Medical Board of Australia v Dielenberg (Occupational Disciple) - [2024] ACAT 40

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MEDICAL BOARD OF AUSTRALIA v DIELENBERG (Occupational Discipline) [2024] ACAT 40

OR 7/2023
Catchwords: OCCUPATIONAL DISCIPLINE (HEALTH PRACTITIONER) – professional misconduct – breach of personal and professional boundaries by engaging in intimate relationship with patient - inappropriate prescribing of Schedule 4 and Schedule 8 medications – inappropriate use of position – inadequate record keeping – inadequate specialist referrals – relevance of coercion and state of mind to risk of re-offending – existing suspension period of two years and ten months - orders by consent – cancellation of registration – disqualification from applying for re-registration for four months – prohibition from providing any health service for four months – reprimand
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 39, 55
Health Practitioner Regulation National Law (ACT) ss 5, 193, 195, 196
Health Practitioner Regulation National Law Act 2010 s 6
Medicines, Poisons and Therapeutic Goods Act 2008

Subordinate
legislation cited: Medicines, Poisons and Therapeutic Goods Regulation 2008

Cases cited:Chinese Medical Board of Australia v Zhou [2020] SACAT 23
Council of the Law Society of the ACT v Legal Practitioner 20214(Occupational Discipline) [2022] ACAT 33
Dielenberg v Medical Board of Australia (Occupational Discipline) [2021] ACAT 85
Health Care Complaints Commission v Grech [2021] NSWCATOD 14
Health Care Complaints Commission v Neale [2024] NSWCATOD 16
Health Care Complaints Commission v Philipiah [2013] NSWCA 342
Health Ombudsman v HSK [2018] QCAT 419
Health Ombudsman v Joy [2020] QCAT 202
Health Ombudsman v SWB [2022] QCAT 267
Lee v Health Care Complaints Commission [2012] NSWCA 80
Medical Board of Australia v Ainsworth [2019] VCAT 734
Medical Board of Australia v Al-Naser (No. 2) [2024] ACAT 8
Medical Board of Australia v Al-Naser (No. 3) [2024] ACAT 9
Medical Board of Australia v Bradshaw [2020] VCAT 584
Medical Board of Australia v CDA [2023] 64
Medical Board of Australia v Martin [2013] QCAT 376
Medical Board of Australia v Singh [2017] WASAT 33
Medical Board of Australia v Stone [2023] ACAT 38
Nursing and Midwifery Board of Australia v Augustin (Occupational Discipline) [2022] ACAT 54
Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68
Psychology Board of Australia v Griersmith [2019] VCAT 52

Tribunal:Member E Morrison
Senior Member M Matheson

Date of Orders:  21 February 2024
Date of Reasons for Decision:        5 June 2024
Date of Publication:  6 June 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 7/2023

BETWEEN:

MEDICAL BOARD OF AUSTRALIA
Applicant

AND:

CLAIRE DIELENBERG
Respondent

TRIBUNAL:Member E Morrison
Senior Member M Matheson

DATE:21 February 2024

ORDER

The Tribunal being satisfied that the respondent has behaved in a way that constitutes professional misconduct within the meaning of paragraphs (a), (b) and (c) of the definition of ‘professional misconduct’ in section 5 of the Health Practitioner Regulation National Law (ACT) (the National Law), the Tribunal orders by consent:

The respondent’s registration as a health practitioner is cancelled.
The respondent is disqualified from applying for re-registration as a health practitioner for a period of four months from the date of these orders.
The respondent is prohibited from providing any health service for a period of four months from the date of these orders.
The respondent is reprimanded for her conduct.

The Tribunal further orders that:

Pursuant to section 195 of the National Law, the respondent is to pay the applicant’s costs of these proceedings on a party/party basis calculated at the Supreme Court of the ACT scale in an amount as agreed by the parties, or failing agreement, as assessed by the tribunal.
Pursuant to section 39(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACT):
(a)There is to be no public access to the file for this proceeding.
(b)Publication or disclosure of the names or other information that may identify any third person to whom an allegation relates or any other third party associated with this proceeding, other than the respondent, is prohibited.
(c)The reasons for this decision are to be published with the names of third parties anonymised.
…………………………..

