to Australia where he has practised since 1985.  He has been a fellow of the Royal Australian College of General Practitioners since 2009.[43]  He submits, and we accept, that throughout that time (i.e. until NH's notification) he has practised without complaint or concern.

   [43] Respondent's Amended Substituted Statement of Issues, Facts and Contentions (Respondent's SIFC) of 15 September 2023, paras 1 and 2.

The factual allegations

The boundary transgressions with NH and her family

1. The record of text messages between the applicant and NH put before us start at the end of January 2022.

2. The respondent submits that, at the time, NH was a vulnerable patient on the basis of her personal circumstances.  For the purpose of identifying the risk presented by the applicant's conduct, and on the basis of the material before us, we accept that submission for the following reasons.

3. As was noted by the VCAT in Skehan, all doctor-patient relationships involve an imbalance of power.  The particularly vulnerable nature of NH exacerbates the seriousness of the applicant's breach.

4. The material before us suggests that between 12 April 2021 and 27 March 2022, NH attended on the applicant as a patient 45 times, just a little less than once a week.[44]  As is discussed in a little more detail below, during that time the applicant was prescribing her drugs of dependence, which cl 4.15 of the Code prohibits where there is a personal relationship between doctor and patient.

   [44] Respondent's SIFC, para 10(a); the applicant admits this at para 4 on his SIFC dated 22 September 2023.

5. NH's two daughters (KB and AB) were also the applicant's patients.  The material before us suggests that they too were particularly vulnerable.  KB was at one stage diagnosed with an eating disorder and AB suffered from bullying at school with consequential mental health issues.[45]  KB attended 13 consultations in the 12 months to March 2022 and AB attended 18 consultations in the 13 months to March 2022.

   [45] Respondent's SIFC, paras 7 – 9; the applicant admits that this paragraph at his SIFC, para 4.

6. For those reasons alone, we would describe NH as being particularly vulnerable.  However, in addition, she was financially vulnerable.  That conclusion follows from text messages that are described in more detail below.

7. Those text messages are just some of an extraordinary number of text messages that passed between them in a very short period of time.

8. As noted above, the transcribed versions of the texts sent between them between 26 January 2022 and 28 March 2022 constitute Volume 2 of RBOD.  Printed in landscape, that record occupies 222 pages.

9. Ms McKenzie who appeared for the respondent, advised (without demur from the applicant) that a total of 2,566 text messages were sent between those dates, of which 1,122 texts were sent by the applicant at an average of approximately 18 texts per day.

10. It appears from the earliest of those texts that there was already, at least, a nascent relationship between the applicant and NH on 26 January 2022.  A text sent on that date indicates that a new phone was being used by the applicant which NH did not recognise.[46]

    [46] RBOD, Volume 2, page 2 rows 2 – 5.

11. Three days later the applicant asked NH to confirm 'which number is best for Rob and Chrissy' who, it would appear from the following texts, were NH's landlords.[47]  Ten minutes after that the applicant sent a further text which contained a draft message to Rob and Chrissy in which the applicant states that he was willing to make payments to them by way of back payment of NH's rent of $500 per week, as well as pay NH's current or ongoing rent.  In doing so, he states that he will need to rearrange his finances.  He concludes by stating that he will 'guarantee rent payments for at least a year'.[48]

    [47] RBOD, Volume 2, page 3 rows 7 – 8.

    [48] RBOD, Volume 2, page 2 row 8.

12. In our view it is significant that even at this early stage the text messages suggest that both parties were aware that what was occurring was in breach of the applicant's professional obligations.  NH responded to the text message containing the draft text to her landlords by suggesting that the applicant not identify himself as her GP but, rather, simply say that he was offering to make the payments on her behalf.  In a later text, she explains that 'putting on behalf of our family instead of who you are eliminates any issues for you in your job'.[49]

    [49] RBOD, Volume 2, page 2 rows 7 – 13.

13. The above text messages exchange provides a useful example of communications between the applicant and NH that were both intimate (in the sense that the applicant was involved in matters deeply personal to NH beyond her medical care) and which committed the applicant to significant financial contributions to NH.

14. As to the latter, we have before us five pages of screenshots of deposits received from the applicant into NH's bank account between 2 February 2022 and 1 April 2022, the total of which exceeds $7,000.[50]  In addition to those cash payments, the applicant elsewhere acknowledges that he purchased meals for NH and her family including meals out at restaurants.[51]

    [50] RBOD, Volume 1, pages 408 – 413.

    [51] See, for example, RBOD, Volume 2, pages 7 – 9 rows 76 – 77, 90, 100, and page 25 row 299.

15. The offers by the applicant to purchase food for NH began, together with those concerning the payment of rent, almost immediately.  On 29 January 2022 the applicant suggested that NH should ask her Chaplain about assistance from a church benevolent organisation.[52]  When NH answered that she had not had much involvement with the church for a couple of years, the applicant asked whether she 'and the girls have enough money for food' to which NH replied that she had received a $60 Woolworths voucher from the Salvos the previous day.[53]  On 30 January 2022 the applicant again asked whether she 'and the Princesses have enough money for food today' and when told that they 'live week to week foodwise' he offered a 'lovely brunch or lunch for U and the girls at your favourite restaurant'.[54]

    [52] RBOD, Volume 2, page 3 row 29.

    [53] RBOD, Volume 2, page 4 rows 33 – 34.

    [54] RBOD, Volume 2, page 4 rows 43 – 46.

16. In our view, the applicant's conduct in offering financial assistance appears designed to (or is at least capable of) building trust, confidence and reliance in and on the applicant by NH.

17. Equally there are instances where the applicant threatened to withhold previously offered financial assistance in apparent retribution for NH's actions with which he disagreed or by which he felt slighted.

18. For example, on 14 March 2022, NH first told the applicant that she had been seeing a man for the previous year, to which the applicant responded by telling her that it would 'be so good if he can pay your rent and extra costs from now on too, as I really can't anymore'.[55]  He did the same on 22 March 2022, after he formed the view that NH was transferring her medical care to his former employer, his relationship with whom he described as 'intensely adversarial'.[56]

    [55] RBOD, Volume 2, page 173 rows 2138 – 2146.

    [56] RBOD, Volume 2, page 200 row 2308.

19. The offer of financial support to NH, and the threat of its withdrawal if NH behaves in a way that disappoints him, is in our view behaviour that appears designed to (or is at least capable of) develop control over NH by the applicant.

