MEDICAL BOARD OF AUSTRALIA and LAL - [2019] WASAT 13

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION:   MEDICAL BOARD OF AUSTRALIA and LAL [2019] WASAT 13
MEMBER:   JUDGE T SHARP, PRESIDENT (ACTING)
MR P DE VILLIERS, MEMBER
DR H HANKEY, SENIOR SESSIONAL MEMBER

HEARD:   3 DECEMBER 2018
DELIVERED          :   20 MARCH 2019
FILE NO/S:   VR 13 of 2016
BETWEEN:   MEDICAL BOARD OF AUSTRALIA
Applicant
AND
VIPIN LAL
Respondent

Catchwords:

Medical practitioner Disciplinary proceedings - Professional misconduct - Sexual misconduct - Misleading clinical notes - False statements Penalty Cancellation of registration - Disbarred from applying for registration Costs

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010, s 5, s 156, s196(2), s 196(2)(a), s 196(2)(e), s 196(4)(a)
State Administrative Tribunal Act 2004 (WA), s 87

Result:

Respondent's registration cancelled and respondent disqualified from applying for registration for four years
Respondent pay Board's costs

Category: B

Representation:

Counsel:

Applicant	:	Ms M Naylor
Respondent	:	Mr T Percy QC and Ms A Lynch

Solicitors:

Applicant	:	Tottle Partners
Respondent	:	Clayton Utz

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

Craig v Medical Board of South Australia (2001) 79 SASR 545
Jemielita v Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Lal v Medical Board of Australia [2018] WASCA 109
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)
Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S)
Legal Profession Complaints Committee and Leask [2010] WASAT 133
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Legal Profession Complaints Committee v Masten [2011] WASC 71
Medical Board of Australia and Lal [2017] WASAT 23
Stirling v Legal Services Commissioner [2013] VSCA 374

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The background to this decision and the Tribunal's reasons for it are set out in the decision of the Court of Appeal in Lal v Medical Board of Australia [2018] WASCA 109 (Appeal Decision), delivered on 4 July 2018.
The proceedings in the Tribunal first commenced on 25 January 2016, when an application was made to the Tribunal by the applicant (Board) for disciplinary action against the respondent (Dr Lal). The Board sought orders that Dr Lal had behaved in a way that constituted professional misconduct, and that the Tribunal cancel his registration as a medical practitioner and disqualify him from applying for registration for a specified period of time.
The grounds upon which those orders were sought are specified and described in the application and in the Appeal Decision under six headings, namely:
1.breach of professional boundaries;
2.sexual misconduct;
3.misleading entries in clinical notes;
4.making false statements to the Australian Health Practitioner Regulation Agency (AHPRA) and the Board;
5.making false statements in a witness statement to police in relation to a criminal complaint made by Dr Lal against a particular patient (who will be referred to as the Patient in these reasons); and
6.making false statements in a witness statement made for the purposes of the criminal prosecution of the Patient.
The Court of Appeal in the Appeal Decision set out the following background to the events which gave rise to the Board's allegations and the Tribunal adopts that description of the background.
In relation to the allegation of breach of professional boundaries, the Board alleged that between June 2010 and 18 November 2013, Dr Lal failed to properly maintain proper professional boundaries with the Patient, and in particular:
(a)in the period July 2010 - 18 November 2013, Dr Lal frequently hugged the Patient at consultations;
(b)in early 2011 during a consultation with the Patient, Dr Lal said to the Patient words to the effect of 'when are we going to go out for tea';
(c)in early 2011 during a consultation with the Patient, Dr Lal said to the Patient words to the effect of 'I'll take you on holiday one day';
(d)on a date between February 2013 and July 2013 during a consultation with the Patient, Dr Lal hugged the Patient for approximately one minute and said words to the effect of 'I could stay here forever';
(e)in or about February 2013, following the cryotherapy treatment of vaginal lesions and performance of a pap smear on the Patient, Dr Lal hugged the Patient, kissed her on the mouth for approximately 30 seconds and stroked her back;
(f)from approximately July 2013 to 18 November 2013, Dr Lal frequently hugged and kissed the Patient when she consulted with him.
The Board further alleged that Dr Lal's conduct was aggravated by the fact that he had treated the Patient for gynaecological issues and in or about September 2013 had provided her with medication to increase her libido.
In relation to the allegation of sexual misconduct, the Board alleged in its application that Dr Lal engaged in sexual misconduct with the Patient during the course of a consultation on 18 November 2013 and in particular had:
(a)embraced the Patient;
(b)fondled the Patient's breast;
(c)rubbed the Patient's genitals; and
(d)digitally penetrated the Patient's vagina.
The Board further asserted that the Patient performed fellatio on Dr Lal on the same occasion. The Board alleged that this conduct was aggravated by the same matters which aggravated Dr Lal's breach of professional boundaries.
The allegation of making misleading entries in clinical notes related to the misleading notes Dr Lal made in respect of his consultations with the Patient on 18 and 22 November 2013.
The allegation of making false statements to AHPRA and the Board related to Dr Lal's initial denials that he had engaged in any form of sexual conduct with the Patient, before later admitting that his penis had been in the Patient's mouth, although he claimed that the Patient had initiated that sexual conduct which had not been consensual from his perspective, all of which statements were false.
The first allegation of making false statements in a witness statement to police related to a statement which Dr Lal signed on 27 December 2013 in which he denied engaging in any form of sexual conduct with the Patient.
The second allegation of making false statements in a witness statement related to a further witness statement signed by Dr Lal on 15 April 2015 in which he admitted that his penis had been in the Patient's mouth on 18 November 2013, but asserted that the Patient had initiated the sexual contact between them and implied that the Patient had not been consensual from his perspective, which assertions were false.
The statements made by Dr Lal to police were made in support of his allegation that the Patient had attempted to extort $10,000 from him, as a result of which the Patient was charged with a criminal offence. The charge brought against the Patient was tried in the District Court in November 2015. Dr Lal gave evidence at the trial. The Patient was acquitted.
On 8 March 2016 Dr Lal filed a response to the Board's application. In that response he denied the general and specific allegations made to the effect that he had failed to properly maintain proper professional boundaries with the Patient. He also denied all allegations of sexual misconduct on 18 November 2013 other than to admit that the Patient performed fellatio on him and to assert that this was done without his consent. Dr Lal denied making misleading entries in the clinical notes relating to the Patient's consultation on 18 and 22 November 2013. He admitted that some of the statements which he made to AHPRA and the Board were false, but denied that others were false. Similarly, while he admitted that aspects of his first statement to police were false, he denied others. He denied that the statements made in his second witness statement to police were false; Appeal Decision at [10].