Member E Morrison
For and on behalf of the Tribunal

REASONS FOR DECISION

The Medical Board of Australia (the Board) sought orders for occupational discipline against the respondent under section 196 of the Health Practitioner Regulation National Law (ACT) (the National Law).
The respondent was first registered as a health practitioner in Australia in December 1991. At the time of her admitted conduct, the respondent held general registration with the Board and had almost 30 years’ experience in medical practice.
In January and February 2021, the Board received four notifications about the respondent’s treatment and management of a patient (Patient X) with whom she was engaged in a personal and/or intimate relationship. In April 2021, the Board took immediate action under section 156 of the National Law to suspend the respondent’s registration. The Board’s decision was upheld on appeal.[1] At the time of the hearing, the respondent’s registration had been suspended for a period of two years and ten months.
[1] Dielenberg v Medical Board of Australia(Occupational Discipline) [2021] ACAT 85
This application is a referral under section 193(1)(a) of the National Law. The Board made four allegations against the respondent regarding her conduct between December 2019 and January 2021:[2]
(a)breach of professional boundaries by engaging in a personal and sexual relationship with Patient X, which contravened the Board’s Code of Conduct (the Code);[3]
(b)inappropriate prescribing of medication to Patient X, including Schedule 4 and Schedule 8 medications, which contravened the Medicines, Poisons and Therapeutic Goods Act 2008 (the Medicines Act), the Medicines, Poisons and Therapeutic Goods Regulation 2008 (the Medicines Regulations), the Australian Therapeutic Guidelines,[4] and the Code;
(c)inappropriate use of her position as a medical practitioner in relation to her contact with ACT Police and Patient X’s treatment team, which contravened the Code; and
(d)inadequate record keeping, including the provision of incomplete and inadequate specialist referrals, which contravened the Code.
[2] Annexure A to the application contains a Notice of Allegations. During the hearing, the Board filed an updated Annexure A dated 21 February 2024, containing updated particulars
[3] Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014), issued by the Medical Board of Australia
[4] Therapeutic Guidelines, Pain and Analgesia: The role of analgesics in chronic pain (2020); Therapeutic Guidelines, Addiction Medicine: Alcohol; Benzodiaepines, zolpidem and zopiclone (2013); Therapeutic Guidelines, Psychotropic: Treatment resistant major depression in adults and young people (2021)
The respondent accepted her admitted conduct warranted a finding of professional misconduct as defined in section 5 of the National Law.[5]
[5] Respondent’s outline of submissions on characterisation, dated 19 January 2024 at [4]
During the hearing, the parties filed an amended Statement of Agreed Facts and put forward proposed consent orders. At the Tribunal’s request, the parties made a joint oral submission in support of the proposed orders on sanction.[6]
[6] Transcript of proceedings, dated 21 February 2024, page 55 line 1 – page 59 line 14
The tribunal’s power to make consent orders is set out in section 55 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) as follows:
(1) This section applies if, at any stage in dealing with an application—
(a)the parties reach agreement—
(i)about the terms of a tribunal decision in relation to the application; or
(ii)about how to deal with a part of the application or a matter arising out of the application; and
(b)the terms (the agreed terms) of the agreement are recorded by, or lodged with, the tribunal; and
(c)the tribunal is satisfied that an order or decision in, or consistent with, the agreed terms would be—
(i)within the powers of the tribunal; and
(ii)appropriate for the tribunal to make.
(2) If the agreed terms are about a tribunal decision in relation to the application, the tribunal may, by order, make a decision in accordance with the agreed terms—
(a)without holding a hearing; or
(b)if a hearing has begun—without completely dealing with the application at the hearing.
…
For the reasons below, we were satisfied the requirements of section 55(1) had been met and made orders under section 55(2) in accordance with the agreed terms. Short oral reasons were given at the time. These reasons confirm that decision.[7]

The agreed facts

[7] In these reasons, a reference to ‘tribunal’ refers to the ACAT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the members who heard the application

