MEDICAL BOARD OF AUSTRALIA and NUTTALL
[2017] WASAT 58 (S)
•19 JUNE 2017
MEDICAL BOARD OF AUSTRALIA and NUTTALL [2017] WASAT 58 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 58 (S) | |
| HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 | |||
| Case No: | VR:98/2016 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) MS R PETRUCCI (MEMBER) DR K JEFFERIES (SENIOR SESSIONAL MEMBER) | 19/06/17 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Practitioner reprimanded Practitioner suspended Practitioner to pay costs | ||
| B | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF AUSTRALIA ALASTAIR MARCUS NUTTALL |
Catchwords: | National law Medical practitioner Professional misconduct Alternative therapy Penalty Suspension Costs |
Legislation: | Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 3, s 4, s 193(1)(a)(i), s 196(2) State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2) |
Case References: | A Solicitor v Council of the Law Society of NSW [2004] HCA l; (2004) 216 CLR 253 Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 Craig v Medical Board of South Australia (2001) 79 SASR 545 Craig v The Medical Board of South Australia [2001] SASC 169 Dawson v Law Society of New South Wales [1989] NSWCA 58 Dewan v Medical Board of Australia [2011] VCAT 1087 Law Society of New South Wales v Walsh [1997] NSWCA 185 Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 Legal Profession Complaints Committee and Leask [2010] WASAT 133 Legal Profession Complaints Committee and O'Halloran [2011] WASAT 95 Legal Profession Complaints Committee v Brickhill [2013] WASC 369 Legal Profession Complaints Committee v Detata [2012] WASCA 2014 Legal Profession Complaints Committee v Lashansky [2007] WASC 211 Legal Profession Complaints Committee v Masten [2011] WASC 71 Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 Legal Profession Complaints Committee v Segler [2014] WASC 159 Medical Board of Australia and Myers [2014] WASAT 137 Medical Board of Australia and Myers [2014] WASAT 137 (S) Medical Board of Australia and Nuttall [2017] WASAT 58 Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) Medical Board of Western Australia and Wolman [2011] WASAT 69 New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 New South Wales Bar Association v Evatt (1968) 117 CLR 177 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Quinn v Law Institute of Victoria [2007] VSCA 122 Re A Practitioner (1984) 36 SASR 590 Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 Stirling v Legal Services Commissioner [2013] VSCA 374 Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308 Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159 Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 |
Orders | 1. The practitioner is reprimanded.,2. The practitioner is suspended for 12 months commencing from one month after the date of this order.,3. The practitioner is to pay the Medical Board of Australia's costs in accordance with the State Administrative Tribunal Act 2004 (WA). |
Summary | Following its finding of professional misconduct in Medical Board of Australia and Nuttall [2017] WASAT 58, the Tribunal considered the appropriate penalty.,The practitioner's conduct was a very serious lapse of his professional duties. The situation could not have been more serious given that the life of a young child was at stake. The practitioner gave advice when he lacked the necessary expertise and experience. He abandoned his scientific training in favour of an alternative therapy when there was no evidence it was working or likely to work.,Although the practitioner fell below the standards which are to be expected of a medical practitioner, the Tribunal determined that he did not lack the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner. The findings related to an isolated and highly unusual consultation, the circumstances of which are unlikely to be faced by him again.,However, the Tribunal determined that the seriousness of the practitioner's conduct was such that, on balance, he should be suspended for a period of 12 months commencing from one month after the date of the Tribunal's order. The practitioner was also reprimanded and ordered to pay the Medical Board of Australia's costs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : MEDICAL BOARD OF AUSTRALIA and NUTTALL [2017] WASAT 58 (S) MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)
- MS R PETRUCCI (MEMBER)
DR K JEFFERIES (SENIOR SESSIONAL MEMBER)
- Applicant
AND
ALASTAIR MARCUS NUTTALL
Respondent
Catchwords:
National law Medical practitioner Professional misconduct Alternative therapy Penalty Suspension Costs
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 3, s 4, s 193(1)(a)(i), s 196(2)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)
Result:
Practitioner reprimanded
Practitioner suspended
Practitioner to pay costs
Summary of Tribunal's decision:
Following its finding of professional misconduct in Medical Board of Australia and Nuttall [2017] WASAT 58, the Tribunal considered the appropriate penalty.
The practitioner's conduct was a very serious lapse of his professional duties. The situation could not have been more serious given that the life of a young child was at stake. The practitioner gave advice when he lacked the necessary expertise and experience. He abandoned his scientific training in favour of an alternative therapy when there was no evidence it was working or likely to work.
Although the practitioner fell below the standards which are to be expected of a medical practitioner, the Tribunal determined that he did not lack the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner. The findings related to an isolated and highly unusual consultation, the circumstances of which are unlikely to be faced by him again.
However, the Tribunal determined that the seriousness of the practitioner's conduct was such that, on balance, he should be suspended for a period of 12 months commencing from one month after the date of the Tribunal's order. The practitioner was also reprimanded and ordered to pay the Medical Board of Australia's costs.