The agreed facts

The Tribunal made orders for the filing of witness statements and the documents upon which the parties intended to rely at the hearing and the matter was listed for a final hearing for a duration of three days to commence on 9 November 2016. However, following conferral between the parties, a document entitled 'minute of proposed consent orders' was signed by the solicitors acting for the Board and for Dr Lal (Minute) and filed with the Tribunal on 4 October 2016. The Minute was in the form of a proposed order to be made by the Tribunal 'on the application of the parties to settle the allegations in the proceedings at paragraphs [1] to [6] of the Grounds'. The Minute, which is set out in full below, notes that the parties had agreed in writing the terms upon which the allegations in the proceedings could be settled and includes agreed relevant background facts set out in a schedule to the Minute.
The Minute is as follows:
On the application of the parties to settle the allegations in the proceedings, at paragraphs [1] to [6] of the Grounds, determined by
The Tribunal Notes:
The Medical Board of Australia alleged that there was proper cause for disciplinary action against Dr Lal pursuant to section 196 of the of the [sic] Health Practitioner Regulation National Law (WA) Act 2010 (National Law) because Dr Lal, in the course of his practice as a medical practitioner, behaved in a way that constituted professional misconduct pursuant to section 196(1)(b)(iii) of the National Law, or alternatively constituted unprofessional conduct pursuant to section 196(1)(b)(ii) National Law, or alternatively constituted unsatisfactory professional performance pursuant to section 196(1)(b)(i) of the National Law.
By written agreement between the parties dated 7 September and 3 October 2016 the parties agreed the terms upon which the allegations in the proceedings could be settled.
The parties have agreed relevant background facts set out in the Schedule attached to this order (Schedule).
The remaining issue for determination, should the Tribunal agree to make these consent orders, is the terms of any order/s to be made under section 196(2) and (4) of the National Law (that is, penalty) and under section 87(2) of the State Administrative Tribunal Act 2004 (WA) (that is, costs).
The Tribunal Orders:
Being satisfied by reason of Dr Lal's admissions that proper cause exists for disciplinary action against Dr Lal, and further, by reason of the matters set out in the agreed facts, and in order to give effect to the terms of the settlement of the allegations in the proceeding, being satisfied that the Tribunal would have the power to make a decision in the terms of the agreed settlement of the allegations or in terms that are consistent with the terms of the agreed settlement of the allegations, it is on the day of 2016 ordered pursuant to section 56(1) of the State Administrative Tribunal Act 2004 (WA) and pursuant to the National Law, that:
1.Sexual Misconduct
1.1Dr Lal, in the course of his practice as a medical practitioner registered under the National Law, behaved in a way that constitutes professional misconduct in that on 18 November 2013, Dr Lal engaged in sexual contact with the Patient during the course of a consultation at Dr Lal's practice at the at the [sic] Trappers Drive Medical Centre in Woodvale ('Trappers Drive Medical Centre'). The sexual contact involved the performance of fellatio upon Dr Lal by the Patient.
1.2The conduct as set out in paragraph 1.1 above was aggravated by the fact that Dr Lal had treated the Patient for gynaecological issues, and in or about September 2013, had provided her with medication to increase her libido.
1.3In having sexual contact with the Patient, Dr Lal breached section 8.2 of the Medical Board of Australia's 'Good Medical Practice: A Code of Conduct for Doctors in Australia'.
2.Misleading Entries in Clinical Notes
Dr Lal, in the course of his practice as a medical practitioner registered under the National Law, behaved in a way that constitutes professional misconduct in that:
2.1Following the consultation on 18 November 2013, Dr Lal made a misleading entry in the clinical notes for the Patient at the Trappers Drive Medical Centre on that date, indicating that Dr Lal had examined and advised the Patient regarding lower back pain, when no such examination had been undertaken and no such advice had been given.
2.2Following a consultation with the Patient on 22 November 2013, which the Patient had attended an appointment with Dr Lal to discuss the sexual contact between them, Dr Lal made a further misleading entry in the clinical notes for the Patient at the Trappers Drive Medical Centre on that date, indicating that:
(a)Dr Lal had counselled the Patient regarding issues with her partner;
(b)Dr Lal had advised the Patient of contacts for psychiatric emergency and resources for women
when in fact, neither of those things had been discussed with the Patient.
3.Making False Statements to AHPRA and the Board
Dr Lal, in the course of his practice as a medical practitioner registered under the National Law, behaved in a way that constitutes professional misconduct in that:
3.1On 14 January 2014, in a response to a notification dated 28 November 2013 which had been made against him by the Patient to the Australian Health Practitioner Regulation Agency (AHPRA), for referral to the applicant under the National Law (the Notification), Dr Lal made a number of false statements as follows:
(a)He denied that 'anything of a sexual or romantic nature', or 'sexual activity' took place during the consultation with the Patient on 18 November 2013.
(b)He said that the allegations of sexual contact made by the Patient were 'false allegations'.
(c)He said that he had not embraced, or engaged in any kind of sexual activity with the Patient.
(d)He denied that the Patient had performed fellatio on him.
(e)He said that during the course of a consultation on 22 November 2013, the Patient had made forceful demands for stronger pain killers and calmatives than those already prescribed for her.
3.2The statements set out in paragraph 3.1 above were false, and were made to discredit the Patient and influence the applicant in relation to the outcome of the Notification.
3.3On 31 March 2015, Dr Lal wrote a letter to an investigator employed by AHPRA, in which:
(a)He admitted that he had not provided a full and candid response to the Patient's notification, in his letter to AHPRA of 14 January 2014.
(b)He admitted that his penis had been in the Patient's mouth.
(c)He claimed that the Patient had initiated the sexual contact between them.
(d)He implied that the sexual contact with the Patient had not been consensual from his perspective.
3.4The statements set out in paragraph 3.3(c) and 3.3(d) above were false statements, and were made to influence the applicant in relation to the outcome of the Notification.
4.Making Incorrect Statements in a Witness Statement to Police in Relation to a Criminal Complaint against the Patient
Dr Lal, in the course of his practice as a medical practitioner registered under the National Law, behaved in a way that constitutes professional misconduct in that:
4.1On 27 December 2013, Dr Lal signed a statement before a police officer who was investigating a criminal complaint that he had made to police regarding the Patient (First Statement).
4.2In the First Statement, Dr Lal said:
(a)His consultation with the Patient on 18 November 2013 was a normal consultation without issue.
(b)His consultation with the Patient on 22 November 2013 was a normal consultation.
4.3These statements were incorrect, and Dr Lal knew that they were incorrect at the time that he signed the First Statement.
5.Making Incorrect Statements in a Witness Statement Made for the Purposes of the Criminal Prosecution of the Patient
Dr Lal, in the course of his practice as a medical practitioner registered under the National Law, behaved in a way that constitutes professional misconduct in that:
5.1On 15 April 2015, Dr Lal signed a further witness statement for the purposes of a criminal prosecution of the Patient pursuant to section 397(2) of the Criminal Code (WA) (Second Statement) in which he admitted that:
(a)It was not correct that his consultation with the Patient on 18 November 2013 was a normal consultation without issue.
(b)His penis had been in the Patient's mouth at the consultation on 18 November 2013.
(c)It was not correct that his consultation with the Patient on 22 November 2013 was a normal consultation.
5.2Further, in the Second Statement, Dr Lal:
(a)Said that the Patient had initiated the sexual contact between them.
(b)Implied that the sexual contact between him and the Patient had not been consensual from his perspective.
5.3The statements set out in paragraphs 5.2(a) and 5.2(b) above were incorrect statements, which were made in a signed witness statement that Dr Lal was aware would be used for the purposes of a criminal trial in the District Court of Western Australia.
SCHEDULE
The parties have agreed the following background facts:
1.Breach of Professional Boundaries
1.1Dr Lal failed to properly maintain proper professional boundaries with the Patient in the period June 2010 to 18 November 2013 in that he hugged the Patient, kissed the Patient, and made remarks of a personal nature to the Patient all of which gave rise to a view on the part of the Patient that Dr Lal was interested in the establishment of an intimate personal relationship with her.
1.2Dr Lal's conduct as set out in paragraph 1.1 above was aggravated by the fact that Dr Lal had treated the Patient for gynaecological issues, and had provided her with medication to increase her libido.
1.3The failure to maintain proper professional boundaries was in breach of section 8.2 of the Medical Board of Australia's 'Good Medical Practice: A Code of Conduct for Doctors in Australia'.
Although the Minute was filed with the Tribunal on 4 October 2016, orders in the terms agreed between the parties were not made. This was due to an oversight on the part of the Tribunal, and it is clear that the Tribunal intended to make such orders.
Consistent with this view, on the same date, 4 October 2016, the final hearing about Dr Lal's conduct which had been listed was vacated, and the matter was instead listed for a hearing with respect to penalty and costs only. Orders were made requiring the parties to exchange submissions and any further evidence in relation to penalty and costs.
The Tribunal is satisfied that it has the power to make orders in terms of the Minute and will make those orders.