Key agreed facts relating to the respondent’s admitted conduct are as follows:[8]
[8] As set out in the amended Statement of Agreed Facts
(a)In December 2019, the respondent commenced a personal and sexual relationship with Patient X. This evolved into the respondent and Patient X living together at the respondent’s home. The personal relationship continued until at least December 2020.
(b)Between January 2020 and January 2021, Patient X was drug dependent, a chronic alcoholic and had significant mental health issues. The respondent gradually became aware of these issues due to their cohabitation and her ongoing personal and treating relationship with Patient X.
(c)Between 22 December 2019 and 19 January 2021, the respondent consulted with and provided medical care to Patient X as a patient. A list of medications prescribed by the respondent for Patient X was attached to the Statement of Agreed Facts and included Schedule 4 and Schedule 8 medications.
(d)In the ACT, Schedule 4 medications are only available by prescription. Schedule 8 medications are controlled medications. Approval by the ACT Chief Health Officer (CHO) is required before prescribing a controlled medication to a person for continuing treatment, where expected treatment is for greater than two months, or where they are a drug-dependent person. CHO approval and an endorsement to treat patients with drug dependency is required before prescribing Buprenorphine (Norspan).
(e)The respondent warned Patient X to consume medication in accordance with the prescriptions and provided replacement scripts for medications which she asserted had been lost by him.
(f)On 14 August 2020, the ACT Health Protection Service wrote to the respondent seeking information about her prescription of Norspan patches to Patient X without CHO approval. The respondent did not reply.
(g)Between 22 December 2019 and 2 August 2020, the respondent kept no clinical records for Patient X despite issuing regular prescriptions for him during that period.
(h)Between 7 August 2020 and 19 February 2021, the respondent kept clinical records for Patient X, but the records did not, among other things, include an adequate and complete medical history, or reflect any or a sufficient clinical assessment of Patient X and his therapeutic needs.
(i)Between 22 September 2020 and 19 January 2021, the respondent issued referrals to Patient X to four specialists. The referrals did not:
(i)      provide a complete account of Patient X’s current and past medications, particularly opioids and benzodiazepines;
(ii)     contain an accurate summary of Patient X’s current health issues, including his opioid, benzodiazepine and alcohol dependence; and/or
(iii)   document a clinical assessment of all of Patient X’s health issues.
(j)Between 22 January 2021 and 28 January 2028, while Patient X was held by police in custody, the respondent had several interactions with Clinical Forensic Medical Services (CFMS) and/or ACT Police. During those interactions, the respondent identified herself as Patient X’s general practitioner, sought medical and/or treatment information about him, and advised she had been asked to write a report on Patient X. The respondent did not disclose she had been in a personal or romantic relationship with Patient X.
(k)On 24 January 2021, the respondent issued a medical summary for Patient X which did not provide a complete account of Patient X’s current or past medications, nor did it contain an accurate summary of Patient X’s current health issues.
The parties agreed that:
(a)the respondent’s prescribing was, in a number of respects, inappropriate as it:
(i)      was not clinically justified;
(ii)     was in inappropriate quantities;
(iii)   was not within safe prescribing as outlined in the Australian Therapeutic Guidelines;
(iv) was in breach of the Medicines Act and the Medicines Regulations; and/or
(v)     potentially exposed Patient X to harm;
(b)the respondent’s warnings to Patient X to consume medication in accordance with the prescriptions were insufficient in the circumstances;
(c)the respondent’s provision of replacement scripts to Patient X was not appropriate in the circumstances;
(d)the respondent’s failure to keep any or adequate clinical records and/or provide complete or adequate specialist referrals increased the risk of harm to Patient X; and
(e)the respondent misled CFMS and ACT Police, by omission, in failing to identify that she had had a personal or romantic relationship with Patient X.
The parties did not agree whether any coercion, trauma or mental health issues experienced by the respondent arising from her relationship with Patient X caused or contributed to her admitted misconduct. We considered this was not material to characterisation, but it was relevant to our assessment of whether the proposed sanctions were appropriate for the purpose of section 55 of the ACAT Act. This is discussed below.
Having reviewed the documents and evidence filed for the proceedings, we were satisfied the amended Statement of Agreed Facts accurately described the key facts which, being admitted, establish the Board’s allegations against the respondent.