Category: B
Representation:
Counsel:
Applicant : Ms F Stanton
Respondent : Mr G Bourhill
Solicitors:
Applicant : MDS Legal
Respondent : Tottle Partners
Case(s) referred to in decision(s):
A Solicitor v Council of the Law Society of NSW [2004] HCA l; (2004) 216 CLR 253
Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438
Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54
Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62
Craig v Medical Board of South Australia (2001) 79 SASR 545
Craig v The Medical Board of South Australia [2001] SASC 169
Dawson v Law Society of New South Wales [1989] NSWCA 58
Dewan v Medical Board of Australia [2011] VCAT 1087
Law Society of New South Wales v Walsh [1997] NSWCA 185
Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)
Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S)
Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124
Legal Profession Complaints Committee and Leask [2010] WASAT 133
Legal Profession Complaints Committee and O'Halloran [2011] WASAT 95
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Detata [2012] WASCA 2014
Legal Profession Complaints Committee v Lashansky [2007] WASC 211
Legal Profession Complaints Committee v Masten [2011] WASC 71
Legal Profession Complaints Committee v O'Halloran [2013] WASC 430
Legal Profession Complaints Committee v Segler [2014] WASC 159
Medical Board of Australia and Myers [2014] WASAT 137
Medical Board of Australia and Myers [2014] WASAT 137 (S)
Medical Board of Australia and Nuttall [2017] WASAT 58
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Medical Board of Western Australia and Wolman [2011] WASAT 69
New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
New South Wales Bar Association v Evatt (1968) 117 CLR 177
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Quinn v Law Institute of Victoria [2007] VSCA 122
Re A Practitioner (1984) 36 SASR 590
Re Maraj (a Legal Practitioner) (1995) 15 WAR 12
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
Stirling v Legal Services Commissioner [2013] VSCA 374
Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308
Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Introduction
1 In Medical Board of Australia and Nuttall [2017] WASAT 58 (Nuttall), the Tribunal found that the medical practitioner behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law).
2 The case in Nuttall concerned a medical consultation on 1 September 2009 between the practitioner, a 10yearold patient and the patient's parents.
3 The patient had been diagnosed with a malignant tumour of her liver in early August 2009. Doctors at Princess Margaret Hospital for Children recommended chemotherapy. The patient's parents wished their daughter to be treated with natural therapies and were opposed to chemotherapy. On 1 September 2009, the patient and her mother left for South America. Following the patient's death on 12 November 2009, an investigation by the Coroner resulted in a referral to the Medical Board of Australia.
4 The practitioner gave advice on a comparison between a CT Scan and an ultrasound. His advice was that the patient's tumour had shrunk. He lacked the expertise and experience to give such advice. He endorsed the continuing use of natural therapies when he should have given advice that there was no scientific basis for the effectiveness of the natural therapies.
5 In consideration of the practitioner's level of experience and expertise, and in view of the advice he gave to the patient's parents and the actions he took during the consultation, as well as the advice he ought to have given to the Patient's parents and the actions he ought to have taken during the consultation, the Tribunal determined that the practitioner behaved in a way that constitutes professional misconduct.
The practitioner's conduct
6 In Nuttall, the Tribunal made the following findings in relation to the practitioner's conduct:
1. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that, at the time of the Consultation with the Patient, Dr Nuttall had not, at any time prior to the Consultation, treated any patient who was suffering from hepatoblastoma.
2. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that at the time of the Consultation, Dr Nuttall did not have sufficient expertise or experience and did not inform the Patient's parents, Mr and Mrs Stitt, that he did not have expertise or experience in the treatment of childhood hepatoblastoma to enable him to properly interpret the Ultrasound Scan or the alpha fetoprotein test result; and Dr Nuttall should not have given any advice to Mr and Mrs Stitt in relation to either of those tests.
3. During or alternatively, prior to the Consultation, Dr Alastair Marcus Nuttall was advised by Mr and Mrs Stitt that:
(a) the Patient had been diagnosed with hepatoblastoma;
(b) the Patient had undergone a needle biopsy;
(c) the Patient had been seen by oncology staff at Princess Margaret Hospital;
(d) the oncology staff at Princess Margaret Hospital had advised Mr and Mrs Stitt that the Patient should be treated with chemotherapy;
(e) a paediatric oncologist had informed Mr and Mrs Stitt that the chance of the Patient being cured as a result of undergoing the chemotherapy proposed by oncology staff at Princess Margaret Hospital was 30% to 50%;
(f) Mr and Mrs Stitt had been treating the Patient with natural therapies;
(g) Mr and Mrs Stitt wished to continue to treat the Patient with natural therapies and did not wish to have the Patient treated with chemotherapy;
(h) Mr and Mrs Stitt believed that as a result of action taken by the staff of Princess Margaret Hospital, there was a hearing listed to take place in a court the following day, as a result of which it was possible that the Patient could be treated with chemotherapy pursuant to an order of a court and without their consent;
(i) Mr and Mrs Stitt intended to have the Patient travel by plane to El Salvador the following day; and
(j) Mr and Mrs Stitt wished to have the Patient travel by plane to El Salvador for the purpose of avoiding the Patient undergoing chemotherapy pursuant to any order that might be made by a Court.
4. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that, during the Consultation Dr Nuttall
(a) knew that the Patient's alpha fetoprotein level had been measured to be 874,380 k/UL; and
(b) advised Mr and Mrs Stitt that comparing the 1 September alpha fetoprotein level with the level obtained previously, showed 'a significant slowdown in the progression of disease' and was 'very encouraging'.
5. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that, during the Consultation, Dr Nuttall:
(a) compared measurements of a tumour in the Patient's liver as shown on the Ultrasound Scan with measurements obtained by the CT Scan taken approximately one month before the Ultrasound Scan was taken; and
(b) advised Mr and Mrs Stitt that this comparison showed that the Patient's liver tumour was smaller than had been the case one month previously.
