Medical Board of Australia v McCarthy - [2020] WASAT 12

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION:   MEDICAL BOARD OF AUSTRALIA and MCCARTHY [2020] WASAT 12
MEMBER:   JUDGE T SHARP, DEPUTY PRESIDENT
MS C WALLACE, SENIOR MEMBER
DR H HANKEY, SENIOR SESSIONAL MEMBER

HEARD:   25 NOVEMBER 2019
DELIVERED          :   13 JANUARY 2020
PUBLISHED           :   20 JANUARY 2020
FILE NO/S:   VR 182 of 2016
BETWEEN:   MEDICAL BOARD OF AUSTRALIA
Applicant
AND
PETER MCCARTHY
Respondent

Catchwords:

Vocational regulation - Medical practitioner - Disciplinary proceedings - Professional misconduct - Sexual relationship with patient - Prescription of medication to patient - Clinical notes illegible and unintelligible - Referral letter containing false information - Attempted to persuade patient not to cooperate with enquiries

Legislation:

Criminal Code (WA), s 130(2)
Health Practitioner Regulation National Law (WA) Act 2010, Sch 1, s 6
Health Practitioner Regulation National Law (WA), s 3(2)(a), s 3(3)(c), s 4, s 5, s 39, s 41, s 193, s 195, s 196
State Administrative Tribunal Act 2004 (WA), s 60(2), s 62(3)

Result:

Application successful

Category: B

Representation:

Counsel:

Applicant	:	Ms F Stanton
Respondent	:	Mr A Hershowitz

Solicitors:

Applicant	:	Tottle Partners
Respondent	:	Butcher Paull & Calder

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

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Briginshaw v Briginshaw (1938) 60 CLR 336
Dekker v Medical Board of Australia [2014] WASCA 216
Felix v General Dental Council [1960] AC 704
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Psychologists Board of Queensland v Robinson [2004] QCA 405
Qidwai v Brown [1984] 1 NSWLR 100

REASONS FOR DECISION OF THE TRIBUNAL:

Background

The Applicant (Board) is established under s 31 of the Health Practitioner Regulation National Law (WA) (National Law). The National Law is set out in Schedule 1 of the Health Practitioner Regulation National Law (WA) Act 2010 (2010 Act).
The Respondent (Practitioner) was at all relevant times a registered medical practitioner under the National Law.
This matter comes before the Tribunal by way of an application made by the Board dated 28 October 2016 and filed with the Tribunal on the same date (VR 182 of 2016). The Board alleges that there is proper cause for disciplinary action against the Practitioner under s 196 of the National Law.
The grounds for the application are included in an annexure to the application. The Board then on 30 May 2017 filed a Minute of Substituted Grounds for its application (Substituted Grounds) and on 6 June 2017 the Tribunal gave leave to the Board to amend its application so that the Substituted Grounds stood as the grounds of the application.
The Substituted Grounds for the application are framed by the Board as follows, the 'Applicant' being the Board and the 'Respondent' being the Practitioner:

1.The Applicant is established pursuant to section 31 of the National Law and has the functions referred to in section 5 of the National Law, including the referral of matters concerning registered health practitioners to responsible tribunals in participating jurisdictions.
2.The Respondent:
2.1has, and had at all material times, general and specialist registration as a physician and psychiatrist; and
2.2at all material times practised as a psychiatrist.

3.From 15 June 2012 until 25 August 2014 the Respondent was regularly consulted by [a patient of the Practitioner] (the Patient) in respect of her psychiatric health, including her grief following the recent deaths of her husband and her mother (the Consultations).

Particulars of the Consultations
A.The Patient consulted the Respondent on:
(i)15 June 2012;
(ii)27 August 2012;
(iii)12 October 2012;
(iv)9 November 2012;
(v)7 December 2012;
(vi)18 January 2013;
(vii)15 February 2013;
(viii)1 March 2013;
(ix)15 March 2013;
(x)25 March 2013;
(xi)10 April 2013;
(xii)19 April 2013;
(xiii)26 April 2013;
(xiv)10 May 2013;
(xv)17 May 2013;
(xvi)24 May 2013;
(xvii)31 May 2013;
(xviii)7 June 2013;
(xix)14 June 2013;
(xx)21 June 2013;
(xxi)28 June 2013;
(xxii)5 July 2013;
(xxiii)22 July 2013;
(xxiv)26 July 2013;
(xxv)29 July 2013;
(xxvi)2 August 2013;
(xxvii)9 August 2013;
(xxviii)16 August 2013;
(xxix)19 August 2013;
(xxx)23 August 2013;
(xxxi)30 August 2013;
(xxxii)6 September 2013;
(xxxiii)13 September 2013;
(xxxiv)20 September 2013;
(xxxv)27 September 2013;
(xxxvi)7 October 2013;
(xxxvii)14 October 2013;
(xxxviii)21 October 2013;
(xxxix)28 October 2013;
(xl)4 November 2013;
(xli)5 November 2013;
(xlii)18 November 2013;
(xliii)25 November 2013;
(xliv)2 December 2013;
(xlv)9 December 2013;
(xlvi)10 December 2013;
(xlvii)16 December 2013;
(xlviii)6 January 2014;
(xlix)7 January 2014;
(l)13 January 2014;
(li)20 January 2014;
(lii)3 February 2014;
(liii)10 February 2014;
(liv)17 February 2014;
(lv)24 February 2014;
(lvi)10 March 2014;
(lvii)11 March 2014;
(lviii)17 March 2014;
(lix)24 March 2014;
(lx)25 March 2014;
(lxi)3 April 2014;
(lxii)7 April 2014;
(lxiii)17 April 2014;
(lxiv)5 May 2014;
(lxv)12 May 2014;
(lxvi)19 May 2014;
(lxvii)26 May 2014;
(lxviii)16 June 2014
(lxix)23 June 2014;
(lxx)30 June 2014;
(lxxi)7 July 2014;
(lxxii)14 July 2014;
(lxxiii)28 July 2014;
(lxxiv)4 August 2014;
(lxxv)11 August 2014;
(lxxvi)15 August 2014; and
(lxxvii)25 August 2014.

4.During the period referred to in 3 the Respondent:
4.1permitted to develop, and became involved in a close, personal, intimate and sexual relationship with the Patient; and
4.2failed to practice in accordance with section 8.2 of 'Good Medical Practice: A Code of Conduct for Doctors in Australia' (Code of Conduct) in that he;
4.2.1failed to maintain professional boundaries in his dealings with the Patient; and
4.2.2used his professional position to establish or pursue a sexual relationship with the Patient.

Particulars
A.The Respondent allowed the Patient to consult with him more frequently than was necessary for the proper treatment of any psychiatric illness from which she suffered, and spent time socialising with the Patient during the Consultations rather than assessing or treating the Patient.
B.During the period from about 1 March 2013 until about 25 August 2014, during the Consultations or alternatively during some of the Consultations:
(i)the Respondent allowed the Patient to groom him by manicuring his fingernails, massaging his hands, arms, chest and neck with cream, trimming his nose and ear hair and filing his toenails;
(ii)the Respondent allowed the Patient to measure his blood pressure;
(iii)the Respondent allowed the Patient to sew buttons on his shirts;
(iv)the Respondent and the Patient ate and drank food and beverages, including alcoholic beverages, which the Patient brought to the Consultations;
(v)the Respondent and the Patient hugged and kissed one another in an intimate manner;
(vi)the Respondent allowed the Patient to masturbate while he watched her doing so;
(vii)the Respondent allowed the Patient to rub her vulva against his leg;
(viii)the Respondent fondled the Patient's breasts;
(ix)the Respondent fondled the Patient's genitals;
(x)the Respondent allowed the Patient to fondle his genitals;
(xi)the Respondent photographed the Patient;
(xii)the Respondent allowed the Patient to photograph him; and
(xiii)on the floor of his consulting room, on multiple occasions, the Respondent performed cunnilingus on the Patient and allowed the Patient to perform fellatio on him and engaged in sexual intercourse with the Patient.

C.During the period from about 1 March 2013 until about 25 August 2014 the Respondent:
(i)accepted gifts from the Patient of ornaments and clothing, and gave the Patient gifts, including perfume;
(ii)drank alcohol with the Patient;
(iii)smoked marijuana in the company of the Patient;
(iv)on 9 July 2013 took the Patient to a restaurant for an evening meal;
(v)gave prescriptions for Cialis to the Patient and had the Patient obtain Cialis using the prescriptions and give the Cialis to him;
(vi)on or about 21 June 2013, 30 June 2013, 7 July 2013 and 21 April 2014 allowed the Patient to come into his home and at his home;
a.ate meals with the Patient which the Patient had prepared;
b.hugged, kissed and fondled the Patient in an intimate and sexual manner; and
c.on the night of 21-22 April 2014, in his bed, engaged in sexual intercourse with the Patient on two occasions and allowed the Patient to perform fellatio on him.