The hearing and the original penalty decision

The matter came before the Tribunal for hearing with respect to penalty and costs on 10 November 2016. Counsel for the parties spoke to the written submissions which had been exchanged.
The Tribunal reserved its decision and published its reasons for decision on 31 January 2017; Medical Board of Australia and Lal [2017] WASAT 23 (Original Decision).
In the Original Decision the Tribunal cancelled the registration of the respondent and disqualified him from applying for registration as a medical practitioner for a period of five years.
The Tribunal also ordered Dr Lal to pay the Board's costs to be assessed 'by the State Administrative Tribunal scale'.

The Original Decision was appealed to the Court of Appeal. By the Appeal Decision it was determined that the decision of the Tribunal should be set aside and the matter remitted to the Tribunal differently constituted for redetermination of the issue of penalty.
The issue on appeal was that in the Original Decision, the Tribunal took into account findings of fact which went beyond the agreed facts in the Minute. Dr Lal asserted that he was denied procedural fairness on the basis that he was given no notice of the Tribunal's intention to make those findings of fact, nor any opportunity to make submissions regarding those findings. The Court of Appeal found in Dr Lal's favour on these matters.
Dr Lal's name had in the meantime, on 31 January 2017, been removed from the register of medical practitioners, and he has not practised since that date to the present time. He gave the following undertaking to the Court of Appeal on 4 July 2018, the date of delivery of the Appeal Decision:
a)He will not practise as a medical practitioner until the final redetermination of the State Administrative Tribunal (WA) (Tribunal) proceedings (VR 13 of 2016) (Proceeding) by the Tribunal or further order of this Court.
b)He will not apply to be registered as a medical practitioner pursuant to the Health Practitioner Regulation National Law 2010 until the final redetermination of the Proceeding by the Tribunal or further order of this Court.

Current proceedings in the Tribunal

Following the Appeal Decision, the Tribunal was reconstituted in accordance with the orders of the Court of Appeal. The parties were invited to make submissions on penalty and costs, and the matter was heard on 3 December 2018 (New Penalty Hearing).

Issues for determination

The principal issue for the Tribunal as differently constituted is the penalty to be imposed on Dr Lal, and, if the Tribunal decides that the registration of Dr Lal should be cancelled, the period for which he should be disqualified from applying for registration as a medical practitioner.
Also for determination is the Board's application for costs in the proceedings.

Legislative framework

Professional misconduct

The term 'professional misconduct' is defined in s 5 of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) as including:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession[.]
The first and second limbs of the definition of 'professional misconduct' incorporate the term 'unprofessional conduct' which is in turn defined in s 5 of the National Law as:
[P]rofessional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes:
(a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b)a contravention by the practitioner of
(i)a condition to which the practitioner’s registration was subject; or
(ii)an undertaking given by the practitioner to the National Board that registers the practitioner;
and
(c)the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession; and
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person’s well being; and
(e)influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(f)accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and
(g)offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h)referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation[.]

The Tribunal's powers in relation to penalty and costs

The Tribunal's powers in relation to penalty are set out in s 196(2) of the National Law which provides the Tribunal may decide to do one or more of the following:
(a)caution or reprimand the practitioner;
(b)impose a condition on the practitioner's registration, including, for example
(i)a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii)a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv)a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v)a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi)a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c)require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;
(d)suspend the practitioner's registration for a specified period;
(e)cancel the practitioner's registration.
Section 196(4)(a) of the National Law provides:
If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to
disqualify the person from applying for registration as a registered health practitioner for a specified period[.]

