Mauro v Hooper
[2008] SASC 159
•18 June 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal)
MAURO v HOOPER
[2008] SASC 159
Judgment of The Honourable Justice Vanstone
18 June 2008
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - MEDICAL PRACTITIONERS - DISCIPLINE, AND REMOVAL FROM AND RESTORATION TO REGISTER - PROCEDURE, EVIDENCE AND APPEAL - SOUTH AUSTRALIA - SINCE MEDICAL PRACTITIONERS ACT 1983
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REASONS FOR ADMINISTRATIVE DECISIONS - OBLIGATION TO GIVE REASONS
ADMINISTRATIVE LAW - FREEDOM OF INFORMATION - REASONS FOR ADMINISTRATIVE DECISIONS - ADEQUACY OF REASONS
Appellant was found guilty by the Medical Board of unprofessional conduct particularised as six discrete grounds - appeal against Board's finding of unprofessional conduct only in relation to ground 4 - whether the Board erred in applying the standard of proof - whether the Board gave adequate reasons for its decision on ground 4.
Held: appeal upheld. Board's reasons inadequate - Board's finding of unprofessional conduct insofar as it rested on ground 4 set aside - that allegation remitted to a differently constituted Board to be dealt with afresh - fine of $5000 reduced to one of $3500.
Medical Practice Act 2004 s 51, s 65, referred to.
Public Service Board (NSW) v Osmond (1986) 159 CLR 656; T v Medical Board of South Australia (1992) 58 SASR 382; Marta Stefan v General Medical Council [1999] 1 WLR 1293; Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367, applied.
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; R v Keyte (2000) 78 SASR 68; Fox v Percy (2003) 214 CLR 118; R v Power (2003) 226 LSJS 337; R v Beard [2004] SASC 411, discussed.
Briginshaw v Briginshaw (1938) 60 CLR 336, considered.
MAURO v HOOPER
[2008] SASC 159Miscellaneous Appeal
VANSTONE J: The appellant, Stuart Louis Mauro, was charged on complaint laid before the Medical Board of South Australia (“the Board”) by the Registrar of the Board, Mr Hooper, with unprofessional conduct. The charge was particularised under six headings, referred to as grounds. Five of these concerned irregularities in relation to the writing of specific prescriptions and the sixth related to the appellant’s occasional practice of retaining part of some prescribed medications – unused by the patient – and using it for other patients.
The Board conducted an inquiry pursuant to s 51 of the Medical Practice Act 2004 (“the Act”) and found that five of the six grounds were proved. Thus, the appellant was found guilty of unprofessional conduct.
At the time of the hearing the appellant was not a registered practitioner. That fact limited the range of sanctions available to the Board pursuant to s 51(6) of the Act. The Board fined the respondent $5,000.
This appeal challenges the finding only in relation to ground 4. If that finding is set aside, the appellant seeks a reduction of the fine imposed. The appellant does not contend that the finding of unprofessional conduct, insofar as it rests on the other four grounds, should be set aside. The principal complaint amounts to a contention that the Board failed to give adequate reasons for resolving against the appellant a conflict between his evidence and that of a witness called by the Registrar. There is no challenge to the ultimate finding of unprofessional conduct insofar as it is based on the other proved grounds. It is argued that ground 4 contained the most serious allegation and that if it stands, it could conceivably have an impact upon any future application by the appellant for re-registration.
The right of appeal to a single judge of this court is given by s 65 of the Act. The nature of the appeal is described in the following subsections:
65— Right of appeal to Supreme Court
…
(5) The Court must, on an appeal under this section, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(6) The Court, on an appeal under this section—
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and
(c)must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
(7) The Court may, on after hearing an appeal under this section—
(a)affirm the decision appealed against;
(b)rescind the decision and substitute a decision that the Court considers appropriate;
(c)remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court;
(d)make any order as to costs or as to any other matter that the case requires.
Background
The relevant section of the complaint was in the following terms:
4. Re Carol Smith 14 April 2004
4.1 On 14 April 2004, the respondent wrote and signed a prescription for maxalon and ducene in respect of Carol Smith.
4.2 Carol Smith was not a patient of the respondent but a medical receptionist working at the same clinic.
4.3 On 14 April 2004, the respondent asked Smith to obtain the prescribed drugs for the respondent by falsely pretending that the drugs were genuinely prescribed for Smith.