Agreed characterisation of the conduct as professional misconduct

‘Professional misconduct’ is defined in section 5 of the National Law as follows:
professional misconduct, of a registered health practitioner, 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 one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)     conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
‘Unprofessional conduct’ is defined in section 5 of the National Law to mean:
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, and includes-
(a)     a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
…
(d)     providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person’s well-being; and
(e)     influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
…
We accept the admitted conduct should be characterised as professional misconduct as defined in paragraphs (a), (b) and (c) of section 5 of the National Law. In our view, the conduct, which continued for a period of over 12 months:
(a)fell substantially below the standard reasonably expected of a registered general practitioner with almost 30 years’ experience in medical practice;
(b)involved multiple instances of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner; and
(c)was inconsistent with the respondent being a fit and proper person to hold registration as a health practitioner.[9]

Proposed consent orders on sanction

[9] For consideration of paragraph 5(c) of the National Law, see Psychology Board of Australia v Griersmith [2019] VCAT 52 at [67], Medical Board of Australia v Al-Naser (No. 2) [2024] ACAT 8 at [45]

The parties proposed consent orders on sanction as follows:
(a)the respondent be reprimanded for her conduct;
(b)the respondent’s registration as a health practitioner be cancelled;
(c)the respondent be disqualified from applying for re-registration as a health practitioner for a period of four months from the date of the tribunal’s orders; and
(d)the respondent be prohibited from providing any health service for a period of four months from the date of the tribunal’s orders.

The tribunal’s power to make the proposed consent orders on sanction

Section 55 of the ACAT Act requires the tribunal to be satisfied that the proposed orders would be:
(a)within the powers of the tribunal; and
(b)appropriate for the tribunal to make.
In relation to jurisdiction, we were satisfied the tribunal had power to make the proposed orders on the basis that:
(a)it was the responsible tribunal pursuant to section 8 of the Health Practitioner Regulation National Law Act 2010;
(b)the tribunal could decide, under section 196(1)(b) of the National Law, that the respondent had behaved in a way that constitutes professional misconduct;
(c)consequently, the tribunal was empowered to make orders for one or more of the sanctions provided in section 196(2) of the National Law; and
(d)the proposed orders on sanction were consistent with those sanctions.
The next question was whether the proposed orders on sanction were appropriate.

Principles for assessing whether proposed orders on sanction are appropriate

The tribunal’s task in considering proposed consent orders for occupational discipline has been widely considered.
As a general rule, the tribunal is reluctant to “go behind” a proper agreement reached by the parties, particularly where they are legally represented, unless an exceptional circumstance exists.[10]
[10] Health Ombudsman v SWB [2022] QCAT 267 at [65]; see also Medical Board of Australia v Martin [2013] QCAT 376 at [91]
This must be balanced with the tribunal’s role and function in disciplinary proceedings, which is to set standards for the profession and protect the public.[11]
[11] Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68 (Izzard) at [9]-[10]
It is not necessary for the tribunal to determine whether it would have made the same orders had the matter proceeded to a full hearing, but it does need to be satisfied that the proposed sanction is an appropriate response to the conduct having regard to the particular facts and circumstances of the case.[12]

Were the proposed orders on sanction appropriate?

[12] Council of the Law Society of the ACT v Legal Practitioner 20214(Occupational Discipline) [2022] ACAT 33 (LP 20214) at [92]; Nursing and Midwifery Board of Australia v Augustin (Occupational Discipline) [2022] ACAT 54 at [46]-[47] citing LP 20214;; Izzard at [10]