6. The AFP level and Ultrasound Scan did not provide any basis for a medical practitioner to conclude that the natural therapies provided to the Patient had:
(i) slowed the growth of the Patient's liver tumour; or
(ii) had any desirable effect on the progress of the Patient's disease;
7. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that Dr Nuttall should not have given the advice referred to in paragraphs 4b and 5b above and Dr Nuttall expressly or impliedly approved of Mr and Mrs Stitt providing alternative therapies to the Patient and/or expressly or impliedly recommended that they continue to administer natural therapies to the Patient.
8. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that Dr Nuttall ought to have contacted a member of the oncology staff at Princess Margaret Hospital to better inform himself about the Patient's clinical state and/or the likely efficacy of the proposed chemotherapy treatment before offering any medical advice to Mr and Mrs Stitt concerning their intention to have the Patient travel to El Salvador in order to avoid undergoing chemotherapy pursuant to a potential order of a court.
9. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that Dr Nuttall did not at any time:
(a) contact any member of the oncology staff at Princess Margaret Hospital to discuss the Patient's clinical condition or the treatment of the Patient proposed by Princess Margaret Hospital;
(b) contact a member of the oncology staff at Princess Margaret Hospital in order to ascertain whether the Patient's clinical state was such that she was fit to travel by plane to El Salvador before giving the 'fitness to fly' Certificate to Mr and Mrs Stitt; and
(c) by reason of the matters referred to above, Dr Nuttall should not have given the fitness to fly Certificate to Mr and Mrs Stitt.
10. The Tribunal finds that Dr Alastair Marcus Nuttall behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that Dr Nuttall gave Mr and Mrs Stitt the 'fitness to fly' Certificate, notwithstanding that during, or alternatively prior to the Consultation, Dr Nuttall was advised by Mr and Mrs Stitt of the matters referred to above.
The Committee's submissions as to penalty
7 In its submissions on penalty and costs filed 24 April 2017, the Committee sought the following orders:
1. a reprimand pursuant to section 196(2)(a) of the National Law;
2. cancellation of [Dr Nuttall's] registration pursuant to section 196(2)(e) of the National Law; and
3. disqualification of [Dr Nuttall] from applying for registration as a medical practitioner for a period of three years from the date of cancellation pursuant to section 196(4)(a) of the National Law.
8 In its submissions on penalty and costs filed on 8 May 2017, Dr Nuttall submitted that the following orders were appropriate:
(a) a reprimand pursuant to section 196(2)(a) of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law); and
(b) suspension of [Dr Nuttall's] registration for a period of 3 months from the date of suspension pursuant to section 196(2)(d) of the National Law.
Legal framework and principles
9 Section 3 of the National Law sets out the objectives and guiding principles. Relevantly they are s 3(l)(a) and s 3(2)(a):
The object of this Law is to establish a national registration and accreditation scheme for
the regulation of health practitioners; [and]
The objectives of the national registration and accreditation scheme are
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[.]
An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in section 3.
11 Section 196(2) of the National Law provides that if the Tribunal finds that a practitioner has behaved in a way that constitutes professional misconduct, it 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;
…
(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.
…
(4) 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 -
(a) disqualify the person from applying for registration as a registered health practitioner for a specified period[.]
12 The Tribunal repeats what it stated in Medical Board of Australia and Myers [2014] WASAT 137 (S). The jurisdiction of the Tribunal is protective rather than punitive, and such protection runs to both the public and the profession (Craig v Medical Board of South Australia (2001) 79 SASR 545 at [41] (Craig); Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 at 25; Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [19]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (Foreman) at 440G441A-B; Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 at [24]-[26]; New South Wales Bar Association v Hamman [1999] NSWCA 404 (Hamman) at [21] and [77]).
13 The appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the unprofessional acts (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) (A Legal Practitioner (S)) at [23]; Legal Profession Complaints Committee v Segler [2014] WASC 159 at [7]; A Solicitor v Council of the Law Society of NSW [2004] HCA l; (2004) 216 CLR 253 (A Solicitor [2004] NSW) at [15]; Love at [16]).
14 It is the practitioner's conduct that attracts any sanction (A Legal Practitioner (S) at [24]; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 267-268 and 271-272; A Solicitor [2004] NSW).
15 As the Tribunal explained in A Legal Practitioner (S) at [24]:
[I]n determining the appropriate penalty, care needs to be taken that the penalty reflects the matters with which the practitioner is charged and not other conduct including the defence of the action by the practitioner which is ultimately held to be unsuccessful: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) at 267-268 and 271-272[.]
16 Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Quinn v Law Institute of Victoria[2007] VSCA 122 at [31]).
17 The dominant purpose of the disciplinary regulation of the legal profession is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations (see Legal Profession Complaints Committee v Detata [2012] WASCA 2014 at [47]; Legal Profession ComplaintsCommittee v Masten [2011] WASC 71 at [29]; and Legal Profession ComplaintsCommittee and Leask [2010] WASAT 133 at[54]).
18 The question of whether a practitioner acknowledges and understands the nature of his error and has insight into the seriousness of the error is relevant to the question of the penalty required for the protection of the public (Dewan v Medical Board of Australia [2011] VCAT 1087 at [254] and [257]; Healthcare Complaints Commission (HCC) v Sunjic [2008] NSW NMT 12; Medical Board of Western Australia and Wolman [2011] WASAT 69 at [24]; Legal Profession Complaints Committee and O'Halloran [2011] WASAT 95; Dawson v Law Society of New South Wales [1989] NSWCA 58; and Medical Board of Australia and Myers [2014] WASAT 137 at [12].