20. Similar to the offer of financial support is the offer/provision of emotional support.  That support was offered/provided by the applicant to NH through the frequent provision of compliments to both NH as to her parenting, and to her daughters, as to their intelligence and beauty.  Two examples will suffice.

21. First is the applicant's frequent use of the epithet 'princess' when referring to NH's daughters.  In her oral submissions Ms McKenzie advised (without demur from Mr Vine) that the text message record includes more than 130 references by the applicant to NH's daughters as 'princesses', usually associated with an adjective such as 'beautiful'.

22. Second is the use of the term 'godfather' to describe the applicant's relationship to NH's daughters.

23. The applicant insists in various communications made after NH's notification that the suggestion that he refer to himself in that way came from NH's daughters.  The record of the text messages is unclear in that regard.

24. The first reference to the term appears on 29 January 2022 in a text from NH to the applicant where, immediately after referring to the applicant's proposed payment of rent, she says 'I'm sure they will be ok with you being the girls' Godfather.  I really don't want to cause any grief for you.  Having said that, you are absolutely The Boss (fist emoji) whatever you decide, I am eternally grateful for'.[57]

    [57] RBOD, Volume 2, page 3 row 19.

25. A couple of minutes later NH sent another text to the applicant saying that if 'you [the applicant] would allow me to officially make you the girl's Godfather – I would be honoured'.[58]  She then says in another text immediately following that 'even if it means we have to see another doctor.  We want to keep you for life'.  The applicant then writes that he would be 'very honoured to be the girls' Godfather'.[59]

    [58] RBOD, Volume 2, page 3 row 23.

    [59] RBOD, Volume 2, page 3 rows 24 – 25.

26. Again, the use of those terms by the applicant can reasonably be construed as designed to (or at least be capable of) build trust, confidence and reliance in and on him by NH and her daughters.

27. As was noted in Skehan, the doctor-patient relationship is 'a classic presumptive relationship of influence'.[60]

    [60] Skehan [79].

28. The applicant's conduct in offering and providing financial and emotional assistance appears to build on that existing relationship to create a relationship of trust and dependence by NH on the applicant in matters deeply personal to NH but external to the medical clinical function.

29. The inappropriate nature of the relationship is expressly acknowledged by NH in that text  described above in para 60 to the effect that she and her daughters may need to engage with a different doctor.[61]  In doing so, she (again) identifies the reality that the relationship represents a transgression of the applicant's professional boundaries.

    [61] RBOD, Volume 2, page 3 row 24.

30. Indeed, there are many examples within the text messages of both parties identifying the issue of his professional boundaries.  In some cases, the applicant has acknowledged a 'bending of the rules', while in others he has sought to reassure NH that the relationship is within appropriate bounds, including by telling her that he has sought advice in that regard from the Royal Australian College of General Practitioners.[62]

    [62] RBOD, Volume 2, page 90 row 1082; page 162 rows 1991 and 1997; page 196 row 2283; page 197 row 2285 and page 199 row 2292, page 201 row 2312; page 202 row 2319.

1. A further example of the apparently inappropriate relationship between the applicant and NH is the applicant's role in moving AB from a previous school to a new school.

2. That appears to have occurred at his suggestion as part of his advice regarding management of AB's mental health in the context of apparent bullying at the original school.

3. So much, of itself, may well be uncontroversial in a relationship otherwise characterised by appropriate professional boundaries.  However, it would appear that the new school was at a price range well outside NH's financial ability to pay, at least without the applicant's financial assistance, and that the applicant paid for AB's school fees, uniform and school laptop.

4. So much appears from the applicant's email to AHPRA of 30 March 2022 in which he both acknowledges that he had previously recommended to NH that she remove AB from the local school and that he had, at that stage, 'being paying for her school fees since November last year, as well as a new school uniform and a new laptop that she needed'.[63]

   [63] RBOD, Volume 1, page 628.

5. In addition to the risks associated with the relationship itself (as identified in the Code at cl 4.15 and Skehan at para 80), the dangers inherent in this particular arrangement should have been immediately apparent to the applicant as any breakdown in the relationship would, inevitably, have led to a withdrawal of the necessary financial support to maintain AB, a vulnerable child, at her new school.[64]  Despite those obvious risks to NH and AB, the applicant appears to have pursued the course of conduct which, again, appears designed to (or at least be capable of) increase the reliance and dependence of NH on the applicant.

   [64] In the end AB was withdrawn from the new school fairly soon after her enrolment which avoided that particular aspect of the ramifications of the breakdown of the relationship.

6. There are other examples of conduct by which the applicant appears to seek to further develop or entrench his relationship with NH.

7. Beginning in mid-February 2022, the applicant sent several requests of NH that she send him photos of her daughters.  On more than one occasion, she complied.[65]

   [65] RBOD, Volume 2, page 23 rows 270, 308 and 319.  We note that during the hearing, in response to a question from the Tribunal, Counsel for the respondent confirmed that its case was not that the applicant was 'grooming' NH to obtain access to her daughters.

8. In early March 2022 the Applicant sought to arrange contact between his own family members and those of NH.  So, for example, on 1 March 2022, after AB was withdrawn from the 'new school', he texted NH and said that he and his 'lovely sons' can 'teach the girls and nurture them through life … '.  He suggested that his sons would be NH's daughters' 'God Brothers '.[66]

   [66] RBOD, Volume 2, page 126 row 1512.

9. There were also several texts sent that suggested a dinner between the two families should be or was being arranged.[67] The applicant also suggested that a romantic relationship might commence between his son and KB.[68]  He also offered on multiple occasions for his son to protect NH and her daughters from NH's former partner.[69]

   [67] RBOD, Volume 2, page 133 rows 1602, 1619, 2255, 2263 and 2264.

   [68] RBOD, Volume 2, page 211 rows 2452, 2456 – 2457 and 2476.

   [69] RBOD, Volume 2, page 163 rows 2015, 2020, 2086, 2103, 2109 and 2118.

10. From mid-March 2022 the applicant sought from NH the contact details of her daughters and her permission for him to be allowed to contact them directly.  That occurred on 14 March 2022,[70] 17 March 2022 (twice)[71] and 20 March 2022.[72]

    [70] RBOD, Volume 2, page 175 row 2148.

    [71] RBOD, Volume 2, page 187 row 2198 and 2200.

    [72] RBOD, Volume 2, page 194 row 2266.