The principles guiding the determination of disciplinary orders for health practitioners were set out in Medical Board of Australia v Singh,[13] and relevantly include:
(a)The need to protect the public against further misconduct by the respondent (specific deterrence).
(b)The need to protect the public, through general deterrence, of other practitioners from similar conduct.
(c)The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions.
(d)Whether the practitioner has breached any Act, Regulations, Guidelines or Code of Conduct issued by the relevant professional body and if so, was this done knowingly.
(e)The respondent’s disciplinary history.
(f)Any remorse or insight shown by the practitioner.
[13] [2017] WASAT 33 at [30]; applied in Al-Naser (No. 3) at [18]
Where the parties agree on sanction, these principles assist in the assessment of whether the proposed sanction is appropriate for the purpose of section 55 of the ACAT Act.
The following paragraphs apply these principles to the present case.
Specific deterrence
This involved an assessment of the risk of further misconduct by the respondent. It was difficult to assess.
A key issue for us was whether the respondent experienced coercion or trauma in her relationship with Patient X and/or resultant mental health issues and, if so, what weight should be given to this in our assessment of the level of risk of reoffending by the respondent.
The authorities support that an impaired state of mind of a health practitioner at the time of their misconduct, and subsequent action taken by them to address the underlying circumstances, is relevant when assessing future risk to the public of the practitioner re-engaging in the same or similar conduct.[14] Where misconduct is related to a medical condition or mental health issue, it does not excuse the behaviour but may be taken into account as a mitigating factor.[15] This is consistent with the overarching purpose of disciplinary proceedings as protective, not punitive.
[14] Medical Board of Australia v Stone [2023] ACAT 38 (Stone) at [13]
[15] Stone at [14]; Health Ombudsman v HSK [2018] QCAT 419 at [28]; Health Ombudsman v Joy [2020] QCAT 202 at [11]
Submissions filed by the respondent before the hearing referred to coercion as a significant contributing factor to her poor judgement and decision-making. She asserted that, once free from the relationship with Patient X, there ceased to be a risk of re-offending.[16] If this position were accepted, it may favour sanctions at the lower end of the scale.
[16] Respondent’s outline of submissions on characterisation, dated 19 February 2024, at [9], [16]–[18]; Witness Statement dated 23 October 2023, at [17], [22], [25]-[26]
There is an alternative argument that, as a medical practitioner with almost 30 years’ experience, the respondent ought to have identified the risks arising from her relationship with Patient X and sought support or independent professional help. Without appropriate training and support, there may be an ongoing secondary risk that the respondent could find herself in a similar situation in the future, exposing her patients to potential harm and causing further reputational damage to the profession. This would favour sanctions at the higher end of the scale, such as a longer disqualification period to give the respondent more time to obtain the treatment and support she requires to safely return to medical practice.
The parties did not agree on facts involving coercion, trauma or mental health issues experienced by the respondent. The parties agreed that the respondent had undertaken continuing education since her suspension but did not provide evidence or submissions about her current mental health or ongoing support strategies. When pressed by the Tribunal, the parties jointly submitted that no exceptional circumstances existed to warrant the Tribunal departing from the agreed sanction.[17]
[17] Transcript of proceedings dated 21 February 2024, page 56, line 38-45
We noted the respondent (via her legal representatives) had been given sufficient opportunity at the hearing to address this issue, and that the Board would consider this further if the respondent were to apply for re-registration in the future.
On balance, we considered these matters were relevant, but not determinative, and supported a finding that the proposed sanctions were appropriate.
General deterrence of other practitioners
A reprimand would be a formal and public denunciation of the respondent’s conduct. Cancellation of her registration means she would need to satisfy the Board that she is fit and proper to hold registration as a medical practitioner if she were to apply for re-registration in the future. A disqualification period of four months before the respondent could apply for re-registration or provide a health service would be in addition to the respondent’s existing suspension of two years and ten months.[18]
[18] As at the hearing date
We considered the proposed sanctions would have significant personal, financial, and reputational implications for the respondent, and send a strong message of deterrence to the medical profession. This supported a finding that the proposed sanctions were appropriate.
Protect the public and maintain public confidence in the profession
General practitioners hold important responsibilities in the Australian community and are held to a high ethical standard. They are often the first point of contact for individuals in the health care system. Patients rely on their GP to provide holistic and coordinated care. This includes assisting patients to identify and manage health risks and seek appropriate help, including for drug and alcohol dependencies and in the context of dysfunctional relationships.
The respondent’s failure to take steps to avoid a personal relationship with Patient X (such as by seeking professional help or support), her poor professional judgement which led to her unsafe and inappropriate prescribing, and her misleading contact with ACT Police and CFMS risked undermining the reputation of, and public confidence in, the medical profession.
This supported a finding that the proposed sanctions were appropriate.
Non-compliance with regulatory framework
The respondent’s misconduct contravened the legal and regulatory framework governing health practitioners.
The respondent provided medical care for over 12 months to a person with whom she was involved in a close personal relationship. This breached the Code and significantly impaired her professional judgement.
The respondent’s prescribing of Schedule 4 and Schedule 8 medications to Patient X contravened the Medicines Act, the Medicines Regulations, the Australian Therapeutic Guidelines, and the Code. Her inadequate record keeping and specialist referrals further contravened the Code and increased the risk of harm to Patient X. Her conduct continued after she became aware that Patient X had drug and alcohol dependencies and significant mental health concerns. The respondent did not disclose her conflict of interest to CFMS and ACT Police. Her conduct was unsafe, unethical and unlawful, and its seriousness cannot be underestimated.
These factors supported a finding that the proposed sanctions were appropriate.
Respondent’s disciplinary history
Restrictions were placed on the respondent’s registration in 2008 following a notification received by the NSW Medical Board. The respondent received treatment and participated successfully in a health program. The respondent submitted that her previous conduct in NSW was not of the same character as the misconduct the subject of these proceedings.[19]
[19] Respondent’s outline of submissions on characterisation, dated 19 January 2024 at [22]
We accepted the prior notification related to different facts and circumstances, but considered it raised similar questions as in the current proceedings about the respondent’s state of mind and her capacity to identify risk and seek appropriate help. This is relevant to ongoing risk and will need to be considered by the Board if the respondent were to apply for re-registration in the future.
This supported a finding that the proposed sanctions were appropriate.
Remorse or insight
The respondent had completed numerous professional development courses, most of which were undertaken after her suspension in 2021. She had read and considered a range of relevant educational materials. She accepted that her admitted conduct constitutes professional misconduct.
These indicate a level of insight, and supported a finding that the proposed sanctions were appropriate.
Comparative decisions
Each case must be decided on its facts having regard to the specific conduct in the particular circumstances. It can, however, be helpful to consider comparative cases as a general guide as to what sanctions were considered appropriate in those matters.[20]
[20] Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34]; Chinese Medical Board of Australia v Zhou [2020] SACAT 23 at [98]
In Health Care Complaints Commission v Grech,[21] the practitioner prescribed medications to a patient with whom he had been in an intimate relationship, including anti-psychotic and weight loss drugs. The sanctions included a reprimand, six months suspension and conditions on registration.
[21] [2021] NSWCATOD 14
In Medical Board of Australia v Stone,[22] the practitioner misappropriated and forged prescriptions for Schedule 4 and Schedule 8 medications, which he self-administered. The practitioner had been diagnosed with severe depressive disorder and alcohol misuse disorder. The practitioner engaged in extensive rehabilitation, provided evidence of his good character and insight, and gave a voluntary undertaking not to practice medicine. The sanctions included a reprimand and disqualification from applying for re-registration as a medical practitioner for a period of three months.
[22] [2023] ACAT 38
In Medical Board of Australia v Ainsworth,[23] the practitioner engaged in a social and/or close personal and/or intimate relationship with a patient. The practitioner prescribed medication whilst in the personal relationship and failed to maintain adequate clinical records. The tribunal found the practitioner was aware, or ought reasonably to have suspected, that he had a health condition or impairment that could adversely affect his judgement, his performance, or his patients’ health. The sanctions included a reprimand, cancellation of registration and a disqualification period of six months.
[23] [2019] VCAT 734
In Medical Board of Australia v Bradshaw,[24] the practitioner entered into a sexual relationship with a patient and prescribed Schedule 8 medication knowing there was a risk of the patient becoming addicted. There was evidence the cause of the patient’s subsequent death was a drug overdose (Schedule 8 medication). The practitioner’s registration was immediately suspended in 2017. The tribunal subsequently ordered the practitioner’s registration be cancelled and disqualified him from applying for re-registration until 2025.