Of these three assertions, only 4.3 was disputed by the appellant.
Both Ms Smith and the appellant gave evidence before the Board. Ms Smith was an experienced medical receptionist, but not one having any nursing training. Ms Smith said that she first came to know the appellant when he worked as a locum at the Central Districts Private Hospital at Elizabeth Vale. Subsequently he worked at the adjacent and commonly owned clinic, known as Priority Health Care, where Ms Smith was one of two part-time receptionists. It appears that the appellant and Ms Smith worked there together for about twelve months. From Dr Mauro’s evidence it appears that Ms Smith was originally employed by a company called WorkCare, which provided some facilities for the clinic and retained some profits from Dr Mauro’s work. The appellant said that his income was derived directly from the patients he saw and that he paid Ms Smith’s wage. The arrangements between WorkCare and Dr Mauro were unclear, but the details of them need not be canvassed.
Ms Smith’s evidence to the Board was largely made up of a number of general allegations concerning the conduct of the appellant in the practice. For instance, she said that the appellant would ring up “all the time” and make excuses for not attending for work and that he would get her to ring other establishments advising that he would be unable to attend to his work at those places. She said this happened “just about every day”. Two of the excuses which he nominated were his suffering from kidney stones and needing to go to hospital, and his brother having been in a car accident. In answer to a question about the appellant’s state of health she asserted that he would come to work in unironed shirts and would wear his doctor’s coat over the top of them. She said that over time the coat became shabby and she took it home and cleaned it. She said he would sometimes complain of ill health and of general unhappiness.
Under cross-examination Ms Smith was inclined to draw back from these generalisations. She conceded that she was unaware of whether Dr Mauro indeed suffered from kidney stones and that she had no knowledge of whether or not his brother had a car accident. She conceded that the appellant “dressed very well” and was a “very clean and tidy man”. In his evidence the appellant affirmed the fact of his kidney stones and of his brother’s accident and denied asking Ms Smith to make false excuses for him.
Ms Smith gave evidence that when the appellant worked as a duty doctor at a local kickboxing establishment, he would take from the drug cupboard, medication “like pethidine … the stronger medication” and put it in his doctor’s bag, which he would take with him. She said: “… sometimes it never came back”. However, in cross-examination Ms Smith agreed that there was no reason for her to go to the drug cupboard – either for drugs or to check the contents – in the normal course of her duties, although she was asked, early in 2004, to do a stocktake of the cupboard. She agreed that she had no personal knowledge of what was in the appellant’s doctor’s bag or of what was taken from or returned to the drug cupboard. Ms Smith acknowledged that paramedics from the adjacent hospital would, on occasions, go to the drug cupboard and access its contents. Ms Smith also agreed that she was not in a position to say whether the appellant’s entries to the drug cupboard register were accurate or not. In his evidence Dr Mauro asserted that, in accordance with correct practice, he noted items taken by him from the drug cupboard.
Ms Smith gave evidence that at one point she found in the appellant’s desk drawer an empty box of panadeine forte, bearing a label indicating it had been prescribed for a patient. She claimed that she made this find while restocking the doctor’s stationery supply. She also said she found a single tablet in the drawer. She took photocopies of both items. Under cross-examination she agreed that the stock of stationery was kept elsewhere; but she denied going to the appellant’s drawers “to snoop around”.
While there was no challenge to the fact that Ms Smith had located the empty tablet box, this incident was said to raise an issue about Ms Smith’s motives in relation to the appellant. In cross-examination it was put to Ms Smith that she had been inconsistent as to the identity of the single tablet found in the drawer.
The allegation making up ground 4
I move then to the allegation which comprised the subject matter of ground 4 of the complaint. In evidence-in-chief Ms Smith said that on one occasion the appellant asked her if she would be prepared to obtain from a pharmacy, and provide to him, drugs on a prescription which he would write out in her name. Ms Smith said because she was hesitant she sought advice by telephone about the request, from the executive officer of WorkCare. She then told the appellant she was not prepared to do it. He asked her to shred the prescription. She said she shredded it in front of him, but that she had kept a photocopy of it, which she identified. Ms Smith denied being unwell, or seeking the prescription from the appellant. In cross-examination she said that she did not recall who suggested shredding it.