11. By late March the text record suggests that NH was becoming wary of the applicant.[73]  On 27 March 2022, the applicant sent a very lengthy text in which, amongst other things, he undertook to pay NH $200 to $300 per week for as long as he possibly could.  He did so expressly on the basis that he had a 'fatherly responsibility' to care about her children's 'wellbeing and security as a father would naturally do'.[74]

    [73] One example can be seen in NH's response to the applicant's threat to withhold money on 22 March 2022, to which she responded by telling him to stop making, and then withdrawing his promises.  RBOD, Volume 2, page 200 rows 2308 – 2309.

    [74] RBOD, Volume 2, page 215 row 2476.

12. But in this case that offer to pay was subject to the condition that 'as a father [he] should be able to talk to and see [his] children whenever [he] want[s] or [his] daughters request, and when they feel the need to …'.  The text went on to propose a joint parenting plan be put in place.[75]

    [75] RBOD, Volume 2, page 215 row 2476.

13. Recognising the transgression of his own boundaries, the text included that:

    … 'whether or not I am the GP for the girls and/or yourself is completely irrelevant to me and to be quite honest it will be far less stressful and less complicated if I was not your or the girl's GP as well as having the responsibility as being the father, which is a conflict of interests to say the least, even between blood relatives!!'[76]

    [76] RBOD, Volume 2, page 215 row 2476.

14. Thus far we have avoided making findings as to the applicant's motivations for the conduct discussed.  Rather, we have merely observed that the conduct appears designed to foster trust and reliance and, in relation to the apparent threat to withdraw offers of finding, compliance.

15. Such an approach is consistent with the legal principles previously identified given the lack of substantive hearing and the testing of evidence.

16. Rather, we emphasise that our role is to identify future risk.

17. To that end, we make the following observations.

18. First, to repeat, on their face the text message exchanges appear to represent a course of conduct whereby the applicant builds on the existing clinical relationship to create a personal relationship in which NH trusts and relies on him but with the threat that his favour can and will be removed if she behaves so as to displease him.

19. Second, the text messages appear to evidence a very rapid escalation in the applicant's involvement in NH's family.  Although even the very early texts suggest that there is a degree of intimacy between the applicant and NH, within only a few weeks the applicant's perception of the relationship had progressed to the point where he considered himself sufficiently ensconced in NH's family such that he could effectively demand that he communicate directly with her daughters 'as a father' and that he jointly parent them with NH.

20. Third, that escalation occurred in circumstances where the applicant and NH both explicitly acknowledged in their texts to each other that the relationship represented a transgression of his professional boundaries.

21. Fourth, contrary to the principle that the burden rests with the doctor to appreciate the risks and avoid inappropriate relationships,[77] the applicant sought to shift the burden of resolving the issue of his breach of boundaries onto NH. In the text message noted above, at para 78 he acknowledges that he is in breach of professional boundaries, persists with the inappropriate 'demand' to insert himself into NH's family and suggests that NH remove the conflict by finding another GP.

    [77] Skehan, [74].

22. Fifth, the applicant's text (at para 78 above) identifies the reason why close, intimate relationships between patients and doctors are inappropriate.

23. The text speaks of the situation being stressful and complicated.  That is due to the blurring of professional boundaries.

24. And it presages the damage to come when the relationship fails.

25. As cl 4.15 of the Code recognises, there is a likelihood that there will be a 'discontinuity' of clinical care due to the breakdown of the relationship.

26. Further, in our view, there is a real risk that the development of a new relationship between the patient and another doctor (subsequent to the failed relationship) will be compromised due to the complicated emotions associated with the betrayal of the patient's trust by the previous doctor.  That is, the patient may well be reluctant, or find it difficult, to trust a new doctor due to the previous breach of trust by the former.

27. In the present case, such consequences appear to be in addition to the much more 'concrete' loss of financial and emotional support previously provided by the applicant.

28. The applicant has also engaged in a course of conduct directed towards NH subsequent to the relationship breakdown that can only be described as furious.

29. That conduct, described in more detail below, includes behaviour that was abusive, insulting, threatening, intimidatory and which appears retributive.

Conduct following breakdown in relationship

1. As noted above, the relationship between the applicant and NH ended in late March 2022.

2. On 30 March 2022, the applicant emailed AHPRA giving it 'a heads up' that NH may make a notification about him.  In a second email sent later that same day, he suggests that NH uses 'meth' and is psychotic, and he describes himself as the girls' 'adoptive father' and suggests AHPRA interview the girls 'with DCP'[78] involved.[79]

   [78] We understand DCP to be a reference to the Department of Child Protection, which is now known as the Department of Communities.

   [79] RBOD, Volume 1, page 630.

3. In early April 2022 the applicant sent NH emails in which he threatened Police involvement, alleging that she had 'scammed' him and, separately, said that he hoped that they 'can see eye to eye for [AB and KB's] best interests else I may have to ask DCP to arrange supervised access'.[80]

   [80] RBOD, Volume 1, pages 326 and 329.

4. In or about April 2022 the applicant also appears to have applied for a violence restraining order against NH.[81]

   [81] RBOD, Volume 1, page 667.

5. Most significantly, on 11 May 2022 the applicant submitted a 'mandatory report' to the Department of Communities.[82]  In the report, which he lodged as AB and KB's medical practitioner, he alleged that they were in 'moral danger' due to a number of allegations including that NH suffers from psychosis, that she uses illicit drugs, and that she has 'unprotected sexual intercourse with a large number of random men'.[83]

   [82] We understand that it is 'mandatory' for persons holding certain positions, including that of a medical practitioner, where they suspect child sexual abuse. 

   [83] RBOD, pages 716 – 726.

6. The respondent submits that none of those allegations had any basis in fact and the filing of that report was motivated by malice.  We accept the submission; there is nothing before us that provides a basis for the allegations and, at the hearing, Mr Vines did not suggest that the respondent's submissions in this regard lacked a proper factual basis.[84]

   [84] Cf Legal Profession Uniform Conduct (Barristers) Rules 2015, rules 61 and 65.

7. In this context, however, we note that the 'mandatory report' to DCP was made before the IA decision in June 2022.  It therefore falls outside the scope of submissions made by Mr Vines under the heading 'Post – IA Communications' which he described as including allegations against NH that were unfounded and/or unsubstantiated.

8. That distinction is, however, drawn by us rather than by or on behalf of the applicant and in those circumstances we have proceeded on the basis that the applicant accepts that those allegations are, at least, unfounded and/or unsubstantiated, as he accepts in relation to the 'Post‑IA Communications'.

9. The applicant also, in the period between NH's notification and the hearing, engaged in an extensive email writing campaign to both AHPRA and the Tribunal in which he, effectively, blamed NH for his breach of professional boundaries.

