MEDICAL BOARD OF AUSTRALIA and PEPULANI - [2021] WASAT 128

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION:   MEDICAL BOARD OF AUSTRALIA and PEPULANI [2021] WASAT 128
MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
DR E MARILLIER, MEMBER

HEARD:   ON THE PAPERS
DELIVERED          :   23 SEPTEMBER 2021
FILE NO/S:   VR 169 of 2019
BETWEEN:   MEDICAL BOARD OF AUSTRALIA
Applicant
AND
CHRIS CHIPAZA PEPULANI
Respondent

Catchwords:

Medical practitioner Disciplinary proceedings Admitted professional misconduct Practising in breach of conditions of registration Practising without professional indemnity insurance Dishonesty in communications with AHPRA Board Determination of appropriate penalty Allowance to be given for period practitioner's registration already suspended through immediate action

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010, s 5, s 129(1) s 156, s 156(1)(a), s 169, s 193(a)(i), s 196, s 196(2), s 196(1)(b)
Legal Profession Act 2008 (WA)
Sentencing Act 1995 (WA), s 87(1)(d)
State Administrative Tribunal Act 2004 (WA), s 60, s 73
Teachers Registration Act 2012 (WA), s 84

Result:

The practitioner reprimanded
The practitioner's registration suspended for 12 months
The practitioner's registration subject to conditions
The practitioner to pay Board's costs

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Australian Government Solicitor - Perth
Respondent	:	Gardner Legal & Regulatory Pty Ltd

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

Chen v Health Care Complaints Commission [2017] NSWCA 186

Dental Board of Australia v Fun [2019] VCAT 287
Health Care Commission v Edwards [2014] NSWCATOD 90
Health Care complaints Commission v Townsend [2014] NSWCATOD 65

Khosa v Legal Profession Complaints Committee [2017] WASCA 192

Medical Board of Australia v Ainsworth [2019] VCAT 734

Medical Board of Western Australian and A Practitioner [2009] WASAT 39
Medical Board of Australia v Duck [2017] WASAT 28

Medical Board of Australia v Konidaris [2019] SACAT 52
Medical Board of Australia v Kyaw [2016] QCAT 34

Medical Board of Australia and Nuttall [2017] WASAT 58

Medical Board of Australia v Putha [2014] QCAT 159

Medical Board of Australia and Singh [2017] WASAT 33(S)
Medical Board of Australia and Waldron [2017] QCAT 443

Medical Board of Australia v Win [2015] VCAT 1289

New South Wales Civil and Administrative Tribunal stated in Health Care Complaints Commission v Townsend [2014] NSWCATOD 65

Nursing and Midwifery Board of Australia v INZ [2018] VCAT 99
Nursing and Midwifery Board of Australia v Mura [2019] VCAT 393
Pharmacy Board of Australia and Nyoni [2018] WASAT 134

Psychology Board of Australia and Rigley [2018] VACAT 1400

Psychology Board of Australia v Sheppard [2018] VCAT 1279

Singh v Medical Board of Australia [2019] WASCA 51
Teacher Registration Board of Western Australia and Clarke [2021] WASAT 52

REASONS FOR DECISION OF THE TRIBUNAL:

Background

Dr Chris Chipaza Pepulani and the Applicant, the Medical Board of Australia, agreed, and we found, that there was proper cause for disciplinary action against Dr Pepulani under s 193(a)(i) of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (National Law). They agreed the facts upon which the Tribunal could characterise Dr Pepulani's conduct as professional misconduct. On 21 September 2021 we made orders in which we found Dr Pepulani had engaged in professional misconduct which reflected the agreed facts. The agreed facts are contained in the schedule annexed to the orders of 21 September 2021 and are Annexure A to these reasons. While we will have more to say about the facts later in these reasons, in summary, Dr Pepulani's conduct involved:
a.practising as a general practitioner without supervision in breach of conditions which had been imposed on his registration requiring him to practice under supervision; and
b.practising as a medical practitioner without having professional indemnity insurance in place in breach of s 129(1) of the National Law; and
c.knowingly providing false information to the Australian Health Practitioner Regulation Authority (AHPRA) and the Board.

Issue

The issue which the Tribunal has been required to determine in these proceedings is the appropriate penalty to be imposed on Dr Pepulani for his professional misconduct in all of the circumstances.
Dr Pepulani's registration as a practitioner has been suspended since 1 February 2019 when the Board took immediate action under s 156(1)(a) of the National Law. We have had to consider what relevance that suspension has to the penalty to be imposed and how, and to what extent, if at all, we should take it into account.

Penalty determined on papers

Where it thinks it is appropriate to do so, the Tribunal has power to conduct proceedings in whole or in part on the basis of documents under s 60 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). In this case, the parties consented to the issue of penalty and costs being determined on the papers without a hearing. We initially agreed that it was appropriate to proceed in that way in this case. We then had some concerns that the Board's submission took issue with Dr Pepulani's contention that he was remorseful for the misconduct and we requested that the parties consider how we should proceed in light of that dispute. The parties filed additional submissions essentially submitting that we could resolve that issue on the basis of the documents filed in the proceedings. Neither party wished to call or adduce any oral evidence in relation to that matter. The parties also advised us that they had reached agreement as to costs and requested the costs order be made by consent. In the circumstances, we determined that it was appropriate to deal with the issue of penalty on the papers.
The documents to which we have had regard in reaching our decision are:
1.the orders made on 21 September 2021 and the agreed facts concerning Dr Pepulani's conduct;
2.the Applicant's submissions on penalty and costs dated 27 November 2020;
3.the Respondent's submissions on sanction dated 23 February 2021 but filed on 4 March 2021;[1]
[1] The respondent originally filed submissions on penalty and costs on 23 February 2021 but subsequently asked for them to be uplifted because they referred to without prejudice communications between the parties. The respondent subsequently filed a revised submission on penalty and costs on 4 March 2021 although they retained the date of the document as 23 February 2021. It is only to the document filed on 4 March 2021 to which we have had regard.
4.the Applicant's reply submissions on penalty and costs dated 11 March 2021;
5.the Applicant's further submissions on penalty and costs dated 28 July 2021;
6.the Respondent's further submissions dated 11 August 2021;
7.the Affidavit of Dr Chris Pepulani dated 15 July 2021;
8.the Applicant's Bundle of Documents relevant to penalty comprising:
a.notices of decisions in relation to the immediate action taken by the Applicant against Dr Pepulani;
b.submissions made by Dr Pepulani to AHPRA that addresses the misconduct referred to in the Agreed Facts; and
c.a copy of the code of conduct and registration standard published by the Board, Good Medical Practice: A Code of Conduct for Doctors in Australia (Code of Conduct) and Registration Standard: Professional Indemnity Insurance Arrangements (Registration Standard).

