Marin v The Chiropractic Board of Australia (No 2) - [2019] SADC 31

DISTRICT COURT OF SOUTH AUSTRALIA
(Appeals Under the Health Practitioner National Law (South Australia) Act 2010)
MARIN v THE CHIROPRACTIC BOARD OF AUSTRALIA (No 2)
[2019] SADC 31
Reasons for Decision of His Honour Auxiliary Judge Clayton
22 March 2019
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - OTHER FIELDS OF PRACTICE - CHIROPRACTORS
PROCEDURE - COSTS
The court found that a decision of the Health Practitioners Tribunal of South Australia that Dr Marin be permanently disqualified from reapplying for registration as a chiropractor was ultra vires the provision in the legislation that enabled disqualification "for a specified period".
Both parties requested District Court to specify a period of disqualification.
Both parties applied for costs.
Held:
(1) That Dr Marin be disqualified from applying for registration for a period of 10 years.
(2) That there be no order as to costs.
Chiropractic Board of Australia v Robert Marin [2017] SAHPT 7; Marin v The Chiropractic Board of Australia [2019] SADC 17; Marin v The Chiropractic and Osteopathy Board of South Australia [2008] SADC 173; Chiropractic Board of Australia v Marin [2017] SAHPT 15; Honey v Medical Practitioners Board of Victoria [2007] VCAT 526; Craig v The Medical Board of South Australia (2001) 79 SASR 545; Chiropractic Board of Australia v Shanahan [2017] SAHPT 9; Legal Profession Complaints Committee v Love [2014] WASC 289; Law Society of New South Wales v Foreman (1994) 34 NSWLR 48; Legal Profession Complaints Committee v O'Halloran [2013] WASC 430; NSW Bar Association v Evatt (1968) 117 CLR 177; Medical Board of Australia v Singh [2017] WASAT 33; Moore v The Registrar of the Medical Board (No 2) [2001] SADC 141; Marksman Training Systems Proprietary Limited v The Registrar of Firearms (No 3) [2015] SADC 16, considered.

MARIN v THE CHIROPRACTIC BOARD OF AUSTRALIA (No 2)
[2019] SADC 31

On 23 June 2017, the Health Practitioners Tribunal of South Australia found Dr Marin had behaved in a way that constituted "professional misconduct" within the meaning of section 5 of the Health Practitioner Regulation National Law (South Australia) Act 2010 and ordered that: [1]
1.   Dr Marin be reprimanded in the strongest possible terms.
2.   Dr Marin pay a fine of $20,000.
3.   Dr Marin's registration as a chiropractor be cancelled.
4.   Dr Marin be permanently disqualified from applying for registration.
5.   Dr Marin be prohibited from providing any health services including weight loss, dietary advice and massage services, whether remunerated or not, that utilise his skills and knowledge gained as a chiropractor.
6.   Dr Marin pay the Board's costs.
[1]    Chiropractic Board of Australia v Robert Marin [2017] SAHPT 7 (23 June 2017).
Dr Marin appealed to the District Court which found that the order permanently disqualifying Dr Marin from reapplying for registration was ultra vires on the basis that the Act only empowered the Tribunal to prevent a person from applying for registration "for a specified period" namely a finite period and did not permit disqualification from applying indefinitely. That order of the Tribunal was rescinded and it now remains for a period of disqualification to be determined.[2]
[2] Marin v The Chiropractic Board of Australia [2019] SADC 17 (19 February 2019).
Additionally, both parties have applied for the costs of the appeal.
A question has arisen as to whether the Court should remit the determination of the period of disqualification to the Tribunal or itself substitute a period that is appropriate.[3] Both of the parties submitted that this Court should determine the period of disqualification.
[3] District Court Act1991 section 42F.
The Tribunal is a specialist Tribunal with expertise in the area of disciplining health practitioners. Counsel for the Board submitted and I accept that this Court has available to it all of the information which would be available to the Tribunal. A decision by this Court will enable a quicker and more cost-effective resolution and also remove one level of appeal. An appeal from the decision of this Court lies to the Supreme Court but an appeal from the Tribunal lies first to this Court. If the Tribunal determined the period there could be an intermediate appeal to this Court. Counsel for the Board submitted that these proceedings have had a lengthy if not tortured and expansive life and submitted that it is desirable to bring the proceedings to an end.[4] Both parties submitted that there is no evidence that the Tribunal has any special expertise in this specific area and the Court is in no worse position than the Tribunal.