General principles in relation to penalty

It is well recognised and not in dispute between the parties that vocational disciplinary proceedings have the objects of protecting the public, maintaining the high standards and good reputation of the profession generally in the eyes of the community and the need to deter others who may be of a like mind to transgress in the future; Jemielita v Medical Board of Western Australia (unreported, WASC, Library No 920584, 13 November 1992 (Jemielita) at 141.
What Owen J said in Jemielita (at 140 to 142) is worthwhile repeating in full:
The general principles which are applicable are not difficult to state. The primary consideration is the public interest. The consequence of an adverse finding is drastic for the practitioner. The purpose of providing such a drastic consequence is not punishment of the practitioner as such, but protection of the public. The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements: see Pillai v Messiter(No 2) (1989) 16 NSWLR 197 per Kirby P at 201.
There is also a need to maintain the high standards and good reputation of the profession generally in the eyes of the community: see Ziderman v General Dental Council (1976) 1 WLR 330 at 333. A further consideration is the need to deter others who may be of a like mind to transgress in the future: see Giordano v Medical Board (198384) 36 SASR 83 at 87. In applying these considerations a tribunal must also bear in mind the warning delivered by Devlin J in Hughes v Architects Registration Council of the United Kingdom [1957] 2 QB 550 at 563:
'There is something more important than the standing of a profession about which the council is naturally and properly concerned. There is the right of every man to earn his living in whatever way he chooses unless by the law or by his own voluntary submission his way is taken from him.'
There is one final matter of a general nature which I should mention. The respondent has a wide discretion in relation to penalty. The mere fact that there has been a finding of infamous conduct or of gross carelessness or incompetency, does not mean that any particular penalty must follow as of course. An act or omission may constitute infamous conduct but that does not necessarily mean that striking off is the appropriate penalty. The respondent is required to consider all of the circumstances surrounding the act or omission and to exercise the discretion accordingly.
Similarly, in Craig v Medical Board of South Australia (2001) 79 SASR 545, Doyle CJ said at [45][48]:
While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions.
In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt [NSW Bar Association v Evatt (1968) 117 CLR 177 at 183] shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.
In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.
I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practise, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for.
Murphy and Beech JJA in Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Khosa) at [188][195], (concerning a legal practitioner, but nonetheless in the Tribunal's view equally relevant in the case of a medical practitioner) observed:
The court's, and the Tribunal's, jurisdiction with respect to the regulation of the profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession.
The protection of the public includes both general deterrence of other practitioners who might otherwise be tempted to engage in such conduct, as well as personal deterrence.
In New South Wales Bar Association v Hamman, Mason P said, with reference to the decision of Giles AJA in Law Society of New South Wales v Foreman (No 2):
Giles AJA described the basis of the court's jurisdiction: at 4701. Citing Bannister [Law Society of New South Wales v Bannister [1993] NSWCA 157] and other cases, he referred to the protective function of general deterrence in the following terms (at 471):
But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.
These references to the public's perception of the court's reaction to the professional misconduct do not make the court hostage to the public's assumed sense of anger at the misconduct uncovered. The court must be satisfied that its enunciated views give proper weight to widely and reasonably held public attitudes to practitioners in the context of the administration of justice generally and in the particular case.
In general terms, where the conclusion is reached that a practitioner is presently unfit to practise, a choice may be made between suspension and striking off. If an order for suspension is made in that event, it must be made on the basis that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise because, at the end of the relevant period, the practitioner's name will still be on the roll of practitioners and may resume practise. Suspension is a 'serious form of discipline which is usually imposed to discipline the legal practitioner, who has committed an act of unprofessional conduct but who, in the opinion of the court, at the end of the period of suspension, will be a fit and proper person to practise the law'. In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations 'reflecting, to a significant degree, upon the practitioner's fitness to practise'.
Where, however, the present unfitness to practise reveals that the practitioner lacks the character and trustworthiness necessary to discharge the responsibilities of legal practice, or that the practitioner is permanently or indefinitely unfit to practise, striking off rather than suspension will (at least ordinarily) be the appropriate response.
A failure on the part of the practitioner to appreciate the impropriety of his or her conduct may support a finding of unfitness to practise. A reason for this is that the lack of appreciation of impropriety and the lack of insight increases the risk of recurrence of the improper conduct.
A suspension order may also be a valuable measure by way of general or personal deterrence, for the protection of the public and the maintenance of the reputation and standards of the legal profession, even without concluding that the conduct demonstrated or should be characterised as indicating that the practitioner was not a fit and proper person. A suspension order entails greater denunciatory and deterrent effect than a reprimand and fine.
Fitness to practise for the purpose of penalty orders is to be determined at the time of the relevant hearing, and not at the time of the misconduct. The same is true of the question of the appropriate penalty generally.
(Citations omitted)
The determination of the appropriate penalty is discretionary. In Khosa at [44] Buss P described the exercise of this discretion (referring to the decision at first instance) in the following way:
The determination of the appropriate penalty option or options was not a mechanical process. The Tribunal had to balance competing considerations and choose between the various penalty options. This entailed assessments of fact and degree and the making of a value judgment. There was no unique 'right' answer which was able to be identified by the application of principle.
The impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations; Legal Profession Complaints Committee v Detata [2012] WASCA 214 at [47]; Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29]; Legal Profession Complaints Committee and Leask [2010] WASAT 133 at [54].
There are circumstances in which a 'global' approach to sanction, rather than the imposition of a separate sanction for each finding as to conduct, may be more appropriate in vocational disciplinary proceedings, namely where the facts of the case are so inextricably woven as to make it difficult to meet a clear standard of prescription; Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) at [18][19]; Stirling v Legal Services Commissioner [2013] VSCA 374 at [72][75].