10. In her reply submissions at the hearing, Ms McKenzie invited us to turn to almost any of the 601 pages in Volume 3 of the RBOD, which contains that correspondence.  In doing so, she submitted that we would find correspondence from the applicant which demonstrates his ongoing blame of NH for the situation in which he currently finds himself, i.e. subject to the IA Decision, the respondent's ongoing investigation of him and his conduct, and these proceedings.

11. Having undertaken the exercise invited by Ms McKenzie, we are satisfied that the correspondence engaged in by the applicant demonstrates precisely what she submitted.

12. We also note that the correspondence often contains material and allegations that can fairly and reasonably be described as bizarre.

13. Dr A, who was engaged by the respondent to examine the applicant, declared that he 'did not find any evidence' that the applicant 'suffers from any psychiatric disorder'.[85]

    [85] Report of Dr A titled:  Specialist Medical Examination, Name: Ian Marcus; 5 September 2022: page 13 (filed by the applicant on 19 September 2022).

14. In deference to Dr A's conclusion we have not taken this aspect of the communications into account when assessing the risk associated with the applicant's conduct.

Applicant's conduct as to Mr M

1. In early May 2022, Mr M lodged a notification with the respondent complaining of abusive and threatening communications from the applicant.  Mr M is a pharmacist with whom the applicant appears to have had a falling out.

2. Mr M's notification was not the subject of consideration by the respondent when it made the IA Decision, but the respondent now relies upon it.  No objection to that course was taken by the applicant who was, in any event, on notice since the respondent filed its original SIFC in September 2022.

3. Mr M's notification to AHPRA details four incidents which can be briefly described.

4. The first concerns two phone calls on 27 January 2022 in which it is alleged that the applicant shouted and swore at Mr M.[86]

   [86] RBOD, Volume 1, page 25.

5. The second is said to have occurred on 19 February 2022 and alleges that the applicant called the pharmacy at which Mr M works and asked an assistant to identify the pharmacist on duty. When advised that it was Mr M that was on duty, he declined to speak to Mr M and, instead, asked the assistant to fill a script for hypnotic sedatives.  When told by the assistant that she could not do that without speaking to Mr M, the applicant then shouted at her and refused her several invitations to speak with Mr M.[87]

   [87] RBOD, Volume 1, page 26.

6. The third concerns a discussion between the applicant and two owners of the pharmacy at which Mr M worked. During that discussion the applicant is alleged to have said that 'he would make the situation go away and forget about it' if the owners paid him $10,000.[88]  The notification does not make clear what 'the situation' is between Mr M and the applicant, although a document filed by the applicant on 19 October 2022 assists.  While titled as the applicant's SIFC, it takes the form of a letter addressed to the respondent's solicitors.

   [88] RBOD, Volume 1, page 27.

7. Paragraph 8 appears to be addressed to Mr M's notification. His confused and confusing.  It appears to allege that Mr M had administered the 'wrong' vaccine to a patient such that the applicant refused to send patients to the pharmacy.  The applicant then says that he 'called a meeting' with the pharmacy owners who, at that meeting, asked him 'what they could do' to which he responded by inviting them to sack Mr M and, when that was rebuffed, by 'joking' that they should pay him $10,000.

8. The fourth alleges a series of events that started when a patient of the applicant attended the pharmacy and offered Mr M his phone with the applicant on speaker.  When Mr M identified himself, the applicant swore at him several times and told him he did not want to speak to him.[89]

   [89] RBOD, Volume 1, page 28.

9. The day after that phone call, the applicant sent an email to the pharmacy addressed to Mr M the subject line of which was:

   'WATCH OUT MATE, YOU ARE SKATING ON THIN ICE THREATENING TO SPREAD BAD KARMA TO MY CLINIC SO I AM WARNING YOU IN A MAJOR WAY'.[90]

   [90] RBOD, Volume 1, page 29.

10. The email then begins by naming Mr M as 'A Prick' and says, amongst other things, that the applicant has 'major complaints' about Mr M's conduct and that he has patients that will 'prepare affidavits if I ask them to'.  He later threatens to sue Mr M and 'share' his concerns with AHPRA should Mr M report the applicant to AHPRA.  The email includes the following:

    DON'T YOU DARE GO NEAR MY NEW MEDICAL CENTRE OR ELSE YOU ARE GOING TO REGRET IT IN A MAJOR WAY, YOU DISGUSTING PRICK.  TRUST ME.  THAT IS NOT A THREAT, IT IS A PROMISE.  YOU WILL PAY FOR IT IN A MAJOR AND PUNISHING WAY.  I HAVE HIRED A CRIMINAL LAWYER TO PRETECT (sic) ME FROM PRICKS LIKE YOU.'[91]

    [91] RBOD, Volume 1, page 29.

11. That email was then followed by an email to one of the pharmacy owners in which the applicant says that Mr M 'started threatening to say bad things about me to my new workplace' and that if he does he will sue Mr M for defamation.  The applicant then says that he will 'forgive him and forget this last incident' if Mr M pays his outstanding bill at the pharmacy which, at that stage, was approximately $1,400.[92]

Communications to Dr J

[92] RBOD, Volume 1, pages 32 – 33.

1. The respondent also relies on communications from the applicant to Dr J whom the respondent engaged to prepare a report as part of its investigations into the applicant.

2. Dr J conducted a review of the applicant's conduct which, amongst other things, reached findings that were critical of the applicant's clinical treatment of NH and her daughters.  For present purposes it is necessary only to refer to two aspects of that criticism:  Dr J found that the applicant was inappropriate in his prescription of drugs of dependence to NH and that he failed to refer NH to other treating medical professionals when he should have done so.[93]

   [93] RBOD, Volume 4, pages 2 and 7.

3. The applicant disputes both criticisms.

4. However, in relation to the findings as to the prescription of drugs of dependence, we do not understand the respondent to rely on that finding in support of a submission in these proceedings that the applicant did, indeed, engage in professional misconduct by the inappropriate prescription of drugs of dependence.[94]

   [94] ts 43 – 46, 12 October 2023; ts 108 – 109, 13 October 2023.

5. Rather, the respondent's case in these proceedings is no more than that Dr J's conclusion provides an example of the type of risk that accrues when doctors breach their professional boundaries.  That is, the respondent's case is that one of the risks that flows from a doctor's transgression of professional boundaries is that necessary objectivity in the clinical treatment of their patient may be lost.[95]  That risk is particularly acute in the prescription of drugs of dependence, which is presumably why cl 4.15 of the Code addresses it specifically.