[4] T 6-27.
In the interests of progressing the matter I have decided that the period of prohibition should be determined by this Court.
It is important to bear in mind that Dr Marin will not automatically be registered at the end of the period of prohibition but he will have to satisfy the Board that he is a fit and proper person to be registered.
In order to determine what period of prohibition is appropriate it is necessary to have regard to the extensive history of the matter.
In 2008 the former Chiropractor and Osteopathy Board of South Australia found that Dr Marin had breached various provisions of the Chiropractor's Board of South Australia Code of Professional Conduct and Practice and that Dr Marin had acted in a manner likely to bring the profession of chiropractic into disrepute. That Board found that financial arrangements entered into with five patients were inappropriate. The Board formally censured Dr Marin in relation to his conduct and ordered that his registration be suspended for a period of four months. Additionally, the Board ordered that a number of conditions be attached to Dr Marin's registration for a period of 12 months. Those conditions required his cooperation with a mentoring program that would provide regular supervision and instruction from a senior chiropractor appointed by the Board at Dr Marin's cost. Dr Marin was ordered to pay the Registrar's costs of the proceedings before the Board which were fixed at $45,000. In the proceedings Dr Marin admitted that he was guilty of unprofessional conduct in his treatment of 10 patients who had complained to the Board. The unprofessional conduct included a failure to adequately explain to patients that Dr Marin's practice was not directed specifically to the relief of pain and that he had acted inappropriately in relation to prepayment "care plans" for chiropractic treatment. Dr Marin admitted that between June 2003 and June 2006 he had inappropriately used testimonials and had included misleading information in advertisements for his services. Dr Marin agreed to give certain undertakings and that his registration would be subject to conditions. He also offered to reimburse the monies received from the patients who had complained to the Board and undertook to complete further education in professional ethical practice.
Counsel for the Registrar had agreed to recommend to the Board the imposition of a suspension for a period of one month, although it was made plain that any suspension was a matter for the Board. The Registrar accepted that a period of suspension of one month would be sufficient to ensure that the public interest would be adequately protected. However, the Board imposed a suspension of four months.
On appeal to this Court Her Honour Judge Shaw found that Dr Marin had been denied procedural fairness in a number of respects and reduced the suspension to a period of one month. In doing so Her Honour arrived at her own decision having regard to the submissions of the parties, the relevant codes of conduct and the circumstances of the unprofessional conduct. She also had regard to undertakings given by Dr Marin and the strict conditions which were to govern Dr Marin's practice for a period of 12 months. Her Honour had formed the view that the orders would provide the necessary deterrence and ensure that public confidence in the behaviour of chiropractors was maintained.[5]
[5] Marin v The Chiropractic and Osteopathy Board of South Australia [2008] SADC 173.
Undertakings which Dr Marin gave on 9 April 2008 were:[6]
[6]    Appeal Book (AB) 9 – 1788 to 1789.
1.That I will ensure at all times that my practice complies in all respects with any Code of Conduct or ethical or other guidelines promulgated or published by the Board.
2.That I will not under any circumstance accept payment more than one month in advance for treatment or other services.
3.That all patients (including existing patients as at the date of this undertaking) will be promptly and fully informed of their right, regardless of any previous arrangement:
3.1     To pay for treatment at the time of each consultation rather than in advance.
3.2     To discontinue treatment at any time by so advising the practice.
3.3    To receive full refunds for prepaid services not utilised at the time of termination.
4.     That all care plans will be limited to a maximum period of 3 months
5.That I will conduct and record the result of a comprehensive physical examination, including an appropriate neurological and orthopaedic component:
5.1     On each new patient, prior to commencing or recommending any treatment; and
5.2     On all patients, whether existing patients at the date of this undertaking or not) whenever clinically indicated at least every 3 months or 12 treatments, whichever is the earlier.
6.At the time of each physical examination of the patient I will diagnose the cause of, (and record the diagnosis for) the patients presenting symptoms and any other significant condition I find to be present and if I do not intend to directly, immediately and primarily treat any such symptom or condition, I will clearly and immediately advise the patient of this fact in writing and offer a referral to a practitioner who will provide treatment for such symptom or condition.
7.That I will not advertise or permit my practice to be advertised without such advertisement first being approved in writing by the Board or the Registrar.
8.That I will not advertise in such a manner as may involve any hidden cost or obligation for the client.
By the operation of section 291 of the National Law undertakings given to the former Board are taken to be undertakings given to the complainant Board.