5.On multiple occasions between 30 July 2012 and 28 April 2014 the Respondent prescribed for the Patient Methylphenidate 10mg tablets (Ritalin) in the quantity of 100 tablets per prescription at dosages of 10mg, 20mg, 30mg and/or 40 mg per day (the Ritalin Prescriptions).
6.At no time during the period referred to in 5 was there any clinical indication for any of the Ritalin Prescriptions.
7.Alternatively to 6, the Respondent failed to record in his clinical notes any clinical indication for any or all of the Ritalin Prescriptions.
8.Alternatively to 6, on each or any of the dates that each of the Ritalin Prescriptions was given to the Patient, there was no clinical indication for the prescription of Ritalin in dosages as high as was prescribed, being 10mg, 20mg, 30mg and/or 40mg per day.
9.By reason of the Respondent prescribing to the Patient Ritalin in the dosages referred to in 5 and 8, or alternatively in any of those dosages, the Patient suffered from adverse effects of Ritalin including a constant tremor, heart palpitations and insomnia, and she became disinhibited and experienced a markedly elevated libido.
10.Despite observing and becoming aware of the effects of Ritalin on the Patient referred to in 9 the Respondent did not cease providing the Ritalin prescriptions to the Patient nor did he take any adequate steps to reduce the dosages of Ritalin he prescribed.
11.By reason of the Respondent's conduct referred to in 5 and/or 10, the Patient became addicted to Ritalin.
12.After the Consultations ceased the Patient was hospitalised under the care of another psychiatrist.
13.During the period of hospitalisation referred to in 12 the Patient had to be weaned from Ritalin.
14.During the period referred to in 3 the Respondent failed to make and keep adequate clinical notes and failed to practice in accordance with sections 8.4.1, 8.4.4 and 8.4.5 of the Code of Conduct in that he:
14.1failed to keep legible records;
14.2failed to keep records which recorded clinical findings including diagnoses;
14.3failed to record all of the medication that was prescribed by him for the Patient;
14.4failed to record the clinical indications for the medication he prescribed for the Patient;
14.5by reason of the matters referred to in 14.1 - 14.4, failed to keep records sufficient to facilitate continuity of care of the Patient;
14.6failed to make medical records contemporaneously during each of the Consultations or as soon as possible after each of the Consultations; and
14.7in respect of 8 of the Consultations, made no clinical notes at all.

Particulars
A.Consultations in respect of which the Practitioner made no clinical notes occurred on:
(i)19 April 2013;
(ii)5 July 2013;
(iii)9 August 2013
(iv)18 August 2013;
(v)3 February 2014;
(vi)26 May 2014;
(vii)16 June 2014; and
(viii)15 August 2014.

15.Further or alternatively to 14 the Respondent:
15.1wrote notes about the Patient in which he deliberately included false information about the Patient and the psychiatric treatment provided to her by the Respondent, which information the Respondent included in an effort to support the Respondent's defence to allegations the subject of these proceedings, discredit the Patient and/or to tend to show that the Patient's evidence about his conduct in relation to the Patient was unreliable; and
15.2falsely represented to the Applicant that those notes were true and accurate clinical notes about the Patient.

Particulars of false information contained in the Respondent's notes
A.The Respondent made notes which falsely stated:
(i)that the Patient did not want him to report to her general practitioner, when in fact the Patient had never asked the Respondent not to do so;
(ii)that the Patient did not want him to write clinical notes during consultations, when in fact the Patient had never objected to him doing so;
(iii)that the Patient wanted to monitor the clinical notes he wrote, when in fact the Patient had never done so;
(iv)that the Patient was at his home for only 15-20 minutes on 21 June 2013 and that he refused to show her around his property, when in fact the Respondent had:
a.shown the Patient around his property on that date;
b.eaten a meal with the Patient;
c.lit candles for the dining table at which they ate;
d.entertained the Patient until about 11.30pm that night;
e.engaged in intimate hugging and kissing with the Patient; and
f.given the Patient roses from his garden;

(v)that the Patient came to his home without invitation on 30 June 2013 and that he expressed anger towards her for coming to his home on that date, when in fact:
a.the Patient had come to his home by arrangement made with him during the Consultation on 28 June 2013;
b.the Respondent and the Patient had eaten lunch together;
c.the Respondent had allowed the Patient to stay at his home throughout the afternoon and evening, during which time they moved some of his artwork together and the Patient undertook ironing and mending of the Respondent's clothes;
d.the Respondent and the Patient had eaten an evening meal and had drunk wine together; and
e.the Respondent had lit candles for the dining table at which they ate;

(vi)that the Patient came to his home without invitation on 7 July 2013, when in fact:
a.the Patient had come to his house on that date by arrangement for the purpose of delivering his ironed shirts and to bring him dinner;
b.the Patient and the Respondent ate a meal that the Patient had brought to the Respondent's home;
c.the Patient and the Respondent engaged in intimate kissing; and
d.the Patient and the Respondent made arrangements to go out together for dinner on 9 July 2013;

(vii)implying that that the Patient may have taken Ritalin tablets in dosages greater than he had prescribed, when there was no basis for that implication;
(viii)that the Patient told him she had engaged in 'lesbian contact' which her late husband had observed, and that her late husband was a 'voyeur', when in fact the Patient had not made any statements to him to that effect;
(ix)that the Respondent's 'partner' had sent text messages from his mobile phone to the Patient without his knowledge, when in fact the Respondent had sent messages to the Patient from his telephone which falsely purported to be messages to the Patient from the Respondent's former wife;
(x)that the Patient was 'well-off' as a result of drug dealing, when the Patient had never provided such information to the Respondent;
(xi)that the Patient was 'avoidant of discussion' about her 'upbringing or extended family' when there was no basis for such a statement;
(xii)that the Patient 'invaded' his home on 21 April 2014 and that she left his home on the same date in a taxi, when in fact:
a.the Respondent invited the Patient into his home on that date after she had arrived at his property concerned about the operation of her car;
b.the Respondent had drunk wine with the Patient;
c.the Respondent and the Patient had eaten a meal together;
d.the Respondent had lit candles for the dining table at which they ate;
e.the Patient had spent the night at the Respondent's home, the Respondent and the Patient had engaged in sexual intercourse on two occasions that night and the Patient had performed fellatio on the Respondent; and
f.the Respondent had driven the Patient to an auto-electrician's workshop the following morning;

(xiii)that the Patient intruded upon him at his home on 5 May 2014, when in fact the Patient had not done so;
(xiv)that he had instituted a trial of Risperidone for the Patient on 12 May 2014, when in fact he had not done so;
(xv)that he planned to erect gates at his home for the purpose of keeping the Patient out of his property and that, when told of this the Patient said 'That will not keep me out', when in fact he did not erect or intend to erect gates for that purpose and when in fact the Patient had not made any such statement to him;
(xvi)that the Patient did not want the Respondent to talk to her general practitioner, when in fact the Patient had never objected to him doing so; and
(xvii)that the Patient attended his rooms at Western Psychiatry without an appointment, when in fact the Respondent had asked the Patient both verbally and by a text message or text messages to come to those rooms to see him.

16.On or about 25 September 2014 the Respondent sent a letter dated 25 September 2014 to the psychiatrist Dr Geetha Menon (the Referral Letter) in which he stated, inter alia, that:
16.1he had prescribed the anti-psychotic medication Risperidone for the Patient; and
16.2the Patient's 'current medication' was:
16.2.1Ritalin 15mg daily; and
16.2.2Escitalopram 20mg daily.

17.The statements referred to in 16 were false, and the Respondent deliberately included those statements in the Referral Letter when, because of the matters particularised in A-K below, he knew that they were false and that they would mislead Dr Menon as to the medication that the Patient was taking and would be likely to compromise her ability to properly care for the Patient.

Particulars
A.The Respondent had never prescribed Risperidone for the Patient.
B.The Respondent had not prescribed Escitalopram for the Patient since 19 August 2013.
C.As at the date of the Referral Letter the most recent Ritalin prescription that the Respondent had given to the Patient:
(i)was dated 28 April 2014;
(ii)prescribed 100 Ritalin 10mg tablets at a dosage of 4 tablets (40mg) per day; and
(iii)gave 5 repeats.