Considerations when assessing a penalty

It follows from the principles set out above that the matters which should be taken into consideration when determining the appropriate penalty this case are:
a)the need to protect the public:
i)against further misconduct by Dr Lal;
ii)through general deterrence of other practitioners from similar conduct; and
iii)by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval;
b)whether or not the incident was isolated such that the Tribunal can be satisfied of Dr Lal's worthiness or reliability in the future;
c)whether or not Dr Lal understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by him;
d)Dr Lal's disciplinary history; and
e)Dr Lal's personal circumstances at the time of the conduct and at the time of imposing the sanction.
However, the Tribunal may also consider any other matters relevant to Dr Lal's fitness to practise including matters which may be regarded as aggravating the conduct or mitigating its seriousness. In general though, mitigating factors such as the absence of any previous misconduct are of considerably less significance than in a criminal process, because the jurisdiction is protective rather than punitive.

The Board's submissions

The Board seeks the following orders from the Tribunal:
a)pursuant to section 196(2)(a) of the National Law, that Dr Lal is reprimanded;
b)a finding that, had Dr Lal still been on the register of medical practitioners under the National Law, the Tribunal would have cancelled his registration pursuant to section 196(2)(e) of the National Law; and
c)an order disqualifying Dr Lal from applying for registration for a period of between two and five years.
The Board says that it is 'difficult to find a parallel in other cases for [Dr Lal's] sustained and repetitive dishonesty. When that dishonesty is coupled with boundary crossing and sexual misconduct, a very substantial period of disqualification from applying for registration must be imposed …', Board's submissions filed on 5 November 2018 (Board's Submissions).

The Board had stated in the Board's Submissions that it was seeking an order under s 196(4)(a) of the National Law for a period of five to seven years but later clarified that it had made an error, and the appropriate range of disqualification from applying for registration it sought is instead two to five years; paras 2-3 of the Board's submissions in reply to Dr Lal's submissions as to penalty.
The Board submits that by analogy with resentencing an offender following a successful appeal in a criminal matter, the period of disqualification imposed in this matter should not be greater than the five-year period which was imposed by the Original Decision.
The Board says in the Board's Submissions at paras 3334:
The public must be protected against doctors who breach professional sexual boundaries with patients, and against practitioners who engage in sexual relations with their patients. Patients have a right to attend their doctor free of the possibility of any sexual impropriety. The public needs to be protected against doctors like the respondent who are prepared to take advantage of inherent power disparity between doctor and patient … [.]
Further, the Board submits that there is a clear need for general and specific deterrence in the circumstances of this case; para 40 of the Board's Submissions.
The Board points out that Dr Lal has been the subject of one prior disciplinary finding and the taking of Immediate Action pursuant to s 156 of the National Law; para 65 of the Board's Submissions. However both parties agree that this disciplinary history is not relevant to the present matter (ts 8, 18, 21, 3 December 2018).
The Board further seeks costs in the amount of $55,000.

Dr Lal's submissions

Orders proposed

Dr Lal accepts it would be appropriate for penalty orders to be made that:
a)his registration is cancelled;
b)he is reprimanded;
c)he completes further training courses in relation to appropriate patient boundaries; and
d)he is disqualified from applying for registration for a period of two years, from 31 January 2017 when his registration was first cancelled by the Tribunal.

Length of prohibition

Dr Lal's agreement that an order cancelling his registration is an appropriate order is because of the agreed conduct and its characterisation. He accepts that he made a series of serious errors of judgment in his conduct relevant to the Patient, and that a period disqualifying him from applying for registration are appropriate. Therefore in his view the matter for determination of the Tribunal relates largely to the length of time for which the prohibition should be made.
Because of the Board's change of position, it is now unnecessary to include Dr Lal's concerns about the Board's original submission that Dr Lal be prohibited from reapplying for registration for a period of '5 to 7 years'.
Dr Lal submits that 'there are compelling reasons arising from the [Appeal Decision] as to why the prohibition on reapplying for registration ought to be significantly less than 5 years'; para 35 of Dr Lal's submissions on penalty.
Specifically, Dr Lal says this at para 39 of his submissions on penalty:
The original penalty, including the five year prohibition on reapplying for registration, was significantly inflated by the additional, aggravating findings made in error by the Tribunal. Therefore, any new penalty imposed by reference to the Agreed Facts (without the additional, aggravating material and findings set out at para 37) should therefore result in a significantly reduced penalty.
Dr Lal acknowledges that his conduct set out in the Minute at proposed order 2 (making misleading clinical notes) is unacceptable and serious, but states that such conduct does not warrant deregistration for a period of more than two years. Dr Lal highlights that at the time he made the relevant notes, he was under considerable personal stress.