With effect from 19 January 2009 Dr Marin's registration has been subject to a condition imposed by this Court requiring him to submit to a mentoring program with a registered senior chiropractor appointed by the complainant.
On 9 April 2014, an Immediate Action Committee of the complainant took immediate action by imposing six conditions on the respondent's registration.[7]
[7] AB 9 – 1789.
On 19 June 2015, an Immediate Action Committee of the Board determined to suspend Dr Marin's registration under section 156 of the National Law with effect from 22 June 2015.
After a hearing which took place over 23 days the Tribunal handed down reasons in which it made 17 separate findings of professional misconduct. In summarising its conclusions, the Tribunal said:[8]
The respondent’s conduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. In addition his conduct is such that he cannot be regarded as being a fit and proper person to hold registration in his profession. His attempts to mislead the Tribunal by falsifying documents is but one example that leads to the conclusion that he is not a fit and proper person.
Despite having gone through a previous hearing in 2008, which involved 10 of the respondent’s patients whose complaints are virtually identical to the complaints made by the patients or former patients/clients of the respondent in these proceedings, the respondent appears to have learnt nothing. Further he has breached the undertakings he gave.
[8] Reasons of Tribunal – reference – paragraphs 526, 527.
The Tribunal heard submissions on penalty from both counsel for the complainant and Dr Marin and handed down its decision on penalty on 30 August 2017. The Tribunal noted that the conduct alleged in the various grounds amounted to professional misconduct and found that Dr Marin was not a fit and proper person to hold registration in his profession.[9]
[9] Reasons of Tribunal – Chiropractic Board of Australia v Marin [2017] SAHPT 15 (19 December 2017). AB 1938 paragraphs 23 and 24.
The Tribunal was concerned that both during the hearing and when making submissions Dr Marin had demonstrated no insight into his behaviour. The concern of the Tribunal was compounded by the fact that in 2008 Dr Marin had gone through the earlier hearing which involved 10 patients whose complaints were virtually identical to the complaints in the present proceedings. Coupled with that was the fact that Dr Marin had breached the undertakings that he gave following the hearing in 2018.[10] The Tribunal said:
The Tribunal regards cancellation of registration as the appropriate sanction for the respondent's conduct which has continued over a lengthy period of time and occurred in the context of the earlier proceedings in 2008. Further the demonstrated lack of insight on the part of respondent leads the Tribunal to the decision that he should be permanently disqualified from applying for registration as there is a complete lack of confidence that going forward he would abide by the standards applicable to his profession.[11]
[10] AB 1938 paragraph 25.
[11] AB 1940 paragraph 28.
The Tribunal also said:
The findings against the respondent are detailed and are devastating. The Tribunal has found professional misconduct in two respects namely that the conduct was substantially below the expected standard but also the conduct demonstrates that the respondent is not a fit and proper person to hold registration in the profession.[12]
The respondent breached undertakings provided by him in 2008 and further breached conditions imposed upon him as regards weight loss clients.[13]
[12] Reasons on Penalty – Chiropractic Board of Australia v Marin [2017] SAHPT 15, [5].
[13] Reasons on Penalty paragraph 9.
The Tribunal noted that Dr Marin had been suspended for one month in 2008 and that he had provided undertakings. They continued:
Despite this since that time the respondent has continued to engage in remarkably similar conduct. The respondent is likely to repeat such conduct in the future. This behaviour on the part of the respondent is something that is deeply ingrained and it is unlikely that he would observe professional standards in the future. He has demonstrated since 2008 and during the course of this protracted hearing disregard for those standards. He has treated the standards with contempt and disdain and has engaged in a distortion of the plain English meaning of words in those standards to suit his position.
The conduct of the respondent is deeply ingrained in that it has occurred across the chiropractic practice, massage clients and weight loss clients. The respondent has demonstrated no insight into this conduct and has done nothing to indicate to the Tribunal that anything will change in future. The respondent has demonstrated a willingness to mislead this Tribunal about his conduct and has tampered with and concocted records for his own purposes.
The public must be protected from the type of conduct engaged in by the respondent. Some of the conduct involves a risk to a person's health and safety such as the indiscriminate use of x-rays and the sale of products in the weight loss program to anyone who will pay regardless of their health status. The public needs to be protected from such commercially exploitative and predatory behaviour.[14]
[14] Reasons on Penalty paragraphs 10-12.
The National Law Section 3 states that the principal objective is to:
Provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.