D.The Respondent had not at any time after giving the prescription referred to in C advised the Patient to take 15mg of Ritalin per day rather than 40mg per day as he had prescribed.
E.On 7 July 2014 the Respondent had given the Patient two prescriptions for 50 Alprazolam 1mg, each:
(i)dated 7 July 2014;
(ii)giving 2 repeats; and
(iii)at a dosage of 2 tablets per day.

F.On 25 August 2014 the Respondent had given the Patient a prescription for 50 Alprazolam 1mg, with 1 repeat, to be taken at a dosage of 2 tablets per day.

G.The Respondent had not, at any time after giving the Patient the prescriptions referred to in E and F, advised the Patient to cease taking Alprazolam at the dosage prescribed or at all.
H.On 15 August 2014 the Respondent had given the Patient a prescription for Diazepam 5mg, 50 tablets to be taken at a dosage of 1 tablet per day.
I.The Respondent had not, at any time after giving the Patient the prescription referred to in H, advised the Patient to cease taking Diazepam at the dosage prescribed or at all.
J.On 25 August 2014 the Respondent had given the Patient a prescription for 50 Lorazepam 1mg tablets at a dosage of 2 tablets per day.
K.By reason of the matters referred to in B-J, the Patient's 'current medication' as at the date of the Referral Letter, to the knowledge of the Respondent, included:
(i)Ritalin 40mg per day;
(ii)Alprazolam 2mg per day;
(iii)Diazapam 5mg per day; and
(iv)Lorazepam 2 mg per day,
and did not include Escitalopram.

18.On or about 4 November 2014 the Australian Health Practitioner Regulation Agency (AHPRA) informed the Respondent (inter alia) that it had received a notification concerning his conduct with respect to the Patient.
19.On occasions during 2016 the Respondent engaged in contact with the Patient.

Particulars of Contact with the Patient
A.On or about 3 February 2016 the Respondent spoke to the Patient in the car park of OSH Group Pty Ltd, Wembley (the OSH car park).
B.On an occasion on a date between 3 February 2016 and 16 March 2016, the Respondent:
(i)spoke to the Patient in the OSH car park and asked the Patient to meet him at the Dome Café in Rokeby Road, Subiaco;
(ii)later met with the Patient at the Dome Café in Rokeby Road, Subiaco; and
(iii)later walked with the Patient to a location in Subiaco where his car was parked and spoke to the Patient on the way to his car and while in the vicinity of his parked car.

C.On 16 March 2016 the Respondent:
(i)contacted the Patient by telephone and arranged with the Patient to meet him at the Dome Café in Subiaco;
(ii)later spoke to the Patient by telephone and agreed to meet the Patient at the Witch's Cauldron Restaurant in Rokeby Road, Subiaco; and
(iii)later met the Patient at the Witch's Cauldron restaurant in Subiaco.

D.In or about August 2016 the Respondent spoke to the Patient at a shopping centre in Glendalough and later at a café at that shopping centre.

20.On all, or alternatively some of the occasions referred to in 19, the Respondent sought or attempted to encourage, persuade and/or influence the Patient:
20.1not to make or give a witness statement in relation to the allegations the subject of these proceedings to AHPRA or the Applicant's lawyers;
20.2not to co-operate with AHPRA or the Applicant's lawyers by providing further information about his relationship with the Patient; and/or
20.3not to sign a witness statement in relation to these proceedings.

Particulars
A.The Respondent:
(i)said to the Patient, in effect, that without the Patient's evidence there would be no provable case against him or alternatively that there would be a less serious case against him;
(ii)said to the Patient that she was not obliged to give evidence; and
(iii)said to the Patient, in effect, that if she refused to give evidence she would not be summoned or compelled by any legal process to do so.

B.When the Respondent knew, as a result of the Patient's conduct towards him during the contact referred to in paragraph A of the particulars to 19, that the Patient desired an intimate and sexual relationship with him and/or that she wished him to have a good opinion of her;
(i)sought to make the Patient feel guilt and shame by:
a.saying to the Patient, in effect, that proceedings commenced against him by the Applicant would have the result that he would be prevented from practising medicine or psychiatry; and by
b.telling the Patient the financial cost to him of defending such proceedings;

(ii)kissed the Patient intimately, and held her hands;
(iii)said to the Patient that he missed her; and
(iv)said to the patient that his heart was 'going a million miles an hour at the sight of her'.

C.When the Respondent knew or ought to have known that it may be harmful to the Patient to undermine the therapeutic relationships she had with other psychiatrists who had treated her or were continuing to treat her, said to the patient that she should not trust her treating psychiatrists.

21.As at 19 April 2017, pursuant to an order of the Tribunal, the Applicant was required to file statements of any witnesses on whose evidence it intended to rely by 2 May 2017.
22.On 19 April 2017 the Respondent met with the Patient for a period of approximately one hour at the Dome Café in Osborne Park (Meeting).
23.During the Meeting the Respondent attempted to encourage, persuade and influence the Patient to:
23.1falsely state to the Applicant, AHPRA and/or the Applicant's lawyers, through a lawyer, that the Patient's previous statements made to officers of AHPRA and/or to the Applicant's lawyers were inaccurate and unreliable, when he knew that such a statement would be false;
23.2falsely state to the Applicant, AHPRA and/or the Applicant's lawyers that the Patient was having suicidal thoughts in relation to giving evidence in these proceedings when he knew that such a statement would be false, or alternatively had no reason to believe it to be true, with the intention of causing the Applicant, and/or the Tribunal not to take action to compel the Patient to give evidence in these proceedings;
23.3falsely state to a psychiatrist that she had suicidal thoughts in relation to giving evidence in these proceedings in order to have that psychiatrist report to a lawyer (to be engaged) to that effect;
23.4instruct the lawyer (to be engaged) to rely on the false psychiatric evidence referred to in 23.3 in support of the false statement referred to in 23.2; and
23.5if the Patient was required to give evidence in the Tribunal by summons, to give evidence to the effect that her previous statements made to officers of AHPRA and/or to the Applicant's lawyers in respect of the close, personal, intimate and sexual relationship between the Patient and the Respondent were inaccurate and unreliable when he knew that such evidence would be false.

Particulars
A.The Respondent:
(i)repeatedly outlined to the Patient his proposal to the effect of paragraphs 23.1-23.5 (the Proposal);
(ii)offered to seek out a lawyer and a psychiatrist who the Patient could consult for the purpose of implementing the Proposal; and
(iii)asked the Patient if she would agree to the Proposal.

B.Knowing that the Patient desired to be in an intimate and sexual relationship with him and/or wished him to have a good opinion of her, the Respondent:
(i)represented to the Patient that if she co-operated with him and successfully convinced the Applicant and/or the Tribunal that her allegations against him were inaccurate and unreliable, she would have an ongoing relationship with him which would involve an overseas holiday; and
(ii)sought to make the Patient feel guilt and shame for giving a statement of her evidence or otherwise co-operating with AHPRA and/or the Applicant's lawyers by asserting that if findings were made against him based on the Patient's evidence he would have to leave Perth, he would never again practice medicine, he would lose his house and all of his assets, he would be bankrupt and he would be unable to afford necessary dental treatment.

C.When he knew or ought to have known that it may be harmful to the Patient to undermine the therapeutic relationships she had with other psychiatrists who had treated her or were continuing to treat her, the Respondent disparaged a psychiatrist who had treated the Patient immediately following the cessation of the Consultations and another who had been continuously involved in the Patient's care since the cessation of the Consultations by;
(i)asserting to the Patient that those psychiatrists had maliciously sought to cause the Respondent harm by making a notification to AHPRA and by encouraging the Patient to give a statement to AHPRA and/or the Applicant's lawyers; and
(ii)asserting to the Patient that those psychiatrists cared more about harming the Respondent than helping the Patient.

D.When he knew that it may be harmful to the Patient to undermine the therapeutic relationships she had with other psychiatrists who had treated her or were continuing to treat her, said to the Patient in effect that a psychiatrist who the Patient was consulting periodically was not providing useful therapy to the Patient.

24.On 26 April 2017 the Respondent made attempts to contact the Patient by telephone, one of which was successful, and during that telephone conversation again sought to encourage, persuade and influence the Patient not to further co-operate with AHPRA or the Applicant's lawyers in respect of these proceedings and to refuse to make, give or sign a further witness statement in these proceedings.
25.The Respondent's conduct referred to in paragraphs 19, 20, 22, 23 and/or 24 constituted offences under the Criminal Code (Code) of:
25.1attempting to fabricate evidence (an offence under s129 of the Code);
25.2attempting to corrupt a witness (an offence under s130 of the Code);
25.3attempting to deceive a witness with intent to affect the testimony of the witness (an offence under s131 of the Code);
25.4attempting to conspire to pervert the course of justice (an offence under s135 of the Code); and/or
25.5attempting to pervert the course of justice (an offence under s143 of the Code).