The appellant’s evidence on this allegation was that it was untrue. He said that while he had no specific recollection of writing the prescription, his memory told him that during a conversation with Ms Smith about certain pressures upon her she complained that she was vomiting. She asked if there was anything he could do to help and he wrote a prescription for her. He described it as “an informal consultation”. He said that this was “probably a fairly close version of the truth”, although he had been over the event so many times that he could not be sure. He claimed he had no need for the medications mentioned in the prescription and, had he needed them, he could have obtained them from either his treating psychiatrist or a general practitioner. He denied that he had asked Ms Smith to shred the prescription.
It can be seen from the foregoing that the allegation making up ground 4 involved a direct conflict between the accounts of Ms Smith and the appellant. In addition, they were directly at odds on other issues.
As well as instances where Ms Smith was inclined to be rather expansive in describing the appellant’s habits and was persuaded to confine or downgrade her position in cross-examination, there were some curious features of her evidence.
Ms Smith was asked about her attitude to the appellant. She said she did not dislike him. Rather she felt sorry for him and was concerned for him. She admitted that when the clinic closed not long afterwards she put it down to the appellant being “kicked out”. She was disappointed not to have her job any longer and was upset that because he did not inform her of what was to happen she had very late notice of her employment being terminated. She had the view that she was employed by Dr Mauro, rather than WorkCare.
However, there were several instances where Ms Smith made some rather gratuitous remarks in her evidence, which might have suggested that she bore ill will to the appellant. For example, when the topic of kickboxing was raised by the cross-examiner, she proffered that the appellant “got mad one time when they didn’t require him, as well”. Then, when she agreed that she had found the empty medication box in his drawer on an occasion when he was not in his office, she added that such a situation occurred often. When she was asked about her fellow receptionist, Peta, she added, again unresponsively, that Peta “would often go around to Dr Mauro’s house, too”. Ms Smith immediately agreed in cross-examination that all she had been told by Peta on this topic was that she had been to Dr Mauro’s house once to drop off a pushbike. But when asked whether there was something sinister about Peta taking a bicycle to his house, she answered: “What about a doctor giving her a phone to keep as well?”
The Board’s finding
In this matter the Board chose to give an ex tempore finding and reasons. It retired for some hours before doing so. One can well understand the attraction to the members of the Board of taking such a course, as opposed to reserving its decision and giving settled reasons. However, that approach might have been taken at a cost to the adequacy of reasons given in respect of this most serious aspect of the charge.
I have recorded that five of the other six grounds were proved. In respect of ground 4 of the complaint the finding was in the following terms:
Turning to paragraph 4, we have taken into account the argument placed before us by counsel for the respondent with respect to the test set out in Briginshaw, that we must take account the seriousness of the allegations. We are aware that that test has some applicability. It would have been useful if counsel had elaborated on that argument in terms of its application under a legislative scheme that requires the board to act in the public interest and with the safety and health of the public in mind to what extent the seriousness of the allegations against the doctor are to be balanced against acting in the public interest. However, as noted earlier, we did take account of the seriousness of the allegations and spent some quite considerable time deliberating on the events that were placed before us.
The board did come to the conclusion that there were some aspects of Ms Smith’s testimony that were not convincing; in particular, in relation to her relationship with the doctor. However, in reviewing the testimony of the doctor, there were also inadequacies and discrepancies in the testimony of the doctor. Looking at the testimony in front of the board, we came to the conclusion that Ms Smith’s version of events with respect to the script itself and the manner in which that script came to be written was more plausible than the alternative theory put forward. Therefore, we find that paragraphs 4.1, 4.2 and 4.3 have been established.
We would also note that even if the doctor’s testimony had been accepted and that a script was written for Ms Smith because she was feeling unwell, that this would amount to unprofessional conduct, as no sufficient examination was made of Ms Smith; that no history was taken from her to determine whether she was likely to suffer any allergic reactions to the medication – and it is a form of medication that can produce allergic reactions – and that no attempt was made to find out whether any of her other medication or any other ailment she might have then suffered could have caused an adverse reaction with the medication. It is not professional to write a script for someone because you believe they are feeling unwell without a sufficient examination of the patient.