19 There are circumstances in which a 'global' approach to sanction, rather than the imposition of separate sanction for each unprofessional act, 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 (A Legal Practitioner (S) at [5]; Stirling v Legal Services Commissioner [2013] VSCA 374 at [72][75]).
20 The Tribunal finds that because all of the conduct occurred within one 45 minute consultation and the facts are intertwined it is appropriate to impose a global penalty.
Twelve matters for consideration
21 In determining an appropriate sanction, twelve matters may require consideration. Those matters are interrelated and are not mutually exclusive. The list of matters is not exhaustive. The twelve matters are:
1) Any need to protect the public against further misconduct by the practitioner (Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) (Amsden (S)) at [8]; Foreman at 440C; Hamman at [77]).
2) The need to protect the public through general deterrence of other practitioners from similar conduct (Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308 (Johnson) at [103]; Hamman at [77]).
3) The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession (Amsden (S)) at [8]; Foreman at 444F; and Hamman at [77] and at [79]), 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 (Craig v The Medical Board of South Australia [2001] SASC 169 at [64]; Johnson at [103]).
4) In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner (Johnson at [109]; Foreman at 445B 445G).
5) Whether the practitioner has breached any:
a) Act;
b) Regulations;
c) Guidelines or Code of Conduct, issued by the relevant professional body; and
d) whether the practitioner has done so knowingly.
6) Whether the practitioner's conduct demonstrated incompetence, and if so, to what level.
7) Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foreman at 442E - 442G; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 (A Solicitor [2002] NSW) at [80]; Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 at 62 and 63).
8) The practitioner's disciplinary history (Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 at [93]);
9) Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a 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 (Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA (Walsh); Legal Profession Complaints Committee v Lashansky [2007] WASC 211 at [31] - [52] and (second) at [35]; Amsden (S) at [8]; Foreman at 444E; Love at [9]).
10) The desirability of making available to the public any special skills possessed by the practitioner.
11) The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice (Love at [59]); Paridis v Settlement Agents Supervisory Board[2007] WASCA 97; (2007) 33 WAR 361 (Paridis) at [30(5)]).
12) The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness (A Legal Practitioner (S) at [25]). In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive (Walsh).
Cancellation of registration
22 The jurisdiction of the Tribunal to cancel a practitioner's registration is exercised not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the medical profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].
23 Where an order for cancellation of a practitioner's registration is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a medical practitioner: A Solicitor [2004] NSW at [15].
24 A practitioner is not a fit and proper person to be a registered practitioner and should be removed from the register where the unprofessional conduct is so serious that the practitioner is permanently or indefinitely unfit to practise (Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159 at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 at [38]; Love at [17]-[18]; A Legal Practitioner (S) at [21]-[25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19]-[20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26]-[28]); Love at [17][18]).
25 The practical effect of a cancellation is that the onus is on the practitioner to establish that he is a fit and proper person should he seek to resume practice.
Suspension
26 Suspension is a less serious result and differs from cancellation of a practitioner's registration because suspension is for a specified limited period.
27 The proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he/she lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner (A Legal Practitioner (S) at [26]; Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice (A Legal Practitioner (S) at [27]).
28 The practical effect of a suspension is that the practitioner can resume practice without the need to establish that he is a fit and proper person.
The seriousness of Dr Nuttall's conduct
29 Dr Nuttall's conduct was a very serious lapse of his professional duties. As the Tribunal explained in Nuttall the situation could not have been more serious given that the life of a young child was at stake. Dr Nuttall gave advice when he lacked the necessary expertise and experience.
30 As the Victorian Civil and Administrative Tribunal said in Traill v Medical Practitioners Board (Occupational and Business Regulation) [2006] VCAT 1920, the process of scientific verification and clinical validation of theories is the hallmark of modern evidencebased medicine. Dr Nuttall abandoned his scientific training in favour of an alternative therapy when there was no evidence it was working or likely to work.
The 12 factors
Factor 1 Is there a need to protect the public against further misconduct by Dr Nuttall?
31 In general, when a practitioner has engaged in repeated acts of misconduct this will establish a need to protect the public against further misconduct. However, when it is a single act the practitioner's insight and remorse will often provide the best guide to the need to further protect the public. That in turn needs to be factored against the seriousness of the conduct.
32 The seriousness of Dr Nuttall's lapse of professional judgment and his abandonment of scientific principles must raise a question about his future judgment. However, in this case the length of time since the misconduct and the fact that there have been no further breaches suggests Dr Nuttall is unlikely to repeat this conduct.
33 The Board submitted that:
15. Dr Nuttall has expressed some insight into the seriousness of his misconduct, the details of which are dealt with at [Board submissions paragraphs 33 35 below]. Ordinarily, a demonstration of insight will provide reassurance that future conduct will be acceptable; Dawson v Law Society of New South Wales [1989] NSWCA 58 pp6-7; Healthcare Complaints Commission (HCC) v Sunjic [2008] NSW NMT 12 at [55]. However, consideration of Dr Nuttall's evidence in its entirety demonstrates that limited comfort can be derived from such insight as Dr Nuttall has shown.
16. Dr Nuttall had at least some appreciation of the limits on the accuracy of a comparison of measurements made in relation to the CT scan and the subsequent ultrasound scan - he made a clinical note that 'this may reflect the different modality used to assess the anatomy of this cancer'; Exhibit A page 14. Despite that knowledge, Dr Nuttall agreed during cross-examination that he was 'excited' by the comparison of the measurements, and he refused to concede that an excited demeanour was inappropriate. When asked;
'If the scans simply can't be compared, why would you be excited?'