One of the purposes of the disciplinary sanctions is to prevent persons who are unfit to practice from doing so. In Craig v Medical Board of South Australia, Doyle CJ said:[15]
The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
...
In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practice in the profession, thereby protecting the public against a person found to be unfit to be a practitioner.
...
In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.
[15] (2001) 79 SASR 545 at 554.
In arriving at penalty, the Tribunal took into account that Dr Marin had not fulfilled the duty he had as a professional to assist his professional board with its enquiries and to answer questions properly and honestly. They said that the false testimony he gave to the Tribunal suggested a lack of remorse and gave no cause for confidence that he would behave properly in future. The Tribunal said:
The submissions made by (Dr Marin) demonstrate that he has no insight into the conduct that's been found to have occurred. (Dr Marin) has not shown any understanding of his failures, he has done nothing to remedy his lack of professional and management skills and he has not in any way demonstrated that he intends to observe proper professional standards in the future[16].
[16] Reasons on Penalty paragraph 22.
Nothing has been put to this Court to question the accuracy of any of those statements of the Tribunal.
The distinction between cancellation of registration and suspension was discussed in Honey v Medical Practitioners Board of Victoria where it was said: [17]
Cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor's future ability to practice once the period of suspension is served.
[17] [2007] VCAT 526 at [23].
In this case the order cancelling Dr Marin's registration as a chiropractor was clearly justified. The question for the Court is to determine the period for which Dr Marin should be disqualified from reapplying for registration

There is nothing before this Court to indicate that Dr Marin will ever be a fit and proper person to be registered again. However, it would be inappropriate to predict what may happen in the future. He should have the opportunity to establish that he has been rehabilitated. Whether he is fit to be registered again must be left to the Board which hears the application. My task is to determine what period should elapse before Dr Marin can make an application.
I heard detailed submissions from both counsel on the period of prohibition. The Board submitted that the period of disqualification should be 15 years. Dr Marin is presently 60 years of age and would be 75 years of age by the time such a period had expired.
Dr Gray SC, for Dr Marin reminded the Court that her Honour Judge Shaw had reduced a period of suspension from registration from a period of four months to a period of one month. She submitted that the penalty of 15 years sought by the Board is not justified by reference to precedents or other cases which have been dealt with by the Tribunal.
Dr Gray provided a table of penalties in other cases. I note that in Chiropractic Board of Australia v Shanahan,[18] where the practitioner had inappropriately touched female patients and breached an undertaking to not engage in chiropractic practice in any State or Territory of Australia, the Tribunal reprimanded the practitioner in the strongest possible terms, cancelled his registration as a chiropractor and permanently disqualified him from applying for registration. In that case, the practitioner was not represented and did not effectively participate in the proceedings. The other cases in the table were largely concerned with sexual misconduct of practitioner and are of little assistance for present purposes.
[18] [2017] SAHPT 9.
Dr Gray submitted that it is in relevant to consider the importance of re-entering the work force as an important part of Dr Marin's rehabilitation. That is not a consideration for this Court but for the Board to which an application will be made. The Board will need to be satisfied that Dr Marin has actually been rehabilitated before he can be registered.
I note that Dr Marin has now been removed from practice for nearly four years. That should be taken into account, but I do not accept the submission that the period of four years represents an appropriate period to protect the public and that Dr Marin should be permitted to reapply for registration.[19] Nothing has been put to the Court to indicate that Dr Marin is presently fit to practice or is likely to become fit to practice in the future.
[19] Appellant’s Outline paragraph 18.
The orders of the Tribunal that Dr Marin pay a fine of $20,000 and the costs of the complainant remain.
The respondent observed that Dr Marin had been suspended for one month in 2008 and provided undertakings and that since 2008 Dr Marin continued to engage in remarkably similar conduct and was likely to repeat such conduct in the future.
There is nothing before the Court to indicate that Dr Marin is not likely to repeat such conduct. He has shown no contrition and as the Board noted he had since 2008 and during the course of the protracted hearing demonstrated disregard for professional standards which he had treated with contempt and disdain. The Board submitted that the court should have no confidence that Dr Marin will be a fit and proper person to hold registration in the profession for a significant time.[20]
[20] Respondent’s Outline paragraph 11.
Mr Douglas, counsel for the Board, submitted that in determining the appropriate sanction the court must have regard to at least the following factors:
1. The need to protect the public against further misconduct by the practitioner.
2.The need to protect the public through general deterrence of other practitioners.
3.The need to protect the public and maintain confidence in the profession by reinforcing high professional standards and emphatically denouncing transgressions.