26.The Respondent has behaved in a way that constitutes professional misconduct for the purposes of section 193(1)(a)(i) of the National Law or alternatively constitutes unprofessional conduct and/or unsatisfactory professional performance for the purposes of the National Law in that the Respondent's conduct referred to in 3 to 25 above was substantially below the conduct reasonably expected of a specialist psychiatrist and was inconsistent with the practitioner being a fit and proper person to hold registration in the medical profession.

Proceedings in the Tribunal

Following the filing of the Board's application on 28 October 2016, the Tribunal ordered that the Practitioner file a response. The matter was then referred to mediation.
Mediation first took place on 6 February 2017 and was adjourned to 12 April 2017. However, the adjourned date was vacated and mediation did not achieve a resolution to the matter. As mentioned earlier in these reasons, on 30 May 2017 the Board then amended its application so that the Substituted Grounds stood as the grounds of the application.
The Practitioner filed a response to the amended application on 20 July 2017.
The Tribunal listed the matter for a final hearing to commence on 21 August 2017, but on 17 August 2017 the Practitioner was charged with attempting 'to induce a person, namely [Patient] who was to be called as a witness in a judicial proceeding, to give false testimony or to withhold true testimony' under s 130(2) of the Criminal Code (WA), the proceeding in question being VR 182 of 2016.
With the consent of the parties, the date for the final hearing in the Tribunal was vacated. The Practitioner stood trial in the District Court of Western Australia in October 2018, was convicted of attempting to pervert the course of justice under s 143 of the Criminal Code and on 22 November 2018 he was sentenced to a term of imprisonment of 12 months commencing on that date.
The matter in due course came back before the Tribunal and was listed for a final hearing to commence on 25 June 2019 for a duration of 7 days.
In the meantime, the Board filed a further application on 12 February 2019 (VR 17 of 2019), alleging that there is proper cause for further disciplinary action against the Practitioner, this time on the grounds of the Practitioner's criminal conviction. The Tribunal on 21 February 2019 ordered that VR 182 of 2016 and VR 17 of 2019 be heard together but remain as separate proceedings.
On 26 March 2019, further programming orders were made. The June 2019 hearing dates were vacated and orders were made for the filing of submissions. Also, under s 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal ordered that the Patient's name must not be published.
On 3 May 2019, the matter was listed for a final hearing for a duration of 7 days commencing on 25 November 2019.
The Practitioner subsequently informed the Tribunal that he intended to seek leave to appeal his criminal conviction and applied for an adjournment of the proceedings in the Tribunal. The Tribunal partially allowed that application. On 16 October 2019, the Tribunal ordered that VR 17 of 2019 would not be heard at the same time as VR 182 of 2016 and that at the final hearing only VR 182 of 2016 would be heard. VR 17 of 2019 was adjourned.

Materials filed with the Tribunal in anticipation of the hearing

In anticipation of the final hearing, the Board filed its book of documents in three volumes (Board's book) on 16 May 2017. The Board then filed a supplementary book of documents on 13 February 2019 (Board's supplementary book). The Board also filed further supplementary books of documents on respectively 12 November 2019, 20 November 2019 and 22 November 2019.
The Patient provided a witness statement dated 15 May 2017 (PWS 15.5.17). She then gave a supplementary witness statement on 21 July 2017 (PWS 21.7.17) 'to correct errors in my first witness statement'.
The Practitioner gave a witness statement on 1 August 2017 and the Patient then gave a further witness statement on 15 August 2017 'responsive to the witness statement of [the Practitioner]'.
The Patient then gave a further supplementary witness statement on 18 August 2019 (PWS 18.8.19).
The Board also filed witness statements from, respectively:
1)Dr Caroline Elizabeth Jane Crabb dated 8 May 2017;
2)Dr Martin Dennis Chapman dated 15 May 2017;
3)Dr Richard James Magtengaard dated 15 May 2017;
4)Dr Kenneth Gordon David Orr dated 28 July 2017;
5)Dr David Malkin dated 24 April 2017;
6)Margaret Anne Wayland-Peck dated 4 May 2017;
7)Anita Louise Mulqueen dated 10 May 2017;
8)Dr Catharine Diana Barber dated 1 May 2017;
9)Jenny Liu dated 5 May 2017;
10)Dale Nelligan dated 5 May 2017; and
11)Morgan Shacklady signed in May 2017.
The Practitioner, in addition to his own witness statement, filed witness statements from:
1)Deanna Madelina Spackman dated 24 July 2017;
2)Dr David Cockram dated 28 July 2017;
3)Leigh McCarthy dated 27 July 2017;
4)Patrick McCarthy dated 27 July 2017;
5)Dr Slav Kostov dated 27 July 2017; and
6)Hannah Carlton signed in July 2017.
In addition, expert witness reports were filed by the Practitioner from Clinical Associate Professor David Horgan dated 9 February 2017 and by the Board from Dr Jonathan Phillips dated 3 February 2016, 23 May 2016 and 26 July 2017 respectively.

Practitioner's subsequent election to not participate in the proceeding

On 22 November 2019, the Practitioner's solicitor's wrote to the Tribunal, informing the Tribunal that they 'are instructed that our client will not be giving evidence, relying on any witness statements, calling any witnesses, cross-examining any of the [Board's] witnesses or making any submissions and will adopt a neutral position in relation to any questions the Tribunal is called upon to answer at the forthcoming hearing'.
The letter went on to provide that the Practitioner 'will attend the duration of the hearing as in effect a passive observer and will not make any submissions or seek to be heard any respect (sic) of any matter before the Tribunal'.

Orders made on 25 November 2019

The final hearing of VR 182 of 2016 took place on 25 November 2019. The Practitioner, through counsel, reiterated that he 'does not propose to participate in any way in the proceedings', but that he makes no admissions in relation to any of the allegations against him; ts 4, 25 November 2019.
The Tribunal, being satisfied that the Practitioner understands the nature of the assertions made against him and the legal implications of those assertions and that he has been given an opportunity to call or give evidence, to examine, cross-examine or re-examine witnesses and to be heard or otherwise have his submissions considered, then made certain orders proposed by the Board and not objected to by the Practitioner, including the following:
1)With the consent of the parties, the statements of evidence of the witnesses for the [Board] are, without admission on the part of the [Practitioner], to be received into evidence save to the extent that they are statements in reply to any of the witness statements filed by the [Practitioner].
2)The [Practitioner's] witness statements are not admitted in these proceedings.
3)The following bundles of documents (including audio and visual recordings) are admitted:
a)[the Board's book];
b)[the Board's Supplementary book];
c)[the Board's] Further Supplementary Book of Documents dated 20 November 2019; and
d)[the Board's] Further Supplementary Book of Documents dated 22 November 2019.
On 3 December 2019, the Board filed its outline of closing submissions and on 4 December 2019 the Tribunal ordered that the matter is to be determined entirely on the documents pursuant to s 60(2) of the SAT Act.

Onus and standard of proof

The standard of proof which the Board must meet in proving its case is the civil standard, namely proof on the balance of probabilities. However, in determining whether on the evidence this standard has been satisfied, the Tribunal will recognise that '[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect inferences': Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) per Dixon J at [362].
As the High Court expressed the position in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the significance of Briginshaw is that the seriousness of the matter and of its consequences does not affect the standard of proof, but the strength of the evidence necessary to establish a fact required to meet that standard on the balance of probabilities may vary according to the nature of what it is sought to prove.
Allegations of unprofessional conduct are undoubtedly serious, and it is therefore considered in proceedings such as these that the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts before being satisfied that an allegation has been made out.

The Tribunal's findings of fact

The witness statements

The Tribunal has received into evidence the witness statements tendered by the Board. The evidence of those witnesses is unchallenged by the Practitioner. There is nothing on the face of the witnesses' evidence which the Tribunal considers to be implausible, incredible or is otherwise unable to be accepted.