   [95] ts 43 – 46, 12 October 2023; ts 108 – 109, 13 October 2023.

6. We accept the respondent's submission that the loss of professional objectivity is a risk associated with the transgression of professional boundaries.  As the VCAT held in Skehan, an inappropriate personal or emotional relationship 'will almost always compromise the quality and nature of the professional relationship.'[96]

   [96] Skehan, [80].

7. The second aspect of Dr J's conclusion, the failure to properly refer NH to other medical practitioners, was fiercely disputed by the applicant in a series of text messages which are contained in Volume 5 of the RBOD.  Similarly, the respondent relies upon those messages in these proceedings and not the alleged failure to properly refer NH to other practitioners.

8. The applicant's submissions in this regard state that his anger and frustration at the IA Decision, the delay at the matter coming to hearing, and his disagreement with the findings 'permeates' these communications.[97]  In that way, the applicant implicitly acknowledges that they were made and are accurately recorded.

   [97] Applicant's Outline of Submissions, para 52.

9. He acknowledges them (as part of what the submissions describe as the 'Post IA Communications') to be 'emotive and, at times, offensive'.[98]

   [98] Applicant's Outline of Submissions, para 54(a).

1. Amongst other things, the applicant threatens to put Dr J 'behind bars' and he calls Dr J a 'disgusting incompetent thickhead' (later 'corrected' to a 'freakhead'), a 'disgusting spruiker' and a 'disgusting fighead'.  The last description was followed by a statement that the applicant was using voice recognition 'but I bet you get the jist (sic) of it'.  The applicant also texted the following to Dr J:

   'If you don't come clean with me and this is not a threat, it's a promise for the sake of the trees that I'm gonna put you behind bars in the boneyard you disgusting faggot'.[99]

   [99] RBOD, Volume 5, page 6.

2. Those communications were, in our view, correctly acknowledged by the applicant as, at least, offensive. In our view they are also abusive, insulting and threatening.

3. The same can be said of the communications with Mr M.

4. In both cases the language used was utterly inappropriate for communications between professional colleagues.  Equally, it seems to us uncontroversial to observe that the use of threats, and suggestions that considerable sums of money be paid, are thoroughly inappropriate means by which to seek to resolve differences of opinion between professional colleagues.

The parties' submissions

The applicant's case

1. The applicant's submissions acknowledged that:

   (a)his relationship with NH represented a transgression of his professional boundaries;[100]

   (b)his post-relationship conduct involved 'disparaging remarks and unfounded complaints [and] allegations' about NH which, while they may be explained by the applicants' sense of grievance, cannot be excused;[101]

   (c)his communications to Mr M were 'offensive and or intimidatory' and represent 'wrongdoing';[102]

   (d)his post notification communications with AHPRA and the Tribunal (and Dr J) contain language that is offensive and make allegations concerning NH and also Mr M and AHPRA/the respondent that are 'unfounded and or unsubstantiated';[103]

   (e)the material before us is sufficient to warrant the taking of immediate action.[104]

   [100] Applicant's Outline of Submissions 22 September 2023, para 15.

   [101] Applicant's Outline of Submissions, paras 31 – 33.

   [102] Applicant's Outline of Submissions, paras 38 – 39.

   [103] Applicant's Outline of Submissions, para 54.

   [104] Applicant's Outline of Submissions, paras 7, 21 and 57.

2. However, it is put by the applicant that:

   (a)there is no prior history of boundary transgressions;[105]

   (b)the boundary transgressions are largely confined to NH[106] and he has not communicated with her directly since before the IA Decision was made;[107]

   (c)the 'transgression of appropriate boundaries was motivated by altruism';[108]

   (d)the post-relationship communications regarding NH are the product of her notification, the resulting IA Decision and this review, such that there is not a high risk of similar conduct occurring in relation to others;[109]

   (e)the communications with Mr M appear as a 'relatively isolated incident' rather than as a 'broader pattern' and the applicant has previously acknowledged the 'wrongdoing';[110]

   (f)the post notification communications with AHPRA and the Tribunal are, to some degree, explained by the delay (of ~15 months) associated with bringing this review application to hearing, albeit the applicant is acknowledged to have made a 'significant contribution' to that delay;[111] and

   (g)there is a degree of insight by the applicant.[112]

   [105] See, for example, Applicant's Outline of Submissions, paras 16 and 17.

   [106] Applicant's Outline of Submissions, para 22.

   [107] Applicant's Outline of Submissions, para 23.

   [108] Applicant's Outline of Submissions, para 18.

   [109] Applicant's Outline of Submissions, paras 55 – 56.

   [110] Applicant's Outline of Submissions, paras 38 – 39.

   [111] Applicant's Outline of Submissions, paras 47 – 48.

   [112] Applicant's Outline of Submissions, paras 71 – 72.

3. The applicant submits the relevant risk to the public – s 156(1)(a) – as informed by the above factors, can be properly addressed by conditions which prohibit the applicant from communicating with NH, with any residual risk addressed by a prohibition on non-clinical communication with patients more generally.[113]

   [113] Applicant's Outline of Submissions, paras 29 – 30.

4. The applicant accepts that the broader public interest – s 156(1)(e) – is engaged, to some degree, by his communications with Mr M[114] and other communications that don't concern NH, being communications with Dr J and AHPRA/Tribunal.[115]  In that regard, he says that those communications go to the confidence the public has in the medical profession, which is a concern that can be addressed by the same conditions as are suggested above – a prohibition on non‑clinical communication with patients.  That is because, it is said, once these proceedings are complete, the sense of grievance which is behind those communications will no longer exist and the risk of other, similar, outbursts will be low.[116]

The respondent's case

[114] Applicant's Outline of Submissions, para 41.

[115] Applicant's Outline of Submissions, para 58.

[116] Applicant's Outline of Submissions, paras 63 – 66.

1. As previously noted, the respondent's case is put on the basis of both ss 156(1)(a) and (e) of the National Law.  As to the former, the respondent submits that we have before us materials on which we may form a reasonable belief that the applicant has:

   (a)engaged in boundary violations in his relationships with patients;[117]

   (b)inappropriately prescribed drugs of dependence;[118]

   (c)engaged in threatening, intimidating and emotionally manipulative conduct towards his patients and other health practitioners; and

   (d)used his position as a medical practitioner to make complaints about vulnerable patients that had no reasonable basis.[119]

   [117] By which we understand the respondent to refer to NH and her children.