Applicable law under the National Law

Powers of the Tribunal when practitioner found to have committed professional misconduct

Section 196 of the National Law provides for the powers of the Tribunal when it finds that a practitioner has behaved in a manner that constitutes professional misconduct. The section includes the following provisions:
…
(2)If a responsible tribunal makes a decision referred to in subsection (1)(b), 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.
(3)If the responsible tribunal decided to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.
(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; or
(b)prohibit the person, either permanently or for a stated period from —
(i)    providing any health service or a specified health service; or
(ii)     using any title or a specified title.

The meaning of 'professional misconduct' as used in the National Law

The term 'professional misconduct' is defined in s 5 of the National Law as conduct which includes:
(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 once 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 term 'unprofessional conduct' as used in paragraphs (a) and (b) of the definition of professional misconduct

The definition of unprofessional conduct is defined in s 5 of the National Law as follows:
Professional 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.

Purpose of disciplinary penalty and principles in relation to disciplinary sanctions

As the Court of Appeal stated in Singh v Medical Board of Australia[2] the purpose of disciplinary proceedings is to protect the public and not to punish the practitioner, in the sense in which punishment is imposed under the criminal law, although disciplinary orders may nevertheless have elements in common with criminal sanctions.
[2] Singh v Medical Board of Australia [2019] WASCA 51 [30] [31] (Quinlan CJ and Pritchard JA), [85] (Allanson agreeing).
The protection of the public has various dimensions. They include:[3]
1.the need to protect the public by preventing the practitioner from practising;
2.the need to bring home to the practitioner the seriousness of their conduct;
3.the need to deter the practitioner from future breaches;
4.reassuring the public that a certain type of behaviour is not acceptable professional conduct; and
5.signalling to other members of the profession that a certain type of behaviour is not acceptable professional conduct.
[3] Singh v Medical Board of Australia [2019] WASCA 51 [31] [32] (Quinlan CJ and Pritchard JA).
As the purpose of disciplinary proceedings is to ensure the protection of the public, the impact that a penalty will have on a practitioner who has been found to have committed professional misconduct is necessarily a secondary consideration. As such, the personal circumstances of the practitioner, although relevant, carry less weight and may not override the Tribunal's obligation to make orders which secure the protection of the public.[4]
[4] Singh v Medical Board of Australia [2019] WASCA 51 [33] (Quinlan CJ and Pritchard JA).
The findings of misconduct which are made in any particular case will be of particular significance in determining whether the practitioner is unfit to practice their profession. There is no category of unprofessional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and engaging the power of suspension or cancellation of a practitioner's registration. As Basten JA stated in Chen v Health Care Complaints Commission:[5]
Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct.
[5] Chen v Health Care Complaints Commission [2017] NSWCA 186 [20] (Basten JA, Leeming & Payne JJA agreeing).
While, unlike the position under s 169 of the National Law, there is no power to strike off a practitioner reposed in the Tribunal under the Legal Profession Act (2008) (WA), the Court of Appeal has endorsed as applicable by way of analogy, in a qualified way, the following statements made by Murphy and Beech JJA in the Court of Appeal in Khosa v Legal Professional Complaints Committee:[6]
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 of 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. (footnotes omitted)
[6] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [191] [192] (Murphy and Beech JJA).
Permanent unfitness to practise will be a sufficient basis for cancelling a practitioner's registration. But that is not the only basis upon which registration may be cancelled; that is, permanent unfitness to practise is not a precondition to the exercise of the power to cancel a practitioner's registration.[7]
[7] Chen v Healthcare Complaints Commission [2017] NSWCA 186 [17] and [20] (Basten JA, Leeming & Payne JJA agreeing) cited with approval in Singh v Medical Board of Australia [2019] WASCA 51 [37] [38] (Quinlan CJ and Pritchard JA).
Where, in applying the National Law the Tribunal cancels a practitioner's registration, it must also set a period of time within which the practitioner may not seek to be re-registered. In this way, the Tribunal signals the minimum period within which it considers that the practitioner may not practise their profession and also leaves open the possibility that an application for re-registration after that time will be considered.
The weight which is given to the considerations which are relevant to its exercise of discretion under s 196 is a matter for the Tribunal.
In Medical Board of Australia and Singh[8] the Tribunal identified 12 factors which may be relevant to penalty in disciplinary cases of this kind. Although not expressly endorsed by the Court of Appeal in the appeal that followed the Tribunal's decision,[9] neither were they the subject of any criticism and we would respectfully adopt them as a useful reference point for matters relevant to penalty in this case. Those factors are:[10]
[8] Medical Board of Australia and Singh [2017] WASAT 33(S) [30].
[9] Singh v Medical Board of Australia [2019] WASCA 51.
[10] Medical Board of Australia and Singh [2017] WASAT 33(S) [30].
1.The need to protect the public against further misconduct by the practitioner.
2.The need to protect the public through general deterrence of other practitioners from similar conduct.
3.The need to protect the public and maintain confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession even when there is no need to deter the practitioner from repeating the conduct.
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.
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 the practitioner's worthiness or reliability for the future.
8.The practitioner's disciplinary history.
9.Whether the practitioner has shown insight and remorse; because a practitioner who fails to understand the significance and consequence of misconduct is a risk to the community.
10.The desirability of making available to the public any special skills possessed by the practitioner.
11.The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction, although, the weight given to personal circumstances cannot override the fundamental obligation to provide appropriate protection of the public interest in the honesty and integrity of practitioners and the maintenance of proper standards of practice.
12. Other matters relevant to the practitioner's fitness to practise and aggravating or mitigating factors although, in general, mitigating factors carry considerably less significance than in the criminal process because the jurisdiction is protective not punitive.