The entire reasons for the finding run to some fourteen pages. It can be seen that less time was spent in giving reasons for this allegation, than for the other grounds. I focus first on the second of the three paragraphs set out.
Complaints arising from the Board’s reasons
Counsel argued that the reference to the Briginshaw argument disclosed an error of approach. He put that the reference to a tension between the Briginshaw principle and the Board’s obligation to act in the public interest confused two different interests which were not in conflict. The Board’s remarks arose from earlier submissions put to it.
In his closing submission to the Board, counsel for the appellant made particular reference to the discussion by members of the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 of the application of the civil standard of proof in cases where serious allegations, even allegations of criminal conduct, were concerned. In that case the allegation was one of adultery, but the court treated its gravity as akin to an allegation of criminal conduct. There the majority of the court agreed, in separate judgments, that the strictness of proof required to discharge the civil onus should be governed by the nature of the issue and its consequences: Latham CJ at 343-344, Rich J at 350, Dixon J at 362, McTiernan J at 372. Rich J at 350 said that what was required was “the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the Tribunal had reached both a correct and just conclusion”. Starke J said, at 352, that what was required was a “strength of conviction” in the mind of the Tribunal. Dixon J, at 361, said that: “a mere preponderance of evidence, such as would induce a jury to incline to the one side rather than the other, is frequently insufficient”. His Honour said: “the Tribunal must feel an actual persuasion”. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 the High Court confirmed that such statements should be understood as being directed to the quality of evidence required rather than the standard of proof itself.
I do not think it is necessary to dwell on this submission. At first sight the conflict perceived by the Board might have implied that it misunderstood its task or had some sort of philosophical difficulty in reconciling requirements placed upon it. However, I consider that in the context of ex tempore remarks and bearing in mind that the Board’s final position on this issue was that it was aware of the seriousness of the allegations and took account of them, nothing turns on the debate about Briginshaw. In any event, the further complaints to which I am about to turn are of much greater significance.
Counsel for the appellant complained that the reasons given were inadequate. There was no explanation for why the Board had found itself able to overlook the aspects of Ms Smith’s testimony which were “not convincing”, or even any specificity as to what those aspects were. Counsel submitted that, importantly, there was not even a statement to the effect that Ms Smith’s evidence on the crucial allegation was cogent, convincing or the like. Rather, having referred to the appellant’s evidence as an “alternative theory” – unfairly as the appellant submitted – the Board determined that upon a comparison of the two, Ms Smith’s evidence was “more plausible”.
The obligation to give reasons
At common law there is no general rule that requires that reasons be given for administrative decisions: Public Service Board (NSW) v Osmond (1986) 159 CLR 656 per Gibbs CJ at 662-3, Wilson, Brennan and Dawson JJ agreeing. In this state, the Medical Tribunal, comprising a District Court judge, medical practitioners and a lay member, has been seen as exercising a quasi judicial function and the obligation to state reasons for its decisions have been categorised as an incident of the right of appeal provided in s 65 of the Act and indeed in its predecessor, the Medical Practitioners Act 1983: T v Medical Boardof South Australia (1992) 58 SASR 382, per Matheson J at 388-9 and Olsson J at 408-9. I think the same observations may be made of the Medical Board.
A similar view has been taken in other Australian jurisdictions. In Aronson, Dyer & Groves, Judicial Review of Administrative Action (3rd ed, Thomsons, 2004) p 560 the learned authors refer to “a line of authority attracting growing support in the Supreme Courts which holds that a duty to give reasons may be implied to facilitate the exercise of a statutory right to appeal from an administrative decision”. Cases there cited include T v Medical Board of South Australia.
In Marta Stefan v General Medical Council [1999] 1 WLR 1293, the Privy Council discussed the obligation upon the Health Committee of the General Medical Council to give reasons for a decision. It had adjudged a doctor’s fitness to practise to be “seriously impaired” and suspended her registration indefinitely. The right of appeal was upon a question of law only. Lord Clyde, speaking for their Lordships, found that although there was no express statutory duty upon the Committee to state reasons for its decisions, the existence of a right of appeal was at least one indication pointing to such an obligation. In considering whether the common law required reasons, Lord Clyde acknowledged (at 1301-2) the established position of the common law that reasons were not required as a universal rule for all decision-makers. However his Lordship found that in this case there was a duty cast upon the Health Committee, both because the functions performed by it rendered it “akin to a court” and because of the availability of an appeal, even a restricted right, together with matters more specific to the particular facts. It was held that, at least a brief statement of reasons would always be required of the Health Committee.