   [118] By which we understand the respondent to mean that the applicant prescribed such drugs to NH while he was in a close personal relationship with her – see paras 123 – 124 above.

   [119] Respondent's Amended Outline of Opening Submissions, para 42.

2. In relation to each matter, the respondent's submissions give various examples of the applicant's conduct, identified from communications, that are said to support that allegation.  Our preceding summary of the factual allegations is a non-exhaustive discussion of some of those examples.

3. The respondent also submits that the applicant lacks insight into his conduct giving rise to each of those matters such that we 'can form a reasonable belief that there is a serious risk that Dr Marcus will continue to engage in similar conduct in the future, unless immediate action is taken.'[120]

   [120] Respondent's Amended Outline of Opening Submissions, para 43.

4. The respondent submits that conditions will be inadequate to protect the public.  In support of that conclusion, the respondent points to the broad range of activities engaged in by the applicant during his relationship with NH in breach of his professional boundaries.  It also notes that some of the behaviour is 'cloaked' in the language of the applicant's professional opinion, such as the 'mandatory report' to the Department of Communities and some of his allegations regarding Mr M.[121]

   [121] Respondent's Amended Outline of Opening Submissions, paras 95 – 100.

5. Accordingly, it is said, the mere imposition of conditions of supervision will be inadequate to protect the public.

6. Finally, the respondent submits that we have before us material upon which we can form a reasonable belief that patients and other health professionals are at serious risk of various forms of harm – physical, emotional or psychological harm (including harm arising from unwanted adverse actions by government agencies), reputational harm and financial harm.

7. As to s 156(1)(e), the respondent submits, in effect, that the allegations are such that, if proven, they would demonstrate that the applicant is not a fit and proper person to practice medicine.  As such, it is submitted that the public's confidence in the profession requires suitable and appropriate immediate action.

8. In particular, it is said that patients must be able to trust that their doctor will display integrity, truthfulness, dependability, compassion and protect their confidences.[122]  It is also said that it is in the public interest for the public, as well as other practitioners, to have confidence that the system will keep them safe, in effect, from practitioners who do not display those attributes.[123]

   [122] Respondent's Amended Outline of Opening Submissions, para 91.

   [123] Respondent's Amended Outline of Opening Submissions, para 94.

Disposition

Reasonable belief that, because of his conduct, the applicant poses a serious risk to persons

1. We accept the respondent's submission that we have before us materials on which we may form a reasonable belief that the applicant has engaged in conduct as described in para 137 above.  Indeed, save, perhaps, for the inappropriate prescription of drugs of dependence, we understood the applicant to accept each of those matters.  His acknowledgement that we have before us material sufficient to form a reasonable belief that immediate action is warranted[124] also, necessarily, proceeds on the basis that it is 'necessary to take immediate action to protect public health or safety'.[125]

   [124] Applicant's Substituted Statement of Issues, Fact and Contentions 22 September 2023, paras 1 – 2.

   [125] National Law, s 156(1)(a)(ii).

2. However, within those concessions is hidden some complexity.

3. As was noted above, we are required to identify 'with precision' the risk that we believe arises as a result of the applicant's conduct.

4. It is the risk so identified that allows a clear assessment of the appropriate nature of any immediate action that ought to be taken.

5. So, while the 'mitagatory' factors relied upon by the applicant might be said to go to the nature of the immediate action, in fact they must be considered at this stage of our reasons to assist in the precise identification of the risk posed.

The applicant's submissions as to altruism and insight

1. The applicant submits that his relationship with NH was motivated by altruism.  He also submits that he has shown a degree of insight into the error of his conduct. In support of those two submissions the applicant relies upon three matters.

2. Firstly, by letter of 9 June 2022 (shortly after the IA Decision), Dr LB, who appears to have been consulted by the applicant, wrote to Dr D at the medical practice which employed the applicant and advised that the applicant had told him that what was described as 'significant professional boundary breaches' (i.e. his relationship with NH) had been 'genuinely motived by altruistic considerations that he was genuinely trying to help this family in need'.[126]

   [126] RBOD, Volume 1, page 748.

3. Secondly, the same sentiment is contained in a letter to the respondent by the applicant's former solicitor of 3 June 2022 in which he (on behalf of the applicant) acknowledges and apologises for 'significant breaches of professional boundaries in his dealing with [NH]'.  It is said that those breaches 'were only ever motivated by altruistic considerations that he [the applicant] genuinely believed were in the best interests of both [NH] and her children'.[127]

   [127] RBOD, Volume 1, page 689.

4. Thirdly, that view is also expressed much more recently in his interview/consultation with Dr A who, as noted above, is a consulting psychiatrist engaged by the respondent as part of its investigation.[128]

   [128] RBOD, Volume 3, page 509.

5. In our view that material does not support a finding that the applicant's conduct was motivated by altruism.  Equally, we are not satisfied that the applicant has shown any meaningly insight into the wrongful nature of his conduct.

6. As to altruism, we accept the respondent's submission that the applicant sought from NH favourable reviews for his practice on Facebook.[129]  Altruism does not, therefore, appear to have been the sole motivation for his conduct.

   [129] RBOD, Volume 2, page 12 rows 133 – 144, page 65 rows 810 –819, 828 and 842, page 94 rows 1155 – 1158.

7. But much more significantly the submission that the applicant was motivated by altruism appears to us to be at odds with the ferocity of his response to the breakdown of his relationship with NH.  That response appears to amount to a campaign of retribution, intimidation, threats and abuse against NH and includes threats of police and DCP involvement, the 'mandatory report' to the Department of Communities and considerable communications to AHPRA and the Tribunal containing allegations about NH, which he now accepts as 'unfounded and or unsubstantiated' but which continued until at least July 2023. [130]

   [130] RBOD, Volume 3.

8. We are unable to see how such a ferocious campaign against NH can be said to be consistent with the suggestion that the applicant's relationship with, and conduct towards, NH was motivated by altruism.

9. Altruism places the interests of the other first; it is unselfish behaviour.  The ferocious anger directed at NH in the applicant's conduct post‑relationship appears to suggest that the applicant felt (or feels) that NH's notification is evidence that she is ungrateful for his involvement or that it somehow represents a betrayal of him and his efforts to 'assist' her.  That is at odds with the submission that the applicant was unselfish in his relationship with NH.

10. Equally, as to insight, we do not accept the submission that the applicant has, post-conduct, insight into the error of the relationship with NH.