Dr Pepulani's professional misconduct

At all material times Dr Pepulani held general and specialist (general practice) registration as a medical practitioner under the National Law and practised as a general practitioner at Southside Medical Service.
On 25 May 2018 the Board took immediate action under s 156 of the National Law and imposed five conditions which required him to be supervised by another qualified medical practitioner when practising as a medical practitioner himself. In summary, the conditions required the supervisor to be nominated by Dr Pepulani and approved by the Board. They required Dr Pepulani to cease to practice if the supervisor was unable to provide the supervision required. They also specified what constituted supervision. It included, among other things that Dr Pepulani and the supervisor consult facetoface daily and that consultations between them were to include a review of all patient clinical notes, records and test results with respect to patients attended to by Dr Pepulani on that day.
During the period between 9 June 2018 and 21 November 2018 Dr Pepulani conducted approximately 24 consultations over six nonconsecutive days as a result of which he rendered 36 services to those patients and wrote approximately 259 original prescriptions despite there not being any supervisor approved for that period. He was therefore in breach of the conditions.
On 19 December 2018 Dr Pepulani met with the supervisor who had been approved by the Board but the meeting did not meet the requirements of supervision.
Between 19 December 2018 and 6 January 2019 Dr Pepulani breached the requirement that he practise under supervision by practising on three non-consecutive days while the supervisor was on leave and unable to provide supervision. During that time, he consulted with approximately 39 patients, rendered approximately 54 services and wrote 23 original prescriptions.
Between 1 July 2018 to 20 September 2018 Dr Pepulani did not have any professional indemnity insurance cover. Despite that, he practised as a medical practitioner. This was in breach of s 129(1) of the National Law, the Registration Standard and the Code of Conduct.
Between 8 June 2018 and 11 October 2018 when AHPRA was investigating his conduct, Dr Pepulani, via his solicitor, on seven occasions informed it that he had not practised, or was not practising as a practitioner. The statements were false and misleading because in fact he had done so.
When he applied to renew his registration on 28 September 2018 Dr Pepulani declared that he had, during the previous period of registration, practised in accordance with the Board's requirements that he have professional indemnity insurance cover in place while practising the profession in Australia. That declaration was false and misleading because he had practised without such insurance in place.
Dr Pepulani's statement to the Board on 7 January 2019 that he had not practised as a medical practitioner during the period between 24 December 2018 and 6 January 2019 because his supervisor was on leave over that time, was false and misleading. The supervisor was in fact on leave from 20 December 2018 and he did practise without supervision over that time.
Those instances of dishonesty were a breach of the Code of Conduct which requires practitioners to display, among other things, honesty.

Dr Pepulani's explanation for the misconduct

In his affidavit, Dr Pepulani offers various explanations for his professional misconduct. In respect of the treating of patients on 19 September 2018, he says he had nominated a supervisor and had expected the supervisor would be approved by the Board and that on that basis he had booked consultations for 19 September 2018. He says he was desperate to return to work. He says he saw patients on that day rather than cancel bookings when the nominated supervisor was not approved by 19 September 2018.
Dr Pepulani says that on 18 October 2018 he had a performance assessment and saw patients in the course of that assessment. On the following day he saw patients who he says required follow up or review after the consultation on 18 October. He says that on reflection he should have contacted AHPRA to see what could have been done to provide those patients with the care required, as he was not entitled to practise without a supervisor and should not have done so.
He says that in respect of the consultations on 20 December 2018 and 3 January 2019, he was unaware until the last minute that the approved supervisor was going to be on leave on days when he had already had consultations booked. He considered that the best course was to ensure the patients received care rather than cancel appointments and so he practised in breach of the supervision condition. In essence, he says that his concern for his patients meant that he felt he needed to see them despite a supervisor being unavailable
Dr Pepulani says that he appreciates that he made poor decisions in relation to those matters but says also that at the time he was struggling with what was happening and the limitations which had been placed on his entitlement to practise. He says he was depressed, struggling significantly and his whole world had crumbled. He attributes the making of bad decisions both to his concern for his patients and the mental health issues he was experiencing at that time which resulted from the imposition of the conditions in the first place.
In respect of the failure to have professional indemnity insurance in place, Dr Pepulani says that he was highly stressed and believed that he would have been able to obtain insurance that would have covered him for the period when he had practised without it being in place. He says he did not wish to risk patient safety and had not wanted to practise without insurance.
In respect of the false and misleading statements, Dr Pepulani says what his lawyers communicated to the Board on his behalf was "largely true". He says he only worked on a couple of days and that he does not regard this as 'practising'. In his affidavit, Dr Pepulani says that he could have been more accurate but that he had not meant to mislead the Board. He says that the declaration that he had not practised without professional indemnity insurance cover was genuine because he believed that he was not practising.
We do not accept Dr Pepulani's statement that he did not believe that he was practising on the days when he saw patients in breach of the supervision conditions. Any reasonable practitioner would know that seeing patients, ordering tests and writing prescriptions would amount to practising as a medical practitioner. We have formed the view that Dr Pepulani was well aware that the conditions of his registration required him to engage in supervision in respect of every consultation he had with a patient during the period in respect of which the condition was in place. On that basis, while we accept that Dr Pepulani believed that he would be able to obtain insurance cover that would operate retrospectively to cover the period of time he had already practised without insurance in place, we do not accept his statement that he regarded both the statement made to the Board in relation to not practising or that made about having insurance in place, to be truthful.
The Board submits that there is no independent medical evidence tendered by Dr Pepulani that would corroborate the statements he made in his affidavit that he acted as he did while 'depressed', 'struggling significantly' and his 'whole life had crumbled'. From that, we take it that the Board submits that we should give his explanation for his conduct little weight. We accept that dealing with concerns about his fitness to practice and the resulting conditions that had been imposed on his registration would have been stressful for Dr Pepulani. We do not doubt that the stress would have increased once he had been suspended from practice. However, there is no medical evidence from which we could find that Dr Pepulani's decision making was affected by a recognised condition that was causative of his misconduct and which would mitigate the seriousness of his misconduct to any extent, or even that stress was causative of the misconduct in a way that might be mitigatory.

Dr Pepulani's suspension from practice

On 1 February 2019 Dr Pepulani's registration was suspended by way of immediate action pursuant to s 156(1)(a) of the National Law. That immediate action was taken when the Board discovered that Dr Pepulani had not complied with the conditions which had been placed on his registration on 25 May 2018 by engaging in unsupervised practice between 9 June 2018 and 21 November 2018 and 20 December 2018 to 6 January 2019.
Dr Pepulani remains suspended from practice.