In my view, that there is an obligation upon the Medical Board to give reasons cannot be doubted. The purpose of the giving of reasons is both to inform the parties (and in particular the losing party) of the basis for the decision as well as facilitating an appeal. The respondent did not contest this proposition.
A complaint that reasons given by a trial of fact are inadequate needs to be evaluated in the context of the nature of the hearing, the character and significance of the particular issue under consideration and the type of evidence bearing on that issue. (See, for example, Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; R v Keyte (2000) 78 SASR 68; Fox v Percy (2003) 214 CLR 118; R v Power (2003) 226 LSJS 337; R v Beard [2004] SASC 411.) The reasons of a lay panel are not to be examined and assessed as if they were written by a judicial officer: Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367.
Here, as I have said, ground 4 was seen by the parties as the most serious allegation. A good deal of evidence focussed upon it. It was keenly contested. The suggested exaggerations, inconsistencies and gratuitous comments in Ms Smith’s evidence in relation to the appellant did not disentitle the Board from accepting her evidence. However, some of the points made in cross-examination on behalf of the appellant were matters of substance which might have given the Board reason for caution in relying on Ms Smith’s evidence.
In my view such was the attack on Ms Smith’s credit, and such was the importance of ground 4 in the charge of unprofessional conduct, that the appellant was entitled to know that his denials of it and the wide-ranging attack mounted against Ms Smith’s evidence were given proper consideration by the Board. I would be slow to impute to the Board the same obligations in terms of scope or expression of reasons which a court bears, but the fact remains that what was at stake here was a serious matter, the resolution of which was likely to have a severe impact on the appellant’s entitlement to practise his profession.
However, the appellant’s complaint was not confined to the absence or dearth of reasons. The appellant also complained that even the brief reasons given disclosed error.
Having compared the competing versions of the writing of the prescriptions, Ms Smith was found by the Board to be “more plausible”. My feeling is that this statement is to be interpreted as a finding that there were fewer inherent improbabilities attending Ms Smith’s account than the appellant’s; as opposed to a comparison of the manner of giving evidence of each witness. I am fortified in that view by the lack of any reference in the findings to the demeanour of either witness. However that may be, the epithet “plausible”, which I perceive to mean “apparently truthful or acceptable”, does not indicate a state of mind of such persuasion as to answer the descriptions coined in Briginshaw of what is required; for example, “strength of conviction”, “actual persuasion”, or “comfortable satisfaction”. I acknowledge that having regard to the competing versions given, it was likely that one or other version was correct. However, that is not to say that either version of events was a persuasive account, such as to justify a finding on the balance of probabilities. A mere preponderance of evidence was not necessarily sufficient. Since the Board was plainly not satisfied of the entirety of Ms Smith’s evidence, my opinion is that it was necessary for the Board to say why it believed Ms Smith on the essential allegation, in the face of its inability to do so on one or more other issues, if that was indeed its position.
The Board said that there were “inadequacies and discrepancies” in the appellant’s account. It spoke of that account as an “alternative theory”. Counsel for the appellant contended that this description unfairly depreciated the appellant’s account. It is true that the appellant’s evidence about the incident was somewhat impenetrable. However, the fact is he denied Ms Smith’s allegation and said that he would not have acted as she claimed. If the Board concluded that his evidence was a concoction designed to innocently explain the documentary evidence, it should have said so. In the absence of the finding of that type, I do not think the pejorative term “alternative theory” was justified. It is quite reasonable, as a general rule, for witnesses not having a clear recollection of a task routinely undertaken, to speak of their practice, and to deny that they would have departed from it. The appellant’s evidence was more than that. He claimed a recollection, but said it was, in effect, muddied by the repeated recounting of it and by the passage of time.