4.In the case of misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner.
5.Whether the practitioner has knowingly breached any Act, Regulations or Codes of Conduct.
6.Whether the practitioner’s conduct demonstrated incompetence.
7.Whether the incident was isolated such that the court can be satisfied of the practitioner’s worthiness or reliability for the future.
8.The practitioner’s disciplinary history.
9.Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community.
10.The desirability of making available to the public any special skills possessed by the practitioner.
11.To a limited degree, the practitioner’s personal circumstances at the time of imposing the sanction.[21]
[21] Respondent's Outline paragraph 13 referring to Craig v Medical Board of South Australia (2001) 79 SASR 545; Legal Profession Complaints Committee v Love [2014] WASC 389; Law Society of New South Wales v Foreman (1994) 34 NSW LR 408; Legal Profession Complaints Committee v O'Halloran [2013] WASC 430; NSW Bar Association v Evatt (1968) 117 CLR 177; Medical Board of Australia v Singh [2017] WASAT 33.
I accept that submission and have regard to those criteria.
The conduct of Dr Marin in 16 of the 17 grounds in the amended complaint was found to be substantially below proper professional standards.[22]
[22] Respondent's Outline paragraph 16.
As I have mentioned the Tribunal found that Dr Marin was unfit to practice and will remain so indefinitely. Nothing has been put to the Court which requires that finding to be varied. The Board initially submitted that the appropriate period of disqualification would be a period of 15 years commencing from the date of the order.[23] Later, The Board submitted that Dr Marin be disqualified from applying for registration for a period for no less than 12 years and up to 15 years.[24]
[23] Respondent's Outline paragraph 6.
[24] T 12-34; Respondent's Outline paragraph 24.
Mr Douglas referred to Medical Board of Australia v Singh[25] where the practitioner had prescribed drugs inappropriately. In that case, the Tribunal found that the practitioner's conduct was serious, that it occurred over a long period of time and involved multiple prescriptions. The Tribunal determined to impose a global penalty and determined that he be disqualified from applying for registration as a medical practitioner for a period of 10 years. I mention that case because apart from Shanahan where the South Australian Health Practitioners Tribunal permanently disqualified the practitioner from reapplying for registration, Singh is the longest period of disqualification imposed in any of the cases to which I have been referred.
[25] [2017] WASAT.
The circumstances vary and it is not appropriate to use other cases as precedents but they can provide examples of the range of suspension that should be considered.
I have to fix the time at which Dr Marin can apply for registration. A period of 10 years provides a starting point. Dr Marin must be given credit for the time which has elapsed since he was first suspended in June 2017
I determine that Dr Marin be disqualified from applying for registration for a period of 10 years from 19 June 2015.
Costs
Both parties have applied for the costs of the appeal.
The appellant succeeded in having the permanent disqualification from applying for registration set-aside. Otherwise the respondent was successful.
The costs of this appeal are governed by section 42G of the District Court Act which provides that no order for costs is to be made unless the Court considers such an order to be necessary in the interests of justice. I have been referred to the decision of Judge Smith in Moore v The Registrar of the Medical Board (No 2)[26] and the decision of his Honour Judge Tilmouth in Marksman Training Systems Proprietary Limited v The Registrar of Firearms (No3).[27] It has been acknowledged that “success alone will not make it necessary in the interests of justice that a favourable order for costs follow”. In Moore Judge Smith concluded that section 42G of the District Court Act required: “... There be some unusual or out of the ordinary feature of the contest which demonstrates that one party in the interests of justice is entitled to an order for costs”.
[26] [2001] SADC 141.
[27] [2015] SADC 16.
Dr Gray SC submitted that the appeal involved a large quantity of material and there was complexity in the issues involved. Also, the subject matter of the appeal concerns the livelihood of the appellant. I am not satisfied that those matters satisfy the requirements of section 42G. Also, Dr Marin was unsuccessful on his other grounds of appeal.
Mr Douglas for the Board pointed out that the appellant abandoned some of the grounds in the notice of appeal and also raised new arguments. He said that significant preparation was expended by the respondent meeting all the grounds of appeal including those abandoned on the day prior to the hearing. The Board seeks an order for costs thrown away in respect the abandoned grounds of appeal and submitted that it is in the interests of justice that such an order be made. Again, I am not satisfied those matters satisfy the requirements of section 42G. The Board was unsuccessful on the ground that the appellant be permanently disqualified.
There will be no order as to costs.