As mentioned, the Tribunal has also received three reports from the Board's expert witness, Dr Jonathan Phillips, dated respectively 3 February 2016 (JPR 3.2.16), 23 May 2016 (JPR 23.5.16) and 26 July 2017 (although this report on each page after the first page bears the date 12 May 2017) (JPR 26.7.17).
Dr Phillips has provided a Curriculum Vitae which the Tribunal accepts and regards as containing an accurate description of his qualifications and his field of expertise. Dr Phillips is an independent mental health consultant in his professional role as a psychiatrist. He is an Associate Professor at the University of New South Wales, a Clinical Associate Professor at University of Adelaide, an Associate Professor at James Cook University, a member of the Forensic Mental Health Network Board, a Fellow of and former President of the Royal Australian and New Zealand College of Psychiatrists (RANZCP). He has been Chair of the Psychiatric Division of the Medical Services Committee of New South Wales and has been involved with the preparation and delivery of the Masters Programme in Forensic Mental Health at the University of New South Wales. Dr Phillips at para 76 of JPR 26.7.17 says, and we accept, that he has lengthy experience as a consultant psychiatrist and has 'knowledge of the standard of care expected by a competent specialist psychiatrist'. He was 'involved in the development of the RANZCP Code of Ethics'.
The Tribunal considers that Dr Phillips' field of knowledge in the practice of psychiatry is relevant in this proceeding and that he is appropriately qualified to give expert evidence in this matter.
JPR 3.2.16 was provided to the Board prior to the Board's application to the Tribunal. JPR 23.5.16 is a short report which Dr Phillips says should be read with JPR 3.2.16. It contains a correction to some of what he said in JPR 3.2.16 and provides an amendment to one of his conclusions in JPR 3.2.16.
JPR 26.7.17 was prepared by Dr Phillips following the provision to him by the Board of a number of further documents. He says at para 43 that this report should be considered together with JPR 3.2.16 and JPR 23.5.16.
JPR 26.7.17 was prepared in anticipation of Dr Phillips' appearance and his expected cross-examination at the final hearing of this matter.

The allegations

Broadly, the Board's allegations against the Practitioner fall under five general headings, namely that:
1)the Practitioner failed to maintain professional boundaries;
2)the Practitioner prescribed Ritalin to the Patient in the absence of any clinical indication;
3)the Practitioner failed to make and keep adequate clinical notes, including an allegation that the provision of notes to the Board by the Practitioner included false information;
4)the Practitioner provided false information in a referral letter; and
5)the Practitioner attempted to persuade the Patient not to cooperate with the Board's enquiries.
We will deal with the allegations in that order.

Failure to maintain proper boundaries

The contentions at paras 1 and 2 of the Substituted Grounds describing the Board and its functions and the Practitioner regarding his practice as a psychiatrist respectively are not in dispute and the Tribunal so finds.
Similarly, the contention in paragraph 3 of the Board's Substituted Grounds that the consultations which are set out in that paragraph (Consultations) took place is also an admitted fact; Board's book pages 382-398; Board's book pages 400-402; Practitioner's Response dated 20 July 2017.
The date of the first Consultation is consistent with the evidence of Dr Phillips, who says (JPR 26.7.17 at paras 44 and 45) that the Patient, suffering grief and depression following the death of her husband on 8 September 2011, had contact with the Practitioner for the first time on 15 June 2012.
The Tribunal finds that all of the Consultations on each of the dates specified as set out in paragraph 3 of the Board's Substituted Grounds in fact took place.
However, the contention in para 4A of the Substituted Grounds that the Consultations were more frequent than was necessary for the proper treatment of any psychiatric illness from which the Patient suffered is not supported by any evidence before the Tribunal and has not been established.
The contention in para 4B (i) of the Substituted Grounds is that the Practitioner at some or all of the Consultations after 1 March 2013 allowed the Patient to groom him by manicuring his fingernails, massaging his hands, arms, chest and neck with cream, trimming his nose and ear hair and filing his toenails.
It is the evidence of the Patient (PWS 15.5.17 at paras 36 and 39) that the Patient 'started bringing my manicure set to the consultations'. She says that the Practitioner would put his hands on his knees and she would manicure his nails and rub cream into his hands. Sometimes, she says, she would rub his arms and massage his neck and chest which, to her, 'was a very intimate thing to do'. The Patient says that from about March 2013 this would occur at each consultation. The Patient makes other references to grooming and manicures in PWS 15.5.17 at paras 56 and 61).
The Patient's evidence in this regard is uncontradicted and we find that these events did in fact occur.
The contention in para 4B (ii) of the Substituted Grounds is that at some or all of the Consultations the Practitioner allowed the Patient to measure the Practitioner's blood pressure.
It is the uncontradicted evidence of the Patient (PWS 15.5.17 at para 39) that 'I would take [the Practitioner's] blood pressure with the blood pressure machine that I used to use on [Patient's late husband]'. The Tribunal finds as a fact that this occurred on at least one occasion.
The contention in para 4B (iii) of the Substituted Grounds is that the Practitioner at some or all of the Consultations allowed the Patient to sew buttons on his shirts.
It is the uncontradicted evidence of the Patient (PWS 15.5.17 at para 39) that 'if [the Practitioner] was missing a button from his shirt I would sew it on'. The Tribunal accordingly makes the finding of fact that on at least one of the consultations the Practitioner allowed the Patient to sew a button on his shirt.
The contention in para 4B (iv) of the Substituted Grounds is that the Practitioner and the Patient at some or all of the Consultations ate and drank food and beverages which the Patient had brought to the Consultations.
It is the uncontradicted evidence of the Patient (PWS 15.5.17 at para 43 that she 'would bring nibbles like cold pizza or other savouries to the consultations as well as serviettes. Sometimes I would take a Crown Lager for [the Practitioner] and I would bring a small bottle of wine for myself'. The Patient also says (PWS 15.5.17 at paras 44 and 45)that the Consultations would begin by the Patient and the Practitioner having tea together and she also says that her teacup was kept in the bottom drawer of the Practitioner's desk. She describes it as Royal Doulton with a distinctive green and white pattern on it. The Tribunal on this evidence makes those findings of fact.
The contention in para 4B (v) of the Substituted Grounds is that the Practitioner at some or all of the Consultations allowed the Patient to hug and kiss the Practitioner in an intimate manner and reciprocated by hugging and kissing the Patient in the same manner.
It is the evidence of the Patient (PWS 15.5.17 at para 35) that at the end of one of the Consultations the Practitioner 'walked me to the door, stood at the door and put his arms out to indicate that he wanted to hug me and we hugged. After that consultation, we hugged at the end of subsequent consultations. At first the hugs were short, but they gradually became longer'.
The Patient says that at the end of one of the Consultations, the Practitioner kissed her as well as hugging her. She says that this was 'a peck on the cheek', but at a subsequent Consultation the Practitioner kissed her on the mouth and the Patient describes this as an intimate, prolonged kiss; PWS 15.5.17 paras 37 and 38. At PWS 15.5.17 at para 40, the Patient says that '[s]ometimes [the Practitioner] held my hands. He moved his chair close to mine and we would kiss while sitting in the chairs'.
The Patient's evidence about these events is uncontradicted and the Tribunal finds that these events did in fact occur.
The contention in para 4B (vi) of the Substituted Grounds is that the Practitioner at some or all of the Consultations allowed the Patient to masturbate while he watched her doing so.
It is the evidence of the Patient (PWS 15.5.17 at para 41) that '[s]ometimes [the Practitioner] would sit in the low, brown leather chair and I would sit on his chair. I would put my legs on either side of the brown chair and masturbate while [the Practitioner] watched'. The Tribunal accepts this uncontradicted evidence and makes this finding of fact.
The contention in para 4B (vii) of the Substituted Grounds is that the Practitioner at some or all of the Consultations allowed the Patient to rub her vulva against his leg.
It is the uncontradicted evidence of the Patient (PWS 15.5.17 at para 41) that '[o]ften I would sit on [the Practitioner's] knee and stimulate myself on his leg until I had an orgasm'. The Tribunal accepts this evidence and finds in fact that this event occurred.
The contention in para 4B (viii) of the Substituted Grounds is that the Practitioner at some or all of the Consultations fondled the Patient's breasts.
The uncontradicted evidence of the Patient (PWS 15.5.17 at para 54) is that '[s]ometimes during consultations [the Practitioner] would take my bra off, I would lift up my top and he would kiss my breasts'. The Tribunal accepts this evidence and finds that this occurred.
The contention in para 4B (x) of the Substituted Grounds is that the Practitioner at some or all of the Consultations allowed the Patient to fondle the Practitioner's genitals.
It is the uncontradicted evidence of the Patient (PWS 15.5.17 at para 55) that '[the Practitioner] would sometimes say to me "I've got a hard on". He would thrust himself at me. I would touch his penis'. The Tribunal accepts this evidence and makes this finding of fact.
The contention in para 4B (xi) of the Substituted Grounds is that the Practitioner at some or all of the Consultations photographed the Patient.
It is the evidence of the Patient (PWS 15.5.17 at para 57) that '[o]nce [the Practitioner] took a photo of me when I was posing in his chair'. The Tribunal accepts this uncontradicted evidence and makes this finding of fact.
The contention at para 4B (xii) of the Substituted Grounds, is that the Practitioner at some or all of the Consultations allowed the Patient to photograph the Practitioner.
It is the uncontradicted evidence of the Patient (PWS 15.5.17 at para 100) that 'I took a photo of a woman and lantern on [the Practitioner's] wall and of [the Practitioner] sitting at the table working on his computer'. This was at the Practitioner's home on Sunday 30 June 2013; PWS 15.5.17 at para 97. The Tribunal accepts this evidence and finds that this in fact occurred.
The contention in para 4B (xiii) of the Substituted Grounds is that the Practitioner at some or all of the Consultations on multiple occasions performed cunnilingus on the Patient, allowed her to perform fellatio on him and engaged in sexual intercourse with the Patient.
The uncontradicted evidence of the Patient (PWS 15.5.17 at para 56) is that '[w]e would kiss and fondle one another. Sometimes our sexual activity would stop at that, but sometimes it progressed to oral sex and sexual intercourse'. The Tribunal accepts this evidence and makes this finding of fact.
The contention in para 4C (i) of the Substituted Grounds is that between about 1 March 2013 until about 25 August 2014, the Practitioner accepted gifts from the Patient of ornaments and clothing and gave the Patient gifts, including perfume.
It is the uncontradicted evidence of the Patient (PWS 15.5.17 at para 70) that '[the Practitioner] accepted my gifts of the terracotta horse and warrior, sweaters and scarves at my appointment with him on Friday 21 June 2013. He was delighted with the gifts'. The Patient also gives evidence that in August 2013 'I bought three more sweaters and 12 Stewart handkerchiefs for [the Practitioner]'; PWS 15.5.17 at para 155. In PWS 15.5.17 at para 189, the Patient says that on 16 February 2014 'I gave [the Practitioner] a tie that I had purchased for him from Parkers. It was his birthday present. He accepted it from me and seemed to love it'. In PWS 15.5.17 at para 222, the Patient says that the Practitioner 'gave me a gift of an Avante silver teapot and some Poeme perfume'.
Based on this evidence, the Tribunal makes those findings of fact.
The contention in para 4C (ii) of the Substituted Grounds is that between about 1 March 2013 until about 25 August 2014, the Practitioner drank alcohol with the Patient. This is admitted by the Practitioner and the Tribunal makes that finding of fact.
The contention in para 4C (iii) of the Substituted Grounds is that between about 1 March 2013 until about 25 August 2014, the Practitioner smoked marijuana in the company of the Patient.
It is the uncontradicted evidence of the Patient (PWS 15.5.17 at para 99) that on 30 June 2013, at the Practitioner's home and while the Practitioner was writing a report, the Practitioner 'smoked two joints of marijuana while writing the report and he joked that [the nurse] would be getting a good report from him'. Based on this evidence, the Tribunal makes that finding of fact.
The contention in para 4C (iv) of the Substituted Grounds is that on 9 July 2013, the Practitioner took the Patient to a restaurant for an evening meal. The Practitioner admits this allegation. There is a copy of the booking at Bistro Felix at page 219 of the Board's book and a copy of the receipt for the meal is at page 218 of the Board's book. The meal on the face of the receipt comprised three courses and included alcohol. The total cost of the meal was $208.70, paid for in cash. The Tribunal finds that this event did in fact occur.
The contention in para 4C (v) of the Substituted Grounds is that between about 1 March 2013 until about 25 August 2014, the Practitioner gave prescriptions for Cialis to the Patient and had the Patient obtain Cialis using the prescriptions and give the Cialis to the Practitioner.
The prescription record at page 693 of the Board's book supports the allegation that the Patient filled a prescription in her name for these tablets written by the Practitioner. The Tribunal makes this finding of fact. It is the uncontradicted evidence of the Patient that the she gave those tablets to the Practitioner (PWS 15.5.17 at para 397) and the Tribunal also makes this finding of fact.
The contention in para 4C (vi) of the Substituted Grounds is that on or about 21 June 2013, 30 June 2013, 7 July 2013 and 21 April 2014, the Practitioner allowed the Patient to come into his home and at his home ate meals with the Patient which the Patient had prepared, he hugged, kissed and fondled the Patient in an intimate and sexual manner and, on the night of 21-22 April 2014, in his bed, engaged in sexual intercourse with the Patient on two occasions and allowed the Patient to perform fellatio on him.
It is the uncontradicted evidence of the Patient (PWS 15.5.17 at paras 7279 and 81-82) that on 20 June 2013, the Patient went to the Practitioner's home in Helena Valley and the Practitioner invited her in and showed her around his house and garden. She says that she remained at his home for the evening. She says that they cooked dinner together, ate together and drank wine. She describes it as 'very romantic'. She says that they 'kissed passionately for a long time. I had orgasms while we were kissing. [The Practitioner] thrust his pelvis towards me'. She said that when they went outside as she was leaving at about 11:30 pm, the Practitioner picked her some roses from his garden. The Tribunal accepts this evidence and makes those findings of fact.