Dr Nuttall gave the following extraordinary and incomprehensible response;
'Why was I excited? We're talking about a 10 year old girl. We're not talking about the methodology of this working. [If] she had been having chemotherapy I would have been delighted. It didn't matter … I don't care about the treatment. I'm interested in how that person is going with respect to whatever they chose and whatever their family has chosen. The outcome, you know does it have to be dancing naked at moonlight? No. I'm not interested in that. I just want to see somebody get better.'; T72 at point 8 .
17. Dr Nuttall agreed during cross-examination that the two scans gave no indication of the progress of the metastatic nodules that had been identified in the patient's lungs, but even that fact did not elicit admission that his excited demeanour was wholly inappropriate and misleading to the Stitts. This was a medical practitioner engaged in a medical consultation with a 10-year-old child who had a month-old diagnosis of hepatoblastoma, who knew that her parents were refusing to allow what he knew to be potentially life-saving treatment. Dr Nuttall's continued inability to fully appreciate the gravity of the circumstances of that consultation and to understand the need for very different behaviour and advice on his part are concerning deficiencies of insight as they tend to show that Dr Nuttall may engage in further such irrational, inappropriate conduct in circumstances in which patients he sees have, or may have, cancer, including at the skin cancer clinic where he presently works.
18. Dr Nuttall also refused at hearing to accept that wrapping the patient in mud and providing her with fruit and vegetables could not possibly cure her Stage 4 hepatoblastoma, saying instead that he did not know that these therapies could not cure the cancer; Nuttall at [123]. The same flippant response has been maintained throughout these proceedings – it appears at paragraph 21(d) of the Response filed on 5 August 2016 and paragraph 21(e) of the Amended Response filed on 21 October 2016. In light of Dr Nuttall's continuing inability to understand the need to give clear and accurate advice about the inefficacy of the therapy, the Board is concerned that Dr Nuttall continues to pose a risk to patients with whom he may discuss non-conventional treatments for cancer.
19. Dr Nuttall's conduct in volunteering the fitness to fly certificate (Tribunal's decision at [83] and [85]) when he knew that PMH was considering the ultimate step of seeking a court order for treatment (Tribunal's decision at [123]) is of grave concern to the Board as it demonstrates a disregard for the protective jurisdiction of the Supreme Court of Western Australia in respect of a minor whose life was at stake. There can be no satisfactory explanation for such conduct. Dr Nuttall's failure to express an acceptance of and respect for the role of the hospital and the Court in the protection of the child leaves the Board concerned that Dr Nuttall is prone to further such misconduct.
34 Dr Nuttall submitted:
15. It is clear from the following admissions and comments made by [Dr Nuttall] during the course of his evidence and in his witness statement that he understands and fully appreciates the gravity of the circumstances of that consultation, and that he understands the need for different behaviour and advice:
(a) 'This has been a matter which has impacted on both my professional and personal life, and I have no difficulty conceding that there are certainly things that I would do differently if the situation ever presented itself again': paragraph 41 of [Dr Nuttall's] witness statement dated 20 December 2016 … ;
(b) '… should I have told them [Mr and Mrs Stitt] that I've never had that experience [in treating hepatoblastoma]? Of course I should have told them. Of course': T 45.7.
(c) 'Having watched that video [of a consultation between Mr and Mrs Stitt and an oncologist in El Salvador], it has become clear to me that Mr Stitt … placed great significance on the consultation in September 2009 and our discussion about Tamar's AFP level. This is not something that I appreciated at the time': paragraph 43 of [Dr Nuttall's] Statement;
(d) when asked during cross examination whether he should have given any advice about the AFP levels, [Dr Nuttall] said 'No. I shouldn't': T 57.2;
(e) when asked during cross examination whether he should have told Mr and Mrs Stitt that he wasn't qualified to interpret serial AFP measurements in childhood hepatoblastoma, [Dr Nuttall] answered 'Absolutely': T 57.2;
(f) '… I should have been much clearer about the relative changes to the size of the hepatoblastoma … I should not have told Mr and Mrs Stitt that the tumour had not grown': paragraph 46 of [Dr Nuttall's] Statement;
(g) when it was put to him in cross examination that he shouldn't have proffered any advice he wasn't qualified to give, [Dr Nuttall] agreed: T 57.3;
(h) '… if I had known then what I know now, I would have been very careful about how I phrased the whole thing … frankly, there are many ways that I would have approached the situation differently': T 57.4;
(i) [Dr Nuttall] conceded that 'there was a need at that time to express certain things more coherently': T 73.9.
(j) 'There are certainly things I would have done differently …': T 75.6;
(k) 'When I looked at what happened I certainly would have changed the way I had interacted with them, … I would have really tried to put across that there were only certain things that they could have done, in addition to that which they were doing. The chemotherapy should have been put out as do you have anything approaching 50 per cent?': T 76.6;
(l) in cross examination, [Dr Nuttall] accepted, with the benefit of hindsight, Professor Emery's statement that he should have worked hard to try to discourage the parents in taking the child to El Salvador: T 76.8.