References

In his affidavit Dr Pepulani states:
I had been in the profession for almost 30 years and had been a vanguard of good professional behaviour to which all of my colleagues who had worked with could attest.
However, no references from any such colleagues have been provided to us to support that assertion.

Disciplinary history

The Board conceded, and we therefore find, that Dr Pepulani has not been subject to prior disciplinary action.
The Board submits, however, that the Tribunal can have regard to the fact that concerns about his practising were such that conditions were imposed requiring him to practise under supervision in order to ensure the safety of his patients. Given that we have no knowledge about whether Dr Pepulani's patients were in fact ever at risk (despite the existence of the concerns), in our view it would be wrong to have regard to that matter in the way in which the Board submitted.

Personal circumstances

Dr Pepulani's affidavit refers to the detrimental financial impact that his suspension from practice has had on his family and the consequences that any further period of suspension would have. He also claims that the disciplinary proceedings have adversely impacted upon his own mental health and that of family members. Dr Pepulani's submission refers to his wife having been employed in the Southside Medical Service. From that, we conclude that he has a wife and very likely children, but there is no evidence before us about the ages of his children and whether his wife and any children are wholly dependent upon him. We therefore do not make any findings in that regard.
To the extent that the impact that disciplinary proceedings have had upon Dr Pepulani and his family are matters that would reduce the likelihood of a repeat of the behaviour for which the sanction is to be imposed, they are matters that are relevant to our deliberations. To the extent that they do not bear upon the issue of the need for personal deterrence, they are matters that carry significantly less weight.[11] As the Tribunal stated in Medical Board of Australia and Singh:[12]
The dominant purpose of the disciplinary regulation of the medical 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.

Remorse and insight

[11] Medical Board of Australia and Singh [2017] WASAT 33 (S)

[12] Medical Board of Australia and Singh [2017] WASAT 33 (S) [28]

In his affidavit Dr Pepulani makes many statements expressing his remorse and demonstrating that he has reflected on his conduct. He says he feels "deeply ashamed", has "well and truly learned his lesson" and made "full and frank disclosures" in relation to his conduct.
While the Board did not seek to crossexamine Dr Pepulani on his affidavit, the Board takes issue with the genuineness of those statements as to the extent of his remorse and insight into his conduct.
The Board submits that Dr Pepulani's comments about always being motivated by his desire to care for his patients and putting patient safety first, show a lack of insight into his conduct. The Board also submits that Dr Pepulani's statement that his colleagues had not raised concerns about his work before the conditions were imposed and that no patient had complained about his conduct, is also demonstrative of a lack of insight. We accept those submissions. Dr Pepulani may have been, and continues to be, confident in his abilities as a medical practitioner. But it is clear from the fact that stringent conditions that he not practise without supervision were imposed, that the Board did not share that confidence. The conditions were imposed after deficiencies in his practice were identified. It was not necessary for concerns to be raised by any colleague or patient. While we acknowledge that there is no allegation made that any patient was in fact harmed by his treatment, a matter to which we have regard in determining the appropriate penalty, Dr Pepulani's affidavit does not demonstrate that he has any insight into the fact that patient safety was put at risk as a result of his decision to breach the conditions.
The Board submits that Dr Pepulani's statement that he disputes aspects of the agreed facts but has agreed them in the interest of having this matter resolved,[13] may also indicate a lack of insight into why his conduct was unacceptable. Dr Pepulani's affidavit does not identify which are the particular aspects of the facts to which he has agreed that he regards as inaccurate. Individuals make decisions to plead guilty to offences or to concede to findings about misconduct for a variety of reasons, including the desire to put the matter behind them and to limit costs. Nevertheless, while Dr Pepulani may privately dispute some of the facts, he is to be disciplined on the basis that the facts to which he has agreed are correct. His assertion in the affidavit that some of the facts are disputed does not sit comfortably with his submission that he has been frank and truthful with the Board and his acknowledgement of wrongdoing.
[13] Affidavit of Dr Chris Pepulani dated 16 July 2021, para 3.
The Board also submits that Dr Pepulani's focus on the consequences that suspension has had on him and his family and which further suspension will have, may be reflective of a lack of insight. Being sorry for the consequences that a penalty for misconduct has had on oneself and one's family is not the same as remorse which mitigates the penalty to be imposed. However, we do not conclude that it demonstrates a lack of insight and remorse. In our view, one can be sorry both for the conduct itself and the consequence it will have for oneself.
The Board also submits that in November 2018 Dr Pepulani had expressed profound sorrow for his conduct and yet, only one month later, breached the conditions that were imposed on his registration. The Board says from that Dr Pepulani's conduct subsequent to that initial expression of remorse casts doubt on the remorse now expressed by him in his affidavit. We would not make that finding. We accept that his expression of remorse is genuine, although the breach so soon after an expression of remorse gives rise to a concern that Dr Pepulani has not learned from his mistakes and may be at risk of making mistakes in the future, despite being sorry for them.
The Board says that from all of those things we can conclude that there remain some significant deficiencies in the level of insight and remorse shown by Dr Pepulani and that a further period of suspension is therefore appropriate, so that during that time Dr Pepulani can take steps to develop that insight and the Tribunal can be assured that the public is adequately protected because the conduct will not be repeated.
While we accept that Dr Pepulani is remorseful for his misconduct, we have, for the reasons set out above, some concerns about the extent of that remorse and his insight into the seriousness of the misconduct and the factors underpinning the conduct. As a result, while there is mitigation to be found in Dr Pepulani's remorse, it is not as much as there might be in other cases where those concerns did not arise.