Conclusion on sanction

[24] [2020] VCAT 584

On balance, and having regard to the above, we determined the proposed sanctions were appropriate for the purpose of section 55 of the ACAT Act and we made orders on the terms proposed by the parties.

Costs

The parties proposed that the respondent pay the applicant’s costs on a party/party basis calculated using the ACT Supreme Court scale.
We were satisfied an order to this effect was within power and appropriate, having regard to section 195 of the National Law which gives the tribunal a wide discretion to award costs, and the general principle that costs are awarded to compensate a successful party.[25]
[25] Healthcare Complaints Commission v Neale [2024] NSWCATOD 16 at [8]; Health Care Complaints Commission v Philipiah [2013] NSWCA 342
Accordingly, we made the proposed order on costs.

Non-publication

It is important for the purpose of general deterrence and maintaining public confidence and trust in the profession that these reasons are publicly available. This must be balanced against the need to protect the privacy of third parties.
Accordingly, we made orders under section 39 of the ACAT Act prohibiting public access to the file and publication of details that may identify a third party.
………………………………..

Member E Morrison
For and on behalf of the Tribunal

Date(s) of hearing:	20 and 21 February 2024
Counsel for the Applicant:	Mr P Woulfe
Solicitors for the Applicant:	Ms K Easedale, Minter Ellison Lawyers
Counsel for the Respondent:	Mr D Crowe
Solicitors for the Respondent:	Ms G Burke, Wotton + Kearney