16. In assessing [Dr Nuttall's] ability to understand the need to give clear and accurate advice about the inefficacy of the natural therapies used by Mr and Mrs Stitt, and in considering whether [Dr Nuttall] would continue to pose a risk to patients with whom he may discuss nonconventional treatment for cancer, it is submitted that [Dr Nuttall's] evidence referred to in paragraph 18 of the Board's Submissions, and in paragraph 123 of the Tribunal's decision, needs to be considered together with the following comments and admissions made by [Dr Nuttall] during the course of his evidence:
(a) 'I agree with you. I don't think that that [therapy administered by Mr and Mrs Stitt] would, by itself, in any way, have been a way to cure that cancer': T 75.3;
(b) 'Do I believe that the impossible is the norm? No. And should I have made that point? Yes': T 75.7;
(c) when asked about whether he is expected to take a scientific approach and to promote evidence-based care, [Dr Nuttall] answered 'Yes…I think you're absolutely right. Evidence based care is very important. It's what a fundamental aspect of what we should be approaching. Yes': T 75.10 76.1;
(d) '… looking back at it, I would certainly have talked to them, aside from [Tamar], and said, look, there has to be something more, and that from an evidence based practice we don't have anything to suggest that this [natural therapy] is going to work by itself': T 76.4;
(e) when asked whether he agreed that it was important that he said to the parents there was no evidence that the therapy they were giving to the child will cure her cancer, he answered 'Yes': T 76.5.
17. In paragraph 19 of the Board's Submissions, the Board refers to 'Dr Nuttall's failure to express an acceptance of and respect for the role of the hospital and the Court in the protection of the child'. With respect, the Board's counsel did not put this issue to [Dr Nuttall] during the course of the hearing.
18. [Dr Nuttall] accepted that he should have worked hard to try to discourage the parents taking the child to El Salvador: T 76.8.
19. While the Tribunal found that [Dr Nuttall] should not have given the certificate of fitness to fly knowing this would mean the patient potentially would leave the country to avoid court proceedings, the Tribunal did not find that the provision of the certificate signified Dr Nuttall's approval of the Stitts' decision to take the patient to El Salvador. Indeed, the Tribunal found it was probably unlikely that the Stitts would have changed their minds about flying to El Salvador: Tribunal's decision at [117].
20. It is clear from the above, that when [Dr Nuttall's] evidence is viewed as a whole, and all of his comments are viewed together, his insight into the seriousness of the matter and his failings is clear.
21. The situation in which [Dr Nuttall] found himself on 1 September 2009 was unusual, to say the least. The patient had a hepatoblastoma. [Dr Nuttall] had never treated a patient with hepatoblastoma before. The patient's parents had been told that without chemotherapy in combination with other conventional therapies, the patient would not survive: Exhibit A, page 10. Despite this advice, the parents wished to continue with natural therapies to treat the patient and had decided to leave the country to ensure they could continue these natural therapies.
22. The circumstances of this case are unlikely to occur often, if ever again, and the findings of misconduct against [Dr Nuttall] are discrete. [Dr Nuttall] has given evidence to the Tribunal that he would do things differently if (however unlikely) he was ever faced with this situation again.
23. For the reasons outlined above, the Tribunal can be satisfied that [Dr Nuttall] would not engage in this kind of conduct again.
35 The Tribunal notes the references to Dr Nuttall's evidence identified in his submissions. However, interspersed with that evidence was the evidence identified in the Board's submissions which cause the Tribunal concern. The evidence discloses that Dr Nuttall has still not fully appreciated the gravity of his conduct. However, given that it was a single, albeit serious, instance of misconduct and that the conduct has not occurred since, on balance, the Tribunal has concluded that Dr Nuttall poses a low risk of future misconduct.
Factor 2 Is there a need to protect the public through general deterrence of other practitioners?
36 The Board submitted that:
20. Judicial notice can be taken of the fact that the natural fear associated with a cancer diagnosis and a recommendation of chemotherapy makes patients vulnerable to the suggestion that nonconventional therapies, which may be a less frightening prospect than chemotherapy, might be efficacious.
21. Parents of children diagnosed with cancer can be expected to be both desperate for efficacious treatment for their child and frightened of the effects upon their child of chemotherapy. As Dr Alessandri put it in her letter to Mr Stitt;
'I understand that this type of therapy is extremely daunting for parents and their children.' Exhibit A page 12.
22. Parents of children diagnosed with cancer may be expected to be particularly vulnerable to the suggestion that a more benign treatment may save their child.
23. Patients put trust in the scientific knowledge of medical practitioners, and consequently they are ready to accept even tacit suggestion from medical practitioners that non-conventional treatment may be efficacious.
24. A general medical practitioner who gains a reputation for offering the hope that non-conventional therapy will be efficacious is likely to gain the custom of a significant number of patients with diagnosed cancer. On his own evidence, that was the case for Dr Nuttall, who stated that at the time of relevant events he had a cohort of patients that included 15% 20% of patients at any point in time who had been diagnosed with cancer, to whom he provided 'IV therapies' and ''hyperbaric oxygen' as 'supportive therapies'; statement of Dr Nuttall paras 15, 16 and 17. There is therefore an incentive for general medical practitioners with an interest in nonconventional therapy for the treatment of cancer to respond to the demand for medical advice as to such therapy.
25. When such practitioners practice in a manner which causes patients to prefer non-conventional therapy to conventional therapy, whether by provision or promotion of non-conventional therapy or by failing to give proper advice about the efficacy of conventional therapy, there is the potential for patients to be dissuaded from accessing potentially lifesaving, evidence-based medical treatment. The penalty in such matters must be sufficient to achieve adequate general deterrence in order to serve the important public interest in avoiding such outcomes.