Seriousness of the conduct need for general deterrence

As we have set out above, Dr Pepulani's misconduct involved three discrete failings. Practising in breach of conditions, dishonesty in his dealings with AHPRA and the Board, and practising in the absence of the required professional indemnity insurance cover.
Practising in breach of the conditions requiring that he be supervised is objectively serious. As the New South Wales Civil and Administrative Tribunal stated in Health Care Complaints Commission v Townsend:[14]
There is imposed upon health practitioners…a detailed regime which regulated their conduct in the carrying out of their practice. The recognition of registration conditions within this regime and the means of enforcing them by way of disciplinary procedures reflect the intention of the legislature to ensure that these matters are approached by health practitioners and those responsible for ensuring compliance, with appropriate seriousness. A failure to adhere to the provisions of practice conditions should be regarded as a serious matter.
[14] [2014] NSWCATOD 65 [14].
The conditions were put in place for the protection of the public because of concerns which the Board had about his competency. While Dr Pepulani did not think he would be causing any harm to patients and was confident in his abilities, the public was put at risk by this breach. His explanation that he chose to treat patients because he thought he would not harm them and because he thought treatment was necessary, no other options were available and because he has assumed that his proposed supervisor would be approved by the Board, shows a disregard for his professional obligations and the serious concerns then held about the appropriateness of the clinical care he was providing to patients.
That said, while it is objectively serious misconduct, the number of patients seen without supervision, the number of days on which he practised as a medical practitioner without supervision and the fact that no patient was in fact harmed, reduces the seriousness of the conduct. On the other hand, the fact that he repeatedly breached the condition over an extended period of time (nine separate days over a seven month period) increases the seriousness of the misconduct.
Having regard to all of those factors we conclude that Dr Pepulani's misconduct is an example of misconduct which we assess as falling at the lower end of the scale of seriousness for conduct of its kind, but not at the lowest end of that scale.
It is important that other members of the profession understand that complying with conditions of their registration is essential. Conditions are imposed for the protection of the public. There is a risk that conditions will become meaningless and the public will be put at risk if there is not a strong deterrence to the breach of conditions. The penalty imposed on Dr Pepulani should, therefore, serve as a warning to other practitioners that such conduct is unacceptable and thereby deter others from behaving in a similar way in the future. Further, without a penalty of some significance being imposed in respect of this conduct, the public could not be confident in the maintenance of the proper standards of the profession.
The dishonesty involved in Dr Pepulani's misconduct is also to be viewed as serious: Medical Board of Australia and Waldron.[15] That a practitioner is honest and reliable in their dealings with AHPRA and the Board is essential because those bodies rely upon practitioners being honest in providing information relevant to decisions regarding registration and other matters: Psychology Board of Australia and Rigley.[16] The public is also entitled to have confidence in the integrity and reliability of medical practitioners. Those aspects of a practitioner's character are essential to ensuring that patients receive appropriate care and that medical practitioners can be trusted by patients. Imposing a penalty that will deter other practitioners from behaving in a like manner is a significant feature of the penalty to be imposed on Dr Pepulani for this conduct.
[15] [2017] QCAT 443 [39].
[16] [2018] VCAT 1400 [48].

In Medical Board of Western Australian v A Practitioner[17] the Tribunal noted that the system of registration of health practitioners exists for the protection of the public and that, regardless of a practitioner's own view of his suitability to practise, decisions about that matter are to be made by the authorities possessed of all relevant information. Deliberate dishonesty by a practitioner about matters relevant to a practitioner's practice, such as whether they have breached conditions imposed on their registration, as was the case here, undermines the protection of the public.
[17] [2009] WASAT 39 [94].
Practising medicine without having in place any professional indemnity insurance is also a serious matter. The public ought to be able to be confident that practitioners have appropriate indemnity insurance to which they will be able to have recourse in the event that something goes amiss in their treatment.[18] There is also a significant need for the penalty to be imposed on Dr Pepulani for this misconduct to have a general deterrent effect. The penalty also needs to be such that it will ensure public confidence in the profession.

Specific deterrence

[18] Psychology Board of Australian v Rigley [2018] VCAT 1400 [48]

Dr Pepulani says that he has learned his lesson and is remorseful. We have already found that we accept that he has shown some, but perhaps not fulsome, remorse for his conduct. We have also found that Dr Pepulani has shown some insight in that he accepts his conduct was wrong but that we are unable to find that Dr Pepulani's insight extends to recognising that he put patients at risk by practising without supervision.
While we are not satisfied that stress and mental ill-health was causative of his misconduct, Dr Pepulani says he considers those matters to have materially contributed to his bad decisions. Yet, Dr Pepulani has not presented any evidence that he has done anything to address those matters. For that reason, we are not entirely confident that Dr Pepulani would not commit professional misconduct again if faced with significant stressors in the future.
The Board also submits that the fact that Dr Pepulani has not undertaken any courses or sought any mentoring means we cannot be confident that he is unlikely to commit further acts of misconduct with the consequence that personal deterrence remains a significant aspect of the penalty to be imposed in this case.
Dr Pepulani submits that he has not participated in any courses of education for two reasons. First, he says that his financial ability to pay for courses has been greatly hampered by his suspension. Second, he says that current registration is a prerequisite for admission to many of the courses and participating in them without holding a current registration would have rendered him liable to further disciplinary action. We note that Dr Pepulani's registration has been suspended rather than cancelled. On that basis it would appear that he would have been eligible to undertake courses for which a current registration was a prerequisite. Nevertheless, although we do not have any evidentiary foundations for the assertion that his financial position precluded him undertaking any appropriate courses, we accept that his financial position would have been detrimentally impacted by his suspension and that there may have been costs of undertaking courses. While he is not to be penalised for not having undertaken courses, had he done so we may have had greater confidence in his rehabilitation such that the need for a penalty that would achieve specific deterrence would have been reduced.
Accordingly, we find that there is a need to impose a penalty that will specifically deter Dr Pepulani from committing further acts of professional misconduct, although we also find that the need for specific deterrence will have been decreased by the effect of the period of suspension from practice to which Dr Pepulani has already been subject.

Global sanction

The Board submits that it is appropriate to impose a global sanction in respect of Dr Pepulani's misconduct.
A global sanction may be appropriate where the acts are so inextricably woven as to make it difficult to meet a clear standard of prescription.[19]
[19] Medical Board of Australia and Nuttall [2017] WASAT 58 [19].
In this case the Board submits that the conduct the subject of the agreed facts arises from a course of behaviour. In our view this is not entirely accurate. Practising without professional indemnity insurance is a separate and discrete breach of Dr Pepulani's professional obligations from the failure to comply with conditions that he practise under supervision. So too, the dishonesty is separate again. None of the misconduct was of the same kind. It did not all occur at the same time. Nevertheless, the breach of conditions, the dishonesty and the break from practising that led to Dr Pepulani's professional indemnity insurance lapsing, all stem from the Board's concerns about his clinical practice that resulted in the imposition of the conditions.
Even though we do not regard the misconduct as stemming from a course of behaviour, we do regard it as appropriate to impose a global penalty in respect of all of the misconduct given the sequential and interrelated nature of the events.