Prescribing Ritalin to the Patient in the absence of any clinical indication

The contention in para 5 of the Substituted Grounds is that on multiple occasions between 30 July 2012 and 28 April 2014 the Practitioner prescribed for the Patient Methylphenidate 10mg tablets (Ritalin) in the quantity of 100 tablets per prescription at dosages of 10mg, 20mg, 30mg and/or 40 mg per day (Ritalin Prescriptions).
The pharmaceutical records at pages 671-698 inclusive and 700 of the Board's book, which are unchallenged by the Practitioner, support the allegation that the Practitioner between 29 April 2013 and 28 April 2014 prescribed Ritalin for the Patient in the quantity and at the dosages described by the Board. The Tribunal makes that finding of fact.
The Board alleges at para 6 of the Substituted Grounds that at no time during that period was there any clinical indication for any of the Ritalin Prescriptions, or at least no clinical indication for the prescription of Ritalin in dosages as high as was prescribed, being 10mg, 20mg, 30mg and/or 40mg per day.
Dr Martin Dennis Chapman gave a witness statement dated 15 May 2017 which has been admitted into evidence (MCWS 15.5.17). Dr Chapman is a consultant psychiatrist at the Marian Centre in Wembley where the Practitioner had consulting rooms at the relevant time. Dr Chapman is a medical practitioner specialising in the area of psychiatry, is a clinician and provides outpatient and inpatient care to patients.
The Marian Centre is, according to its website, a 69 bed private acute mental health service delivering high quality care and positive patient outcomes. It is a private hospital owned by Healthe Care Australia.
Dr Chapman says that the Practitioner was a tenant, not an employee of the Marian Centre; MCWS 15.5.17 at para 17.
Dr Chapman says that he had a cordial, collegiate relationship with the Practitioner, although they have not been in communication in recent times; MCWS 15.5.17 at para 19.
Dr Chapman says that he first treated the Patient in 2002 and has been treating her on a regular basis since September 2014; MCWS 15.5.17 at para 21.
Dr Chapman describes the effect on the Patient of the death of her husband and her mother and the resultant depression and unresolved grief. He says that the Patient was referred to him and to the Practitioner by her general practitioner in May 2012. He says that arrangements were made for the Practitioner to see the Patient because of his own heavy workload; MCWS 15.5.17 at paras 38, 39, 40 and 41.
Dr Chapman says that it is his understanding that the Practitioner prescribed Ritalin for the Patient's depressive symptoms. He says that the Practitioner reports that the Patient was 'resistant to decreasing her medications'; MCWS 15.5.17 at para 52.
Dr Chapman says that he and Dr Caroline Crabb were the Patient's treating team from 16 September 2014; MCWS 15.5.17 at para 66. He says that he elected not to involve the Practitioner further with regard to the Patient's treatment and he says that he had no subsequent contact with the Practitioner about the Patient; MCWS 15.5.17 at para 68.
Dr Chapman says that, while '[t]here is local research indicating potential use for stimulant medications (such as Ritalin) in cases of treatment resistant depression', he is of the view that such stimulants 'could be considered if orthodox anti-depressant treatment had failed'. He does not consider that orthodox treatment protocols had been exhausted; MCWS 15.5.17 at paras 82 and 83.
Dr Chapman says that the Patient was withdrawn from Ritalin and she then demonstrated a 'significant improvement'; MCWS 15.5.17 at paras 84 and 86.
Dr Chapman's evidence is supported by Dr Phillips.