26. In the present case, a penalty of sufficient severity is required in order to achieve general deterrence in relation to conduct of the following kind:
26.1 Providing medical advice or services to patients in respect of diagnosed cancer when the practitioner does not have adequate expertise properly to do so;
26.2 Interpreting and giving advice to patients in relation to test results relating to diagnosed cancer when the practitioner does not have adequate expertise to do so;
26.3 Expressly or impliedly approving of the use of non-scientific therapies that could not possibly have any desirable effect on the course of a patient's cancer in place of conventional medical treatment;
26.4 Offering advice in relation to a patient's diagnosed cancer without consulting with the patient's treating oncologist to obtain a proper history in relation to the patient's disease; and
26.5 Failing to respect the operation of the law of the State in relation to the protection of the interests of children diagnosed with cancer by encouraging or condoning the circumvention of such laws.
24. [Dr Nuttall] agrees with the Board's submission that the penalty in this case must be sufficient to achieve adequate general deterrence of other practitioners from similar conduct.
25. [Dr Nuttall] submits that a period of suspension will provide adequate deterrence.
38 The Tribunal broadly accepts the Board's submissions.
39 Cancer patients are particularly vulnerable to alternative therapies given the nature of many cancer treatments and their side effects. Quite understandably, parents of young children will look for treatment that is less severe or invasive. It is therefore particularly important that other practitioners must be deterred from supporting unproved alternative therapies.
Factor 3 Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?
40 The Board submitted:
27. The penalty imposed must be of sufficient severity to reassure the public that transgressions such as those the subject of findings in this matter will be denounced in order to uphold the standard of medical practice in the State.
41 Dr Nuttall submitted
26. Again, [Dr Nuttall] agrees with the Board's submission at paragraph 27 of the Board's Submissions, but says that a period of suspension will be of sufficient severity to reassure the public that transgressions of the kind the subject of the Tribunal's findings in this matter will be denounced.
42 Registration as a medical practitioner is based upon a scientific evidence based approach. Dr Nuttall failed to uphold the high standards of medical practitioners in Australia. The public must be reassured that conduct such as Dr Nuttall's will be dealt with appropriately in order to maintain these standards.
Factor 4 Dishonesty
43 There are no findings of dishonesty in relation the matter.
Factor 5 Breach of an Act, Regulations, Guidelines or Code of Conduct
44 The allegations and findings in the matter do not reference breach of any Act, Regulation, Guideline or Code of Conduct.
Factor 6 Incompetence
45 The Board submitted that:
30. All of the conduct the subject of the findings of professional misconduct may be regarded as demonstrating incompetence in the practice of medicine.
31. Incompetence was inherent in Dr Nuttall seeking to interpret the alpha feto-protein (AFP) result when he had insufficient expertise to do so. During cross-examination, Dr Nuttall said that it was not likely that he knew at the relevant time that a high AFP level was an indication that chemotherapy was likely to be efficacious; T56 at point 8. Dr Nuttall also conceded that he had no knowledge at the relevant time as to how AFP behaves in children with heptoblastoma who do not receive chemotherapy, nor did he know how AFP changes when children receive efficacious treatment for hepatoblastoma; T56 at point 10 and T57 at point 1. Nevertheless, Dr Nuttall continued to believe at the time of the hearing, or purported to believe, that he could interpret serial AFP levels in a child with hepatoblastoma. He ought to have realised and conceded that he was not capable of properly interpreting the AFP test results.
46 Dr Nuttall submitted:
29. In paragraph 31 of the Board's submissions, the Board asserts that [Dr Nuttall] 'continued to believe at the time of the hearing, or purported to believe, that he could interpret serial AFP levels in a child with helpatoblastoma' and that he ought to have conceded he was not capable of properly interpreting the AFP test results.
30. The Board cites no reference to the transcript in support of this submission.
31. During the course of his evidence, [Dr Nuttall] conceded that:
(a) it wasn't likely that he knew at the time of the consultation that a high AFP was an indicator of the likely efficacy of chemotherapy: T 56.8;
(b) he didn't know how AFP behaves in children with hepatoblastoma if they don't receive chemotherapy: T 56.10;
(c) he didn't know at the time of the consultation (but does now know) how AFP changes when children receive efficacious treatment for hepatoblastoma: T 57.1;
(d) he should not have given any advice about the AFP levels: T 57.2;
(e) he should have told Mr and Mrs Stitt that he wasn't qualified to interpret serial AFP measurements in childhood hepatoblastoma: T 57.3.
32. In light of the evidence referred to above, it is submitted that the position is, in fact, the opposite of what is submitted by the Board. [Dr Nuttall] did concede that he was not capable of properly interpreting the AFP test results.
47 Dr Nuttall's conduct demonstrates that he was incompetent in that he did not recognise his lack of experience or expertise at the time. The Tribunal is generally satisfied that he now realises that he lacked the necessary experience or expertise.
Factor 7 Was the incident isolated?
48 There is no evidence of an historical propensity for similar misconduct.
49 Dr Nuttall submitted:
33. The findings made by the Tribunal against [Dr Nuttall] occurred during one 45 minute consultation with the patient and her parents. It was the first, and only time, the patient consulted him.
34. It was an isolated incident and the Board correctly notes there is no evidence of a historical propensity for similar conduct.
50 The incident was isolated. The misconduct occurred on 1 September 2009. Since then Dr Nuttall has not been the subject of any similar complaints. This suggests that Dr Nuttall has learnt from his experience.