Cancellation or suspension

The parties are in agreement that a period of suspension is an appropriate part of the overall penalty to be imposed in this case. The Board did not submit that Dr Pepulani has demonstrated by his conduct that he is not clinically competent to practice his profession or that his character is such that he is permanently unfit to practise. Rather, it submitted that this is a case where the conduct is sufficiently serious for suspension to be the appropriate penalty.
We accept that Dr Pepulani's conduct and character do not warrant the cancellation of his registration. We do however, determine that in light of the findings we have made in relation to the seriousness of the conduct and the need for the penalty to provide the necessary personal and general deterrence, that a significant period of suspension of Dr Pepulani's registration is appropriate.
The parties each provided us with a series of cases which they said might assist us in determining the appropriate length of suspension to be imposed. Those cases were Pharmacy Board of Australia and Nyoni,[20] Health Care Complaints Commission v Townsend,[21] Health Care Complaints Commission v Edwards,[22] Dental Board of Australia v Fun,[23] Medical Board of Australia v Putha,[24] Medical Board of Australia v Kyaw,[25] Medical Board of Australia v Win,[26] Medical Board of Australia v Konidaris[27] and Psychology Board of Australia v Rigley,[28] Medical Board of Australia and Waldron,[29] Nursing and Midwifery Board of Australia v INZ,[30] Medical Board of Australia v Duck,[31] Psychology Board of Australia v Sheppard,[32] Nursing and Midwifery Board of Australia v Mura[33] and Medical Board of Australia v Ainsworth[34].
[20] Pharmacy Board of Australia and Nyoni [2018] WASAT 134
[21] Health Care complaints Commission v Townsend [2014] NSWCATOD 65
[22] Health Care Commission v Edwards [2014] NSWCATOD 90
[23] Dental Board of Australia v Fun [2019] VCAT 287
[24] Medical Board of Australia v Putha [2014] QCAT 159
[25] Medical Board of Australia v Kyaw [2016] QCAT 34
[26] Medical Board of Australia v Win [2015] VCAT 1289
[27] Medical Board of Australia v Konidaris [2019] SACAT 52
[28] Psychology Board of Australia v Rigley [2018] VCAT 1400
[29]Medical Board of Australia and Waldron [2017] QCAT 443
[30] Nursing and Midwifery Board of Australia v INZ [2018] VCAT 99
[31] Medical Board of Australia v Duck [2017] WASAT 28.
[32] Psychology Board of Australia v Sheppard [2018] VCAT 1279
[33] Nursing and Midwifery Board of Australia v Mura [2019] VCAT 393
[34] Medical Board of Australia v Ainsworth [2019] VCAT 734
Having reviewed those cases, it is clear that there is no tariff to be imposed and that no case to which we have been referred is on all fours with this one. Each case is different and must be determined on its individual facts and by considering the disciplinary measures needed to ensure the protection of the public.
Having considered the penalties imposed in the cases to which we have been referred to Dr Pepulani's misconduct, his lack of prior disciplinary history, our findings in relation to remorse, insight, the need for personal and general deterrence and Dr Pepulani's personal circumstances, we have come to the conclusion that a suspension of Dr Pepulani's registration for a period of 18 months would be appropriate.

Period of suspension pending disciplinary proceedings

Dr Pepulani's registration has been suspended since 1 February 2019. We must therefore determine what account we take of the period for which Dr Pepulani's registration has already been suspended given that there is a link between that suspension and the misconduct for which the penalty is being imposed.
The Board's submission is that the Tribunal should exercise its discretion and order that Dr Pepulani's registration is suspended for a period of 18 months from the date the order is made. It acknowledges that this will result in Dr Pepulani having been suspended from practice and unable to practise his profession for a period of at least four years. It also acknowledges that if Dr Pepulani had not been suspended from practice and a penalty of four years were to be imposed, that would be a penalty exceeding that imposed in cases of a similar kind.
The history of this matter is such that it has taken some time to finalise. The parties seemed to reach an agreement that Dr Pepulani had engaged in professional misconduct in late 2020 but the Tribunal was not satisfied that the facts, as were then agreed, allowed us to characterise the conduct as the parties had done and some further discussions about amendments to the facts then took place. It then took some time for the Tribunal to ensure that Dr Pepulani indeed consented to the making of orders because he was at that time representing himself, was overseas and was difficult to contact. In any event, it appears that at that time the Board indicated that it considered that a period of suspension of 18 months was the appropriate penalty. It is now some eight months since that position was conveyed to Dr Pepulani. In its most recent submissions, the Board still submits that the Tribunal ought to impose a penalty of 18 months suspension. Dr Pepulani says that that would be punitive and unprincipled given that if we had imposed the penalty in late November 2020, nearly twothirds of it would have now been served.
Dr Pepulani also submits that we should take account of the time for which he has been suspended because otherwise the period for which he is ultimately unable to practice depends upon the Tribunal's very high workload and timetabling issues, such as COVID19 related lockdowns.
That submission seems to attribute delay in resolving this matter to the Tribunal. The reasons for the delay in resolving this matter have not been attributable to the Tribunal's workload or COVID-19 lockdowns. Rather, they have been the result, at various times, of difficulties in contacting Dr Pepulani, who for a period of time was representing himself and living in Africa and was not responding to repeated efforts to contact him, both parties repeatedly being late in complying with orders made by the Tribunal and the need for the Tribunal to ensure that Dr Pepulani consented to the finding in relation to liability and to seek supplementary submissions on particular matters of concern to it, such as how we should deal with the time for which Dr Pepulani has already been suspended.
The Board submits that delays in having this matter resolved were largely the result of Dr Pepulani's own conduct and the length of time he has been suspended while the matter has been proceeding and is therefore largely his own doing. The proceedings in the Tribunal were commenced after Dr Pepulani had been subject to immediate action suspension for a period of nine months. The Board submits that delay in resolving the matter has principally been caused by Dr Pepulani's lack of engagement with the proceedings. The Board submits that considerations of specific and general deterrence will be undermined if a lack of engagement in the proceedings can result in a significantly reduced period of suspension.
In our view, both parties' submissions on this issue are somewhat misdirected. The issue for us to determine is the penalty which is to be imposed for the misconduct identified for the purpose of ensuring the protection of the public, which is, of course, the underlying rationale for the imposition of a penalty in disciplinary proceedings. That requires us to have regard to all of the various dimensions of the protection of the public, including personal and general deterrence, and assuring the maintenance of the public's confidence in the competence and integrity of medical professionals and the high standards expected of the profession. In doing so, we must have regard to the facts of the misconduct and the circumstances of the practitioner at the time the penalty is to be imposed. That necessarily includes consideration of any period of time for which the practitioner has been suspended.
Matters such as whether the immediate suspension is directly referable to the misconduct for which the practitioner is to be penalised, what underlying factors contributed to the commission of the professional misconduct and what steps the practitioner has taken to ensure that the misconduct is unlikely to be repeated during the period of time for which the practitioner has been suspended are relevant to the determination of the appropriate penalty.
So too the practitioner's conduct in the disciplinary proceedings is relevant. Not because a practitioner is to be penalised for not being engaged in the process or for not being frank with the Tribunal in the course of any such proceedings or for causing any delay but because the attitude of a practitioner during disciplinary proceedings may be indicative of remorse and insight.
In this case, we find that the suspension of Dr Pepulani's registration was attributable to the conduct involved in these disciplinary proceedings.
We have concluded, therefore, that some allowance should be given for the period of suspension to which Dr Pepulani's registration has been subject. It has had a salutary effect upon him. He says in his affidavit that he has learned how important it is to comply with the Board's requirements and that he intends to do so in the future. Precisely how much allowance should be given and how it is to be given effect, are matters to which we turn next.