11. As we have already identified, the material before us shows clearly that during his relationship with NH the applicant was very much aware that it represented an inappropriate transgression of professional boundaries but, despite that awareness, he did nothing to end the relationship.

12. Indeed, as we have previously noted, on several occasions during the relationship the applicant sought to shift responsibility onto NH to resolve the issue by, for example, suggesting that she find another GP as her treating doctor.

13. In such circumstances, we find the applicant's submission that he now recognises that the relationship was 'wrong' to be no more than a platitude; a meaningless statement of the obvious.

14. That conclusion is strongly reinforced by the applicant's post‑relationship conduct, by which he has sought (over many months) to blame NH for the predicament he now finds himself in.  In our view that conduct strongly demonstrates a lack of insight into his role in the relationship.  As we have previously noted, it was his responsibility as the medical practitioner to identify the problem and avoid it.

15. We agree with the respondent that the applicant's lack of insight, in circumstances where he otherwise acknowledges that the conduct occurred and is sufficient to warrant immediate action, increases the risk that the applicant's conduct will be repeated, either because (despite the acknowledgement) the applicant fails (meaningfully) to recognise that the conduct is wrong, or he does not care that it is.

Other matters relied upon by the applicant

1. We accept that, on the material before us, there is no prior history of boundary transgressions (or, indeed, any other complaint) alleged against the applicant prior to his relationship with NH.  We also accept that, save for Mr M, the errant behaviour (including, but not limited to, his post-relationship communications with AHPRA and the Tribunal) appears limited to that concerning his relationship with NH and the fallout following its breakdown.

2. That tends in favour of the applicant's position that conditions may be a sufficient form of immediate action, but only marginally.  In our view the lack of meaningful insight comprehensively overwhelms any benefit his lack of prior history might provide.

3. We also accept that there may be some strength to the applicant's submission that his communications with Dr J, AHPRA and the Tribunal were the result of a sense of grievance arising out of the IA Decision and the lengthy time taken to bring the matter to a hearing.

4. However, while that might be so, we do not accept the subsequent submission which is to the effect that once the current proceedings are complete, the applicant is unlikely to repeat such behaviour.  Rather, the behaviour is such as to suggest that the applicant lacks the necessary restraint to avoid repeating his inappropriate behaviour.

5. But in any event, the current proceedings are merely the immediate action stage of the respondent's response to NH's notification.  As has been mentioned, the respondent has already commenced its investigation into that notification, including by engaging Dr A and Dr J.  We are unaware of the status of that investigation, but no proceedings have yet been commenced in the Tribunal.

6. Likewise, we accept the submission that the boundary transgressions are limited to his relationship with NH with whom he has not directly communicated since prior to the IA Decision.

7. But, again, we do not accept that much flows from that in favour of the applicant's preferred outcome.  As we have identified, the applicant's conduct post the IA Decision involves very considerable communications about NH, much of which is now accepted as unfounded.

8. Finally, we do not accept the applicant's submission that his communications with Mr M appear as a 'relatively isolated incident' rather than as a 'broader pattern'.  Rather, as is explained in more detail below, his conduct towards Mr M appears to fit comfortably as part of a pattern of behaviour of inappropriate and disproportionate responses to perceived slights and insults.

The risk identified

1. The above analysis now allows us to identify, with some precision, the risk posed by the applicant in light of his conduct.

2. In our view, the material before us provides a reasonable basis for our belief that the applicant's conduct gives rise to a serious risk to persons that may be described as two overlapping risks.

3. The first is the risk that the applicant will again become fixated on a vulnerable patient and, in contravention of his professional boundaries, seek to get involved in their private life.

4. The second is the risk that if the applicant is rebuffed, whether before the relationship begins or after some time when the relationship is ended, he will become abusive, threatening, intimidatory, and retributive,

5. Our reasons follow.

6. First, NH appears to have been a patient of the applicant for approximately 12 months before the transgression of boundaries began.  Although it not very clear, the applicant's awareness of NH's financial insecurity appears to have triggered his inappropriate involvement in her life.

7. Second, as described above, there appears to have been a rapid escalation in the relationship and the extent to which the applicant sought to place himself in the life of NH and her daughters.

8. Third, the applicant continued with the relationship despite knowing (and stating to NH) that it was wrong and represented a breach of his professional boundaries.

9. Fourth, despite that knowledge, the applicant has continued to insist that his behaviour was motivated by altruism, and has shown no genuine insight into the error of his conduct.

10. Fifth, his response to the disintegration of his relationship with NH was (to put it very mildly) entirely inappropriate.  Rather than accept responsibility for the situation, he has blamed NH for the consequences that he now faces and subjected her to abuse, insults, threats and unfounded allegations to relevant authorities.

11. Sixth, his dealings with Dr J (who, after all, was merely doing his job as requested by the respondent) are equally marked as lacking restraint and proportion and consisting of abuse, insults and threats.

12. Seventh, while we lack the relevant background and context to his dispute with Mr M, the apparent lack of restraint and resulting aggression is consistent with his other conduct regarding the ending of his relationship with NH.

1. For these reasons, we are of the view that the material reasonably supports our belief that there is an unacceptable risk that the applicant:

   (a)will be unable to control the impulse to become inappropriately involved with a vulnerable patient;

   (b)will, despite being able to identify that it is wrong to do so:

   (i)convince himself that the relationship is nonetheless 'for the best', because he is acting out of altruism;

   (ii)seek to shift the blame for any wrongdoing onto the patient;

   (c)when the relationship ultimately fails (or, even, before it starts if his proposals are rebuffed), become abusive, insulting and threatening.

2. In short, we are of the view that his relationship with NH and his conduct in its aftermath, together with his dealings with Mr M, provide us with a sufficient basis to form a reasonable belief that there is a material risk that the applicant will again breach his professional boundaries with a vulnerable patient and seek to become involved in their personal life, and will become abusive, insulting and threatening when things go wrong.

3. That risk represents a 'serious risk to persons' in the sense that we believe, for the above reasons, that the likelihood is considerably higher than 'fanciful'[131] and the possible harm is considerably more than 'trivial'.[132]  In the latter regard we accept the respondent's submission that a vulnerable patient exposed, as NH was, to the applicant's conduct might reasonably be expected to suffer, at least, psychological or emotional harm.

The risk as identified cannot be adequately addressed by conditions

[131] cf Oglesby, [20].

[132] cf Oglesby, [20].

1. In our view, the risk so identified cannot be addressed by any immediate action less than suspension.  Put another way, the imposition of conditions will not adequately manage that risk.