Dr Lal's insight

Dr Lal submits that he has shown insight by admitting to all of the allegations made against him.
He rejects the Board's submissions that he only made full admissions shortly before the hearing, and at a time when he would have been aware that there was some forensic risk to him in giving evidence again in these proceedings.
Dr Lal instead contends that he admitted the falsity of the initial responses to AHPRA, the Board and the Police in March 2016, and as such, those admissions were made from the outset of these proceedings. He says that even admissions made at a later stage still involve a recognition of the errors made that is relevant.
Dr Lal submits that cancellation of his registration and a lengthy two year prohibition period are strong and persuasive deterrents to his conduct.
During the New Penalty Hearing counsel for Dr Lal submitted that Dr Lal has been seeking treatment from a psychologist, with ninety-two consultations since 2014 and that his 'rehabilitation is well and truly entrenched' (ts 26, 3 December 2018).

Dr Lal's personal circumstances

Dr Lal submits that he has been married for twenty-one years with two teenage children, and up until January 2017, was the sole income earner in his immediate family. He also financially supported his parents who are elderly and unwell and live with him (and are unable to claim any pension due to visa restrictions).
He says that he and his family, including his two children in high school, have felt extremely humiliated by media interviews given by the Patient.
At the hearing, counsel for Dr Lal stated:
He comes before this tribunal a broken and crashed man. He has always told us that he worked for Transperth but some difficulty he had to accept that – to – he had difficulty telling me that his actual position at Transperth is as a bus driver and he drives Uber cabs, and the loss of dignity and in the face of a very proud extended family, and in the face of his children, that is indeed a very significant cross to bear, much of which, at the end of the day, has been protracted by matters that weren't his fault.
(ts 25, 3 December 2018)
Dr Lal has put evidence before the Tribunal that his family home is heavily mortgaged and presently subject to a Deed of Forbearance with his bank and his family is suffering financial hardship.

Dr Lal's character and practice of medicine

Dr Lal submits that he made a series of very serious errors of judgment in relation to the Patient and the subsequent criminal and Board proceedings, representing a transgression from his usual conduct, demeanour and character. Dr Lal has provided character statements from his patients and colleagues attesting to his professionalism, skill and character.
Further, Dr Lal submits that he has good prospects of rehabilitation.

Disposition

The Tribunal has already noted that there are circumstances in which a 'global' approach to sanction, rather than the imposition of a separate sanction for each finding as to conduct, may be more appropriate in some cases. In the Tribunal's view, this is such a case. Dr Lal's misconduct is constituted by a course of behaviour and the Tribunal will apply a global penalty in respect of all of the conduct admitted to.
It is clear that both Dr Lal and the Board are in agreement that Dr Lal's registration as a medical practitioner should be cancelled. The Tribunal also agrees that this is an appropriate sanction. As the Court said in the Appeal Decision at [73], '[t]here is much to be said for the proposition that the only conclusion reasonably open on the facts admitted by Dr Lal is that his registration as a medical practitioner must be cancelled'.
Dr Lal is, of course, no longer registered as a medical practitioner and what is in contest between the parties is the appropriate length of time during which Dr Lal should be disqualified from applying for registration.
Some issue has been made of whether or not it is open to the Tribunal to make an order for the disqualification period to be greater than the period ordered in the Original Decision, namely five years. While the Tribunal is of the view that it is not restricted by the orders made in the Original Decision, it is unnecessary in this case to explore that issue any further.
The Tribunal considers that the appropriate penalty is that Dr Lal is reprimanded and his registration should be cancelled. However, with regard to the latter, because Dr Lal is not currently registered as a medical practitioner, he should be disqualified from applying for registration for a period of four years, that period to commence on the date of delivery of the Original Decision, namely 31 January 2017.
In coming to this conclusion, the Tribunal has taken the following matters into account.