Backdating the commencement of the suspension to be imposed is not open

We have come to the view that any period of suspension which we impose by way of penalty should not be backdated. In coming to that view, we respectfully adopt the analysis undertaken in Teacher Registration Board of Western Australia and Clarke[35] in respect of the power to backdate a period of suspension under the Teacher Registration Act 2012 (WA) (TR Act). In that case, the Tribunal considered that the following matters led to the conclusion that it was doubtful that a disqualification imposed by way of penalty could be backdated:
1.That the Tribunal is a creature of statute whose powers are not expressed to operate retrospectively in circumstances where grants of statutory power are not construed to operate retrospectively in the absence of some indication in the legislation that the power is to operate in that way.
2.Because the Tribunal's power to make an order under s 84 of the TR Act depended on the Tribunal's finding that a disciplinary matter exists, it was not clear why Parliament would have intended that the penalty would be able to be backdated to commence before the finding itself was made.
3.An order with retrospective effect would not have the protective element to it which is the purpose of the Tribunal's disciplinary jurisdiction.
4.Sentencing for criminal offences is not an analogous basis for construing s 84(1)(a)(ii) of the TR Act so as to permit the backdating of a period of disqualification because s 87(1)(d) of the Sentencing Act 1995 (WA) expressly permits the backdating of a sentence of imprisonment to take account of the fact that an offender was remanded in custody before conviction.
5.The power to make ancillary orders conferred upon the Tribunal by s 73 of the SAT Act is a doubtful source of the power to backdate a penalty imposed under the TR Act notwithstanding there is some competing authority elsewhere in respect to the operation of similar provisions.
[35] Teacher Registration Board of Western Australia and Clarke [2021] WASAT 52 [101] – [107]
Those observations can be applied equally in the case of the exercise of power to impose a penalty under the National Law where the Tribunal's power to make an order under s 196(2) depends on the Tribunal making one of the findings set out in s 196(1)(b).
In any event, as was the case in Teacher Registration Board of Western Australia and Clarke, it is unnecessary to express a concluded view on the issue because we are satisfied that the time Dr Pepulani has been subject to suspension, which is relevant to his misconduct in this matter, can be taken into account in considering the overall period of suspension which should now be imposed.

Conclusion

Suspension

As we have said, but for the fact that Dr Pepulani has been suspended for a significant period of time, we would have imposed a period of 18 months' suspension.
However, because of the impact that the current suspension will already have on Dr Pepulani, and because that period will no doubt be considered by the public and the profession when considering the overall consequence of his behaviour upon him, we impose a period of 12 months' suspension which will have effect from the date on which our orders are made.

Reprimand

We also find that Dr Pepulani should be reprimanded. A reprimand is not a trivial matter and has the potential for serious adverse implications. It brings to the attention of the public and other practitioners, employers and potential employers that the standards expected of a medical practitioner have not been met by Dr Pepulani.[36]

Conditions

[36] Psychology Board of Australia v Rigley [2018] VCAT 1400 [52]