Conclusion as to adequacy of reasons
In summary, the manner of the Board’s expression of its reasons on this ground leaves me with the impression that it might have failed to correctly apply the burden and standard of proof. In addition, I consider that having regard to the concessions forced upon Ms Smith in cross-examination, and the other unusual aspects of her evidence, it was necessary for the Board, if it were to find the allegation proved despite the demonstrated infirmities in her evidence, to articulate both its belief of her evidence and the reasons why it was able to reach that position. In my view there are cogent reasons to depart from the Board’s finding and it must be set aside.
The third paragraph of the excerpt set out above – what I shall call the alternative analysis – was also subjected to criticism by counsel for the appellant. It was suggested that at no stage in the hearing had it been put to the appellant that, on the basis of his own evidence about the prescription, he was guilty of unprofessional conduct. That is, that he had not been alerted to the possibility of a finding against him in those terms. Therefore it was said that he had not been afforded procedural fairness and that the alternative analysis said to justify the finding was not, in fact, available to the Board.
I do not accept the submission. It should be observed immediately that in any event, according to its clear statement, the Board found against the appellant on the facts as alleged. On the reasons as expressed there is no room for a suggestion that some members of the Board, being unsatisfied as to Ms Smith’s evidence, found unprofessional practice proved on the basis of the appellant’s answer to this allegation. Nor indeed did counsel for the appellant suggest so. Rather, it was argued that should this court overturn the Board’s finding on ground 4, it should not decline to intervene because of the alternative analysis.
I do not consider that there is any substance to this complaint. In my view, the Board was not obliged to alert the appellant that his own evidence in answer to the allegation placed him in jeopardy of an adverse finding. It is not as if the Board acted on some fresh combination of facts which had not previously been assembled in the course of the case. Rather, it was analysing the facts as put forward by the appellant. The complaint comes down to one of counsel being deprived of the opportunity of arguing that the Board was wrong to characterise the conduct described by the appellant as unprofessional. That characterisation stands or falls on its merits. It was not put to me as part of the argument in this appeal that the characterisation was incorrect. I do not think it was for the Board to alert the appellant to the dangers of the version of events which he was advancing in evidence.
Disposition
However, having regard to the decision I have made, and remembering the seriousness of the allegation comprising ground 4, I do not think it is appropriate to simply fall back on the alternative analysis given by the Board. It amounts to conduct of a markedly different character from the allegation contained in ground 4. I consider that the appellant is entitled to have the matter considered afresh by the Board. If the issue were simply that the Board’s reasons did not adequately explain its findings, a solution might simply have been to have requested more by way of explanation for this finding. However, because of the criticisms I have made of the reasons advanced by the Board, I think it is inappropriate to remit the matter to the Board as it was then constituted. Accordingly, if the Registrar considers that the matter is of sufficient importance that it requires to be re-litigated, then that can occur before a Board of different composition.
It remains to consider what should be done in respect of the fine imposed on the appellant under s 51 of the Act.
The amended notice of appeal contained a ground contending that the imposition of the maximum fine was manifestly excessive. It was acknowledged in submissions that if the Board’s findings stood, then it was difficult to support such a ground. However, in circumstances in which the finding on ground 4 was set aside, it was put that the fine should be reduced. I was asked to make an appropriate reduction myself, rather than remitting the task to the Board. I acknowledge that I do not have the specialist knowledge of the Board in evaluating the appropriate sanctions. Having said that, it seems to me that, however the matter is viewed, the appropriate path is to reduce the amount of the penalty to some extent. Since it was acknowledged by both sides that ground 4 was the most serious allegation, I think a reasonably significant reduction is justified. On the other hand, such are the seriousness and number of the other allegations which were made out, that a substantial fine is justified. Having weighed the competing arguments as best I can I have determined that the amount of the fine should be reduced to $3,500.
Accordingly the orders of the court are:
1.allow the appeal;
2.set aside the determination of the Medical Board insofar as it rested on ground 4, but affirm the finding of unprofessional conduct on the basis of the other proven grounds;
3.remit the allegation contained in ground 4 of the complaint to the Medical Board to be dealt with according to law;
4.set aside the fine of $5,000 imposed under s 51 Medical Practice Act 2004 and impose in its place a fine in the sum of $3,500.
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