Dr Phillips (JPR 3.2.16 at para 48) 'single[s] out the use of methylphenidate (Ritalin) as prescribed by [the Practitioner] as being most unusual'. In the same paragraph, he goes on to say that '[o]n rare occasions it is possible to obtain Commonwealth and State approval for the use of methylphenidate in a person who suffers from a treatment resistant major depressive disorder'.
Dr Phillips says (JPR 3.2.16 at para 49) that '[a]s a general rule, a psychiatrist should not prescribe non-psychotropic agents for two reasons. First, non-psychotropic agents are beyond [the Practitioner's] area of expertise. Second, to prevent the patient placing him in the role of primary care doctor (and thus manipulating him)'.
Finally, in JPR 3.2.16 at para 50, Dr Phillips says that the Practitioner 'may have improperly prescribed methylphenidate for the patient, given that he had not offered evidence that she suffered at any time from ADHD or narcolepsy'.
Dr Phillips concludes (JPR 3.2.16 at para 59) that the Practitioner 'inappropriately prescribed methylphenidate for [the Patient] over the period June 2012-August 2014.
Dr Phillips considers that it is unlikely that the dose of methylphenidate had been excessive; JPR 26.7.17 at para 46. He says that it is his 'strong opinion that [the Practitioner] was not in a position to prescribe methylphenidate in any dose for [the Patient] … . On my analysis of the total amount of methylphenidate consumed by [the Patient] through the period when it was prescribed, the daily dose was not excessive'; JPR 26.7.17 para 75(3)).
The Tribunal accepts the evidence of Dr Chapman and Dr Phillips. In the absence of any challenge by the Practitioner to that evidence or contradictory evidence, the Tribunal finds that at no time between 30 July 2012 and 28 April 2014 was there any clinical indication for any of the Ritalin Prescriptions in any dose.
The contention in para 9 of the Substituted Grounds is that, by reason of the Practitioner prescribing Ritalin to the Patient in any dosage, the Patient suffered from adverse effects of Ritalin including a constant tremor, heart palpitations and insomnia, and she became disinhibited and experienced a markedly elevated libido.
It is the evidence of Dr Chapman (MCWS 15.5.17 at para 69) that the Patient told the treating team following her admission to the Marian Centre on 16 September 2014 that over 'a period of at least 12 months her energy had been increased, she had racing thoughts and felt compelled to write significant numbers of poems. She had not slept normally for months and only needed a few hours of sleep. [The Patient] also said that her libido was unusually high'. Dr Phillips (JPR 26.7.17 at para 47) says that he is satisfied that the Patient 'developed adverse symptoms probably related to her ongoing use of methylphenidate (excessive energy, reduction of sleep time, increased libido, and a desire to write poetry).
The Practitioner has not challenged this evidence or provided any contradictory evidence. The Tribunal accepts this evidence of Dr Phillips and Dr Chapman. The Tribunal finds that by reason of the Practitioner prescribing Ritalin to the Patient, the Patient became disinhibited, suffered from insomnia and experienced an elevated libido.
The contention in para 10 of the Substituted Grounds is that despite observing and becoming aware of the effects of Ritalin on the Patient, the Practitioner did not cease providing the Ritalin prescriptions to the Patient nor did he take any adequate steps to reduce the dosages of Ritalin he prescribed.
However, there is no evidence to support this contention and the Tribunal does not make this finding.
The contention in para 11 of the Substituted Grounds is that by reason of the Practitioner's conduct, the Patient became addicted to Ritalin.
The Board says that after the Consultations ceased the Patient was hospitalised under the care of another psychiatrist and during that period of hospitalisation the Patient had to be weaned from Ritalin; Substituted Grounds para 12.
It is the uncontested evidence of Dr Chapman that during the Patient's admission to the Marian Centre from September 2014 to November 2014, the Patient was withdrawn from Ritalin and other medications that she was taking. Dr Chapman says that the 'withdrawal process took considerable time'. He says that she 'experienced an episode of significantly low mood during the process, which may have reflected withdrawal from stimulant medication and/or her perceived rejection by [the Practitioner]'; MCWS 15.5.17 at paras 8488. The Tribunal accepts this evidence and makes these findings of fact.

Practitioner's failure to make and keep adequate clinical notes

The contention in para 14 of the Substituted Grounds is that during the period of the Consultations, the Practitioner failed to make and keep adequate clinical notes. The Board in the Substituted Grounds then sets out a series of specific breaches, including, first, a failure to keep legible records (para 14.1 of the Substituted Grounds) and, in respect of eight of the Consultations, made no clinical notes at all (para 14.7 of the Substituted Grounds). At para 14A of the Substituted Grounds, the Board specifies the particular consultations for which it alleges that there are no clinical notes at all.
The copies of the clinical notes in respect of the Consultations which the Practitioner provided to the Board appear in the Board's book at pages 403 to 448 inclusive. We agree with the opinion of Dr Phillips (JPR 3.2.16 at para 59 and JPR 26.7.17 at para 39) that these notes are illegible and unintelligible and we make that finding.
The Board has included in the Board's book at pages 449 to 474 inclusive, a typed transcript of those notes. It was provided to the Board by the Practitioner's then solicitors. The Board says that it disputes the authenticity of this typed transcript; Board's Outline of Closing Submissions dated 3 December 2019 at para 7.1. The Tribunal notes that the typed transcript of the clinical notes are unattributed and we do not give any weight to them.
We accept that the Board's book does not contain any copies of the notes in respect of the Consultations set out in para 14A of the Substituted Grounds but that does not lead the Tribunal to make a finding that the Practitioner did not make any clinical notes in respect of those Consultations. Keeping in mind the comments of Dixon J in Briginshaw, the Tribunal can only find, and the Tribunal so finds, that the Practitioner's clinical notes in respect of the Consultations other than the Consultations set out in paragraph 14A of the Substituted Grounds are mostly not legible and are entirely unintelligible.
It follows from the Tribunal's finding that the notes are illegible and unintelligible, that the Tribunal can make no findings in support of the Board's contentions at paras 14.2, 14.3 and 14.4 of the Substituted Grounds. Further, the Tribunal cannot make the finding sought at para 15 of the Substituted Grounds that the Practitioner wrote notes about the Patient in which he deliberately included false information about the Patient and the treatment provided to her by the Practitioner, including the particulars set out in para 15A of the Substituted Grounds.

Practitioner provided false information in a referral letter

In para 16 of the Substituted Grounds, the Board alleges that the Practitioner on 25 September 2014 sent a letter to Dr Geetha Menon in which he stated that:
a)he had prescribed the anti-psychotic medication Risperidone for the Patient; and
b)the Patient's 'current medication' was:
i)Ritalin 15mg daily; and
ii)Escitalopram 20mg daily.
The letter to Dr Menon appears at pages 235 to 238 of the Board's book and there is nothing before the Tribunal to suggest that the Practitioner disputes the existence or the contents of that letter. There is also nothing to persuade the Tribunal that the letter was not written by the Practitioner to Dr Menon and the Tribunal finds that the letter dated 25 September 2014 at pages 235 to 238 of the Board's book is a copy of the letter written by the Practitioner to Dr Menon as alleged.
The Board then at para 17 of the Substituted Grounds alleges that the statements in that letter were known to the Practitioner to be false and that they would mislead Dr Menon as to the medication that the Patient was then taking and would be likely to compromise her ability to properly care for the Patient.
Dr Phillips (JPR 26.7.17 at para 75(5)) says that Dr Menon had not been given correct information about the Patient's current medication and the Patient's part use of alprazolam. He also says that Dr Menon had not been told that the Practitioner had instructed the Patient to cease using benzodiazepine tranquilisers. He considers that the letter of referral written by the Practitioner to Dr Menon placed the Patient at risk in terms of her proposed future treatment.
In the absence of any challenge or contradiction by the Practitioner, the Tribunal considers that it is open to it to infer that the Practitioner knew that the details of the Patient's medication contained in the referral letter were false and the Tribunal so finds.