2. That is because, in effect, the risk so identified goes to the applicant's lack of restraint or impulse control.  The same matters give rise to our belief that the applicant will be unable to comply with any conditions imposed.

3. That is, to be satisfied that the imposition of conditions would adequately address the risk requires us to assume that the conditions will be complied with.  Given our findings that the relevant risk is manifest due to the applicant's poor impulse control, such an assumption would, in our view, be misplaced.

4. By way of example, as we have already stated, the material before us supports, in our view, the reasonable belief that the applicant persisted in his relationship with NH despite knowing (and acknowledging) that it was wrong.  That strongly supports the view that the applicant is unlikely to comply with conditions which would (as the applicant has suggested) prohibit non-clinical communication with patients.

5. Equally, his ongoing insistence that his relationship with NH was motivated by altruism supports a belief that he will be willing to explain or justify any failure to comply with any conditions that we might impose by reference to 'higher' motivations.

6. Accordingly, we are of the belief that it is necessary for immediate action to be taken by way of suspension of the applicant's registration to practice medicine.

The public interest requires suspension of the applicant's registration

1. For the reasons that follow, we also believe that the suspension of the applicant's registration as a medical practitioner is in the public interest pursuant to s 156(1)(e) of the National Law.

2. In our view, the most salient aspect of the public interest in this case is public confidence in the medical profession and its regulation.

3. We are satisfied that the applicant's conduct in this case challenges that public confidence in two critical ways.  The first concerns the risk to vulnerable patients, which is the subject of our reasons in relation to s 156(1)(a). Public confidence in the profession and its regulation requires that such risk be properly managed.  Given the very considerable overlap between this aspect of the public interest and the 'protection of public safety' under s 156(1)(a), we need say no more in this regard.

4. The second concerns the integrity of the regulatory system.  In this case, the applicant's conduct towards NH and Dr J and, to a lesser extent, Mr M threatens to undermine the integrity of the regulatory system.

5. The applicant's conduct toward NH following the breakdown of their relationship represents a direct challenge to the integrity of the regulatory system created by the National Law.

6. His immediate conduct was to make a 'pre-emptive strike' by writing to AHPRA in anticipation of NH's notification and seeking to undermine her credibility.  He then engaged in what appears to have been an orchestrated campaign designed to threaten, destabilise and undermine her, including by his referral, as the GP of her children, to the Department of Communities.

7. It is self-evident that a regulatory system that relies on notifications must protect the people who make such notifications from the threat of retribution from those about whom they have made or may make notifications.

8. A similar point arises in relation to Dr J who, as we have previously noted, was asked by the respondent to carry out an investigation into the applicant's conduct.

9. Again, it is self-evident that a regulatory system that relies on members of the profession to express opinions regarding the work done by their colleagues must protect those people from the threat of retribution from those about whom they may make or have made findings.

10. Dr J was merely doing what was asked of him by the respondent, as professional regulator.  He should not have had to endure the abuse, insults and threats that the applicant directed against him and which would reasonably deter him, and other members of the profession, from playing a proper role in the regulation of the profession.

11. As to Mr M, the fourth allegation includes an email that, amongst other things, threatens to refer Mr M to AHPRA if Mr M reports the applicant to that body.

12. That is, the threat of referral (notification) appears to be retributive, and otherwise without merit.

13. The making of threats of tit-for-tat referrals to a regulatory body threatens to undermine the integrity of the system by both discouraging the making of genuine referrals and clogging the system with non‑genuine ones.

14. Those matters, in our view, provide a reasonable basis for our belief that the public interest requires immediate action as a suitable response to the applicant's conduct which threatens the integrity of the system of regulation.

15. In particular, for the reasons we described in relation to the risk to public safety, we are of the view that there is a real risk that the applicant will repeat such behaviours.

16. Again, for the reasons previously identified in relation to the protection of public safety – s 156(1)(a) – we are not satisfied that the imposition of conditions will suffice to protect the public interest.

17. In particular, we do not accept the applicant's submission that, because much of the conduct of concern has been driven by his agitation regarding NH's notification and the subsequent action, including these proceedings, the resolution of these proceedings will likely see an end to that conduct.

18. As we have already indicated, one of our principal concerns is with the applicant's lack of restraint.  While the current proceedings provide a focus for the applicant at present, we have no comfort that some other perceived slight or insult will not simply provide an alternative focus.  The applicant's conduct towards Mr M supports that view.

19. Finally, in this regard, we acknowledge that at least some aspects of the public interest may pull in a different direction.  In particular, we acknowledge that suspension will deprive the community of a trained professional and we note the letters of support from former patients of the applicant.[133]

    [133] Exhibits 6 and 8.

20. However, in our view suspension represents a proportionate response to the risk posed and is a necessary consequence of the conduct and associated risk.

Conclusion

1. For these reasons, we are of the belief that:

   (a)the applicant has:

   (i)maintained an intimate, albeit non-sexual, relationship with NH who was a vulnerable patient, while continuing to act as her treating physician despite recognising throughout the relationship that it was inappropriate; and

   (ii)engaged in an extended period of abusive, insulting, and threatening behaviour, including the making of very serious allegations in his capacity as a medical practitioner that were without foundation, to and about NH following the end of that relationship as well as towards Dr J and Mr M;

   (b)as a result of that conduct, the applicant poses a serious risk to persons, particularly vulnerable patients, in that he may again form, or seek to form, inappropriate personal relationships with them and respond with aggression, threats and insults when that relationship fails or otherwise when presented with a slight or insult;

   (c)it is necessary to take immediate action to protect public health and safety, particularly the emotional or psychological health of vulnerable patients;

   (d)it is also in the public interest to take immediate action, most relevantly to protect the integrity of the regulatory system by protecting other vulnerable patients and by protecting from the risk of abuse, threats and insults participants in the regulatory system; and

   (e)there is no other manner by which to provide such protection, or to protect the integrity of the regulatory system, except by the suspension of the applicant's registration as a medical practitioner because, in our view, he is unlikely to comply with any conditions imposed upon him.

2. Accordingly, we affirm the IA Decision and order that the applicant's registration as a medical practitioner be suspended until further order.

Orders

The Tribunal orders:

1. The respondent's immediate action decision of 6 June 2022, remade 14 June 2023 is affirmed. The respondent's decision to suspend the applicant's registration is upheld.

1. The applicant's registration to practice medicine is suspended until further order.

1. The application is otherwise dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

PN

Associate to Deputy President Judge Jackson

16 FEBRUARY 2024