We find that the following conditions, which were proposed by the Applicant and not opposed by Dr Pepulani, are to be imposed on Dr Pepulani's registration in the interests of securing the protection of the public:
Education
1.The practitioner must undertake and successfully complete a program of education approved by the Western Australia Board of the Medical Board of Australia (Board), and including a reflective practice report, in relation to the standard of ethical and professional conduct expected of medical practitioners, including, but not limited to, law and ethics and expectations that medical practitioners will practise with honesty and integrity (Topics).
2.Within 14 days of being provided with the approved form (SE5) the practitioner must, on that form, nominate for approval by the Board an education course, assessment or program (Education) addressing the Topics. The practitioner must ensure:
a.the nomination includes a copy of the curriculum of the Education; and
b.the Education consists of a minimum of 8 hours.
3.The practitioner is to complete the Education within 3 months of the notice of the Board's approval of the Education.
4.Within 1 month of the completion of the Education, the practitioner must provide to AHPRA:
a.evidence of successful completion of the Education;
b.a reflective practice report demonstrating, to the satisfaction of the Board, that the practitioner has reflected on the issues that gave rise to this condition requiring that they undertake education and how the practitioner has incorporated the lessons learnt in the Education into the practitioner's practice.
5.Within 14 days of being provided with the approved form (SE6) the practitioner must provide to AHPRA, on the approved form, acknowledgement they are aware:
a.that AHPRA may contact the Education provider to confirm the evidence provided; and
b.that AHPRA may audit to ensure the Education is not used as contribution to any current or future continuing professional development (CPD) period.
Attend for mentoring
6.Once the practitioner recommences practice, he must be mentored by another registered health practitioner in relation to ethical practice as a medical practitioner, including professional, legal and ethical responsibilities, with reference to Good Medical Practice: A Code of Conduct for Doctors in Australia.
For the purposes of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.
7.The mentoring must comprise a minimum of 1 session per month with each session being of at least 60 minutes' duration, occurring over a 6 month period.
8.Within 14 days of recommencing practice, the practitioner must, on the approved form (HPN16), nominate a person(s) to be approved by the Board to act as mentor. The practitioner must ensure that the nomination is accompanied by acknowledgement, on the approved form (HPNA16), from the nominated person.
9.Within 14 days of recommencing practice, the practitioner must provide to AHPRA, on the approved form (HP16), acknowledgement that AHPRA may seek reports from the approved mentor on any or all of the following occasions:
a.every 2 months;
b.at the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring;
c.whenever the mentor has a concern or becomes aware of a concern regarding the practitioner's conduct or professional performance; and
d.when otherwise requested by AHPRA or the Board.
10.In the event the approved mentor is no longer willing or able to provide the mentoring required the practitioner is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by the practitioner within 21 days of becoming aware of the termination of the mentoring relationship.
11.Within 1 month of the conclusion of the mentoring, the practitioner must provide a report demonstrating, to the satisfaction of the Board, that the practitioner has reflected on the issues that gave rise to the condition requiring they attend for mentoring and outlining how the practitioner has incorporated the lessons learned in the mentoring into his practice.
12.Within 21 days of recommencing practice, the practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Senior Practice Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that AHPRA will contact the senior person and provide them with a copy of the conditions on the practitioner's registration or confirm that the senior person has received a copy of the conditions from the practitioner. The practitioner will be required to provide the same form:
a.within 7 days of the commencement of practice at each subsequent place of practice; and
b.within 7 days of each and every notice of any subsequent alteration of these conditions.
13.All costs associated with compliance with the conditions on their registration are at the practitioner's expense.

Review period

We consider that the conditions should be reviewed after four months from the date of their imposition.

Costs

The parties have informed the Tribunal that they each consent to an order being made that Dr Pepulani pay the Boards costs fixed in the sum of $15,000. On that basis we will make an order in those terms.

Proposed Orders

Subject to hearing from the parties, in light of the above, we propose to make the following orders:
1.The respondent is reprimanded under s 196(2)(a) of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) in relation to the professional misconduct referred to in the Tribunal's order dated 21 September 2021.
2.The respondent's registration as a medical practitioner is suspended for a period of 12 months from the date of these orders.
3.The respondent's registration as a medical practitioner is subject to the conditions set out below pursuant to s 196(2)(b)(ii) of the National Law:
Education
3.1The practitioner must undertake and successfully complete a program of education approved by the Western Australia Board of the Medical Board of Australia (Board), and including a reflective practice report, in relation to the standard of ethical and professional conduct expected of medical practitioners, including, but not limited to, law and ethics and expectations that medical practitioners will practise with honesty and integrity (Topics).
3.2Within 14 days of being provided with the approved form (SE5) the practitioner must, on that form, nominate for approval by the Board an education course, assessment or program (Education) addressing the Topics. The practitioner must ensure:
a.the nomination includes a copy of the curriculum of the Education; and
b.the Education consists of a minimum of 8 hours.
3.3The practitioner is to complete the Education within 3 months of the notice of the Board's approval of the Education.
3.4Within 1 month of the completion of the Education, the practitioner must provide to AHPRA:
a.evidence of successful completion of the Education;
b.a reflective practice report demonstrating, to the satisfaction of the Board, that the practitioner has reflected on the issues that gave rise to this condition requiring that they undertake education and how the practitioner has incorporated the lessons learnt in the Education into the practitioner's practice.
3.5Within 14 days of being provided with the approved form (SE6) the practitioner must provide to AHPRA, on the approved form, acknowledgement they are aware:
a.that AHPRA may contact the Education provider to confirm the evidence provided; and
b.that AHPRA may audit to ensure the Education is not used as contribution to any current or future continuing professional development (CPD) period.
Attend for mentoring
3.6Once the practitioner recommences practice, he must be mentored by another registered health practitioner in relation to ethical practice as a medical practitioner, including professional, legal and ethical responsibilities, with reference to Good Medical Practice: A Code of Conduct for Doctors in Australia.
For the purposes of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.
3.7The mentoring must comprise a minimum of 1 session per month with each session being of at least 60 minutes' duration, occurring over a 6 month period.
3.8Within 14 days of recommencing practice, the practitioner must, on the approved form (HPN16), nominate a person(s) to be approved by the Board to act as mentor. The practitioner must ensure that the nomination is accompanied by acknowledgement, on the approved form (HPNA16), from the nominated person.
3.9Within 14 days of recommencing practice, the practitioner must provide to AHPRA, on the approved form (HP16), acknowledgement that AHPRA may seek reports from the approved mentor on any or all of the following occasions:
a.every 2 months;
b.at the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring;
c.whenever the mentor has a concern or becomes aware of a concern regarding the practitioner's conduct or professional performance; and
d.when otherwise requested by AHPRA or the Board.
3.10In the event the approved mentor is no longer willing or able to provide the mentoring required the practitioner is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by the practitioner within 21 days of becoming aware of the termination of the mentoring relationship.
3.11Within 1 month of the conclusion of the mentoring, the practitioner must provide a report demonstrating, to the satisfaction of the Board, that the practitioner has reflected on the issues that gave rise to the condition requiring they attend for mentoring and outlining how the practitioner has incorporated the lessons learned in the mentoring into his practice.
3.12Within 21 days of recommencing practice, the practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Senior Practice Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that AHPRA will contact the senior person and provide them with a copy of the conditions on the practitioner's registration or confirm that the senior person has received a copy of the conditions from the practitioner. The practitioner will be required to provide the same form:
a.within 7 days of the commencement of practice at each subsequent place of practice; and
b.within 7 days of each and every notice of any subsequent alteration of these conditions.
3.13All costs associated with compliance with the conditions on their registration are at the practitioner's expense.
4.The review period of four months is set for the above conditions.
5.The Respondent is to pay the Applicant's costs fixed in the sum of $15,000 within 21 days of this order or such further time as may be agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
CH
Associate to Judge Glancy
23 SEPTEMBER 2021