Practitioner's attempts to persuade the Patient not to cooperate with the Board's enquiries

The Board alleges at para 18 of the Substitute Grounds that on or about 4 November 2014, the Australian Health Practitioner Regulation Agency (AHPRA) informed the Practitioner that it had received a notification concerning his conduct with respect to the Patient.
It is apparent from the correspondence between the Practitioner's then solicitors and AHPRA at pages 265 and onwards of the Board's book that, at least from 15 January 2015, the Practitioner had been informed of the notification to the Board concerning his conduct with respect to the Patient. This is not disputed or challenged by the Practitioner and the Tribunal makes this finding of fact.
The Board alleges that during 2016, the Practitioner then engaged in contact with the Patient as set out in para 19 of the Substituted Grounds.
It is the evidence of the Patient that in 2016 she was attending appointments with Dr Chapman at the Marion Centre and she would park at the car park of OSH Group Pty Ltd, Wembley. She says that '[o]n a few occasions, I saw [the Practitioner] in the OSH car park. On one occasion, I left a note on [the Practitioner's] windscreen asking him to wait for me, and he was sitting in his car when I returned from my appointment'; PWS 15.5.17 at para 422.
She then says (PWS 15.5.17 at para 426) that on one of those occasions, they decided to meet at the Dome Café in Subiaco and they later met there. She says that after the meeting at the Dome Café, they then walked together to the Practitioner's car; PWS 15.5.17 at para 427.
The Patient says (PWS 15.5.17 at paras 470-472) that on 16 March 2016 she received a call from the Practitioner asking that she meet him at the Dome Café and she agreed. She went to the Dome Café but the Practitioner did not attend. When she contacted him he told her that he had been delayed and she asked instead that he meet her at the Witches Cauldron Restaurant in Subiaco, where the Patient and the Practitioner subsequently met.
The Patient then goes on to say (PWS 15.5.17 at para 477) that in August 2016 she saw the Practitioner at the Glendalough Shopping Centre and they had a coffee at a café in the outer part of the Shopping Centre, the name of which she does not recall.
The Patient says that on 19 April 2017 she again went to the Glendalough Shopping Centre and telephoned the Practitioner who arranged to meet her at the Dome Café at 20 Walters Drive, Osborne Park; PWS 15.5.17 at para 483.
The Patient's evidence in respect of these contacts with the Practitioner is uncontradicted. The Tribunal accepts this evidence and finds that these events in fact occurred.
The Board then alleges at para 20 of the Substituted Grounds that at all or some of the meetings between the Patient and the Practitioner, the Practitioner sought or attempted to encourage, persuade and/or influence the Patient not to make or give a witness statement to AHPRA in relation to the allegations made against the Practitioner, not to cooperate with AHPRA by providing further information about the Practitioner's relationship with the Patient and not to sign a witness statement in relation to any proceedings to follow.
It is the Patient's evidence that the conversations that she and the Practitioner had on these other occasions (PWS 15.5.17 at para 428) contained the following exchanges:
a)On each occasion, the Practitioner asked the Patient if she had given a witness statement, told her that she did not have to give a statement and that AHPRA would 'lean on [the Patient] like hell' to proceed with her notification but that without her the case against the Practitioner 'will go away'; PWS 15.5.17 at para 429.
b)The Practitioner told the Patient that anything that she said against him would 'ruin him financially and professionally if the case went ahead'; PWS 15.5.17 at para 431.
c)On one occasion, the Patient asked the Practitioner what he would say about the Patient if she did not give a witness statement. She says that the Practitioner told her that he would tell them nothing as it was in his interests to 'shut all of this down'; PWS 15.5.17 at para 436.
d)The Practitioner told the Patient that if the matter went before the Tribunal 'it would be as hard on [the Patient] as it would on [the Practitioner]'; PWS 15.5.17 at para 442.
e)The Patient says that at the meeting at the Witches Cauldron Restaurant, the Practitioner told her that she did not have to sign a witness statement and that without a statement from the Patient AHPRA 'wouldn't have a case'; PWS 15.5.17 at para 473.
f)The Patient says that at the meeting at the Dome Café, Osborne Park, the Practitioner set out what he referred to as 'three options'. The first, he said was that the Patient should refuse to give a statement. The second was that the Patient should go overseas. The third was that the Practitioner would engage a lawyer for the Patient. He said that the Patient could tell the lawyer that she was depressed with suicidal thoughts and that the lawyer could deal with AHPRA for her and say that she could not give a statement because it would be bad for her mental health; PWS 15.5.17 at para 488.
The Patient's evidence about these conversations is uncontradicted. The Tribunal accepts this evidence and finds that all of those events in fact occurred.
The Tribunal finds that the Practitioner had contact with the Patient during 2016 and 2017 and that at all or some of the meetings between the Patient and the Practitioner, the Practitioner sought or attempted to encourage, persuade and influence the Patient not to make or give a witness statement to AHPRA or to the Board in relation to the allegations made against the Practitioner, nor to cooperate with AHPRA or the Board by providing further information about the Practitioner's relationship with the Patient and not to sign a witness statement in relation to any of the proceedings to follow.

Legislation

Under s 6 of the 2010 Act, the Tribunal is 'the responsible Tribunal' for the purposes of the National Law.
Section 3(2)(a) of the National Law provides:
(2)The objectives of the national registration and accreditation scheme are -
(a)to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered[.]
Section 3(3)(c) of the National Law provides as follows:
(3)The guiding principles of the national registration and accreditation scheme are as follows -
…
(c)restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely consistent with best practice principles.
Section 4 of the National Law requires the Tribunal to exercise its functions under the National Law having regard to the objectives and guiding principles set out in s 3 of the National Law.
Section 5 of the National Law defines 'unprofessional conduct' and 'professional misconduct' as follows:
unprofessional conduct, of a registered health practitioner, means 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
(b)a contravention by the practitioner of -
(i)a condition to which the practitioner's registration was subject; or
(ii)an undertaking given by the practitioner to the National Board that registers the practitioner;
and
(c)the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession; and
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well-being; and
(e)influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(f)accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and
(g)offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h)referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation[.]
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[.]
Section 193 of the National Law relevantly provides that a National Board must refer a matter about a registered health practitioner to a responsible Tribunal if the National Board reasonably believes that that practitioner has behaved in a way that constitutes professional misconduct.
Section 196 of the National Law provides:
(1)After hearing a matter about a registered health practitioner, a responsible tribunal may decide -
(a)the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b)one or more of the following -
(i)the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii)the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii)the practitioner has behaved in a way that constitutes professional misconduct;
(iv)the practitioner has an impairment;
(v)the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board established for the practitioner's health profession information or a document that was false or misleading in a material particular.
(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 decides 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 Practitioner points out that the Tribunal did not make the following findings against the Practitioner which were alleged by the Board:
(a)the Board's allegations that the Patient's consultations were more frequent than necessary for the proper treatment of any psychiatric illness from which the Patient suffered;
(b)the Board's allegations that the Practitioner did not cease providing Ritalin to the Patient or reduce the dosage having observed and become aware of its effects on the Patient;
(c)the Board's allegations that the Practitioner did not make any clinical notes in respect of certain consultations;
(d)the Board's allegations that the Practitioner failed to keep records of clinical diagnoses and records of all of the medication that was prescribed by the Practitioner, or that the Practitioner deliberately included false information about the Patient and her treatment by the Practitioner in his clinical notes; and
(e)the Board's allegations of criminal conduct on the part of the Practitioner.
The Practitioner then sets out in his submissions some details of the Practitioner's personal and professional background.
The Practitioner says that he 'is still highly regarded in the community despite his fall from grace'; PS at para 31. The Practitioner says that he should be considered of prior good character.
He says that he has no record of a similar kind of this type of misconduct and he submits that he is a 'low risk of committing similar behaviours in the future'; PS at para 34. He says that whilst the fact that he did not make any admissions may indicate a lack of remorse, the approach he took before the Tribunal, namely electing not to participate 'in the trial of these proceedings', meant that although he did not admit the allegations, he did not contest the allegations made against him, thus sparing a number of witnesses, including the Patient, from giving evidence and being cross-examined.

The statutory scheme

The Health Practitioner Regulation National Law (Western Australia) (National Law) is set out in Sch 1 of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (2010 Act). Under s 196(1) of the National Law, the Tribunal, having decided that the Practitioner by his conduct behaved in a way that constitutes professional misconduct, may do one or more of the things specified in s 196(2) of the National Law. That subsection provides as follows:
(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.
The Tribunal is the responsible tribunal for the purposes of the National Law; s 6 of the 2010 Act.
Section 196 subsections (3) and (4) of the National Law then provide as follows:
(3)If the responsible tribunal decides 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.
Section 195 of the National Law provides that the Tribunal may make any order about costs it considers appropriate for the proceedings.
Section 87 of the SAT Act also deals with the Tribunal's power to award costs in proceedings and provides as follows:
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to -
(a)whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;
(b)whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
(5)The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.
(6)The Tribunal may order that the representative of a party, rather than the party, in the representative's own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs.

Principles to be applied

The applicable legal principles to be applied in the regulation and discipline of medical practitioners were recently set out in Medical Board of Australia and Singh [2017] WASAT 33 (S) (Singh S) at [23]