Factor 8 Dr Nuttall's disciplinary history
51 Dr Nuttall does not have any prior or subsequent disciplinary history.
Factor 9 Whether or not Dr Nuttall understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by Dr Nuttall
52 The Board submitted that:
34. Dr Nuttall stated that watching the video which showed Mr Stitt conveying Dr Nuttall's advice to a practitioner in El Salvador made him appreciate the significance that Mr Stitt had placed on his medical advice and made him understand that Mr and Mrs Stitt 'were at a point where they were desperate to hear some positive information about their daughter'; Dr Nuttall's statement paras 43 and 44. Whilst this is to his credit, the Board is concerned that a practitioner of Dr Nuttall's seniority and experience, especially one with an interest in cancer who was being consulted by a significant number of cancer patients at the relevant time, did not appreciate at the outset that the patient's parents were likely to place great significance on the medical advice that he gave.
35. Dr Nuttall has stated at paras 45 - 47 of his statement that:
35.1. he should have been 'much clearer about the relative changes to the size of the hepatoblastoma' - (it must be noted that it is impossible that any diminution in size had actually occurred);
35.2. he should not have told Mr and Mrs Stitt that the tumour had 'not grown'; and
35.3. he should have 'stressed to Mr and Mrs Stitt that none of the information which [he] had about [the patient] provided any reliable basis to conclude that the alternative therapies they were providing to [the patient] had slowed the growth of the tumour.'
36. As noted at 18 above, the last of those statements (set out at para 47 of Dr Nuttall's statement) is at odds with the evidence that Dr Nuttall gave during the hearing as to whether the therapies could possibly work. Dr Nuttall's evidence as recounted in the Tribunal's decision at [123] was particularly telling as to the degree of insight actually possessed by Dr Nuttall in that regard. In respect of this issue it is open to the Tribunal to find that Dr Nuttall does not have the insight claimed by para 47 of his statement.
53 Dr Nuttall submitted:
36. In paragraph 36 of the Board's Submissions, the Board's submits it is open to the Tribunal to find that [Dr Nuttall] does not have the insight claimed in paragraph 47 of [Dr Nuttall's] Statement.
37. For the reasons articulated above in paragraphs 15, 16, 18, 20 23, 31 and 32 it is open to the Tribunal to find that despite the comment by [Dr Nuttall] highlighted in paragraph 123 of the Tribunal's decision, [Dr Nuttall] does understand the error of his ways, has shown remorse and has shown insight.
54 The relevant passages from Dr Nuttall's evidence have been identified in relation to Factor 1 and Factor 9. The discussion in relation to Factor 1 is relevant to Dr Nuttall's remorse. The Tribunal is concerned about the manner in which Dr Nuttall gave his evidence. He struck the Tribunal as arrogant and as someone who thought he was cleverer than anyone else in the room. The Tribunal does have reservations about Dr Nuttall's remorse.
55 The Tribunal regards the fact that there had been no further misconduct as a more significant factor than Dr Nuttall's remorse.
Factor 10 Are there any special skills possessed of Dr Nuttall?
56 Dr Nutall does not possess any special skills.
Factor 11 Dr Nuttall's personal circumstances
38. Dr Nuttall graduated from the University of Aberdeen in 1986 with a Bachelor of Medicine and a Bachelor of Surgery; Dr Nuttall's statement para 6. Dr Nuttall has been practising medicine in Australia since 1987; Dr Nuttall's statement para 8.
39. Dr Nuttall is currently working in a skin cancer clinic; Dr Nuttall's statement para 4.
57 Dr Nuttall's personal circumstances do not impact on his penalty.
Factor 12 Are there any other matters related to Dr Nuttall's fitness to practise?
58 There are no other matters that are relevant.
Appropriate penalty
59 Having weighed the seriousness of Dr Nuttall's conduct and the 12 factors listed above, the Tribunal has determined that a period of suspension is appropriate rather than a cancellation of Dr Nuttall's registration.
60 The Tribunal finds that while Dr Nuttall has fallen below the standards which are to be expected of a medical practitioner, he does not lack the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner.
61 The Tribunal accepts that the findings made against Dr Nuttall relate to an isolated and highly unusual consultation, the circumstances of which are unlikely to be faced by him again.
62 However, the seriousness of Dr Nuttall's conduct is such that, on balance, he should be suspended for a period of 12 months commencing from one month after the date of this order. He should also be reprimanded.
Costs
63 Section 87(1) and s 87(2) of the State Administrative Tribunal Act2004 (WA) provide:
Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
64 In Western Australian Planning Commission v Questdale Holdings PtyLtd [2016] WASCA 32, Murphy JA (Martin CJ and Corboy J agreeing) stated:
46 The effect of s 87(1) of the SAT Act is, relevantly, that each party in proceedings before the Tribunal is to bear its own costs, unless the Tribunal otherwise orders.
…
51 Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.
65 In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman (S)) at [30], the Tribunal stated:
Section 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The 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. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case.
66 Although the decision in Roberman (S) does not limit the discretion of the Tribunal in awarding costs, the public obligations of the Board to prosecute practitioners who breach the National Law is an important factor to be considered.
67 Dr Nuttall did not dispute that the Board was entitled to its costs. He does, however, oppose an order that those costs be assessed using the scale provided for as if the proceedings had been in the Supreme Court of Western Australia.
68 The Board's Submissions assert that its costs should be assessed on the Supreme Court scale because of the 'complexity and importance' of the matter.
69 The Tribunal does not accept that there was any unusual complexity or importance. The costs should be assessed in accordance with the relevant Legal Profession (State Administrative Tribunal) Determination.
Orders
1. The practitioner is reprimanded.
2. The practitioner is suspended for 12 months commencing from one month after the date of this order.
3. The practitioner is to pay the Medical Board of Australia's costs in accordance with the State Administrative Tribunal Act 2004 (WA).
I certify that this and the preceding [69] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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