Seriousness of Dr Lal's conduct

The seriousness of the misconduct engaged in by Dr Lal is acknowledged by counsel for Dr Lal:
What we say is that the agreed facts set out what the aggravating features of this are and there is no misapprehension that this is an extremely serious matter, but what we say it's not in the five year category.
(ts 23, 3 December 2018)
The practitioner engaged in a course of professional misconduct which abused the doctorpatient professional relationship and breached the high standard to which the community holds medical practitioners. The misconduct in this case is certainly at the higher end of the scale in terms of seriousness.
The Tribunal considers that the other findings made against Dr Lal, namely making misleading entries in clinical notes, making false statements to APRA and to the Board and making incorrect statements in a witness statement are also serious. However, the Tribunal has not made any finding of dishonesty against Dr Lal and the Tribunal will disregard the Board's submissions to that effect.

Protection of the public

In reaching its decision as to penalty, the Tribunal has taken into consideration that the dominant purpose of the disciplinary regulation of the medical profession is the protection of the public, which includes the maintenance of proper standards within the profession. It is essential that the reputation and standards of the medical profession are held to a high professional standard.
The Tribunal is of the view that the penalty in this case will act as a deterrence to Dr Lal from repeating this type of conduct. Further, it will deter other practitioners from engaging in misconduct of this nature.

Insight

At the hearing on 3 December 2018, counsel for Dr Lal stated:
Now, I would ask the tribunal to accept that he does show insight. It may not have been instantaneous.
(ts 25, 3 December 2018)
The Tribunal has considered this submission but does not give any weight to Dr Lal's expressions of insight and remorse in the context of the penalty to be applied. Remorse and insight may, of course, become relevant factors if Dr Lal decides to reapply for registration as a medical practitioner in the future.
Further, it has been put to the Tribunal that Dr Lal has taken steps to address his misconduct by seeking treatment from a psychologist, and that he has engaged in a mentoring relationship, is undertaking CPD requirements, has an expanded role in his Church and is volunteering in the community. These factors are accepted on the basis that they have not been challenged, and they were not tested in the course of the proceedings, but they will have no bearing on the outcome and the Tribunal does not regard them as mitigating factors in Dr Lal's misconduct.
The Tribunal will treat the character statements put forward by Dr Lal in the same manner.

Dr Lal's personal circumstances

The personal circumstances of Dr Lal in this matter have also been considered but have no bearing on the decision of the Tribunal. We note that Dr Lal is suffering financial hardship and we accept that Dr Lal's family has had to endure some public attention that a matter of this nature will attract. However, as we have already said, this is a necessarily secondary consideration. The Tribunal's fundamental obligation is to protect the public interest.

Disciplinary history

As aforementioned, the parties have agreed that Dr Lal's disciplinary history is irrelevant to these proceeding and therefore we have given it no weight.

Costs

With regards to costs, Dr Lal seeks the following orders:
(a)Dr Lal pay the Board's reasonable costs of the proceedings up to 31 January 2017, fixed in the sum of $30,000; and
(b)the parties bear their own costs of these proceedings from 1 February 2017.
While the Board accepts that the parties should bear their own costs from 1 February 2017, the Board is seeking a payment of $55,000 towards its own costs in the proceedings.
The Tribunal may make any order about costs it considers appropriate for the proceedings, pursuant to s 195 of the National Law, and s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The Tribunal's approach and practice in relation to costs in vocational disciplinary proceedings costs was summarised in Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) at [51] as follows:
Although s 87(1) of the SAT Act contemplates that, generally, parties bear their own costs in proceedings before the Tribunal, s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party. The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Committee, will usually result in an order for costs being made in favour of the vocational regulatory body. The policy basis behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented'.
(Citations omitted)
The Tribunal agrees that the parties should bear their own costs in respect of the proceedings in the Tribunal following the handing down of the Original Decision.
However, the Tribunal also agrees with the parties that it is appropriate that Dr Lal should meet some of the Board's costs incurred up to and including the hearing which resulted in the Original Decision. As we have already mentioned, the Board is seeking payment of the sum of $55,000. The Tribunal had sought some clarification as to how that figure was made up and as we understand it, the Board incurred costs of $37,030.35 up to and including the filing of the Minute and $26,289.12 in costs of the proceedings from that date to the date of the hearing for the Original Decision. In those circumstances, we consider that the amount claimed, $55,000, is reasonable and the Tribunal will order that Dr Lal meets those costs.

Orders

1.The Tribunal will make orders in accordance with the minute of proposed orders signed on behalf of both parties and filed with the Tribunal on 4 October 2016.
2.Upon the finding of the Tribunal that the respondent has behaved in a way that constitutes professional misconduct and upon the surrender by the respondent of his registration as a medical practitioner with effect from 31 January 2017 the Tribunal orders, pursuant to sections 196(2) and 196(4)(a) of the Health Practitioner Regulation National Law (WA) Act 2010 that:
(a)the registration of the respondent to practise as a medical practitioner is cancelled;
(b)the respondent is disqualified from applying for registration as a medical practitioner for four years, commencing on 31 January 2017; and
(c)the respondent is to pay the applicant's costs of the proceedings up until the date of 31 January 2017 in the sum of $55,000.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, PRESIDENT (ACTING)
20 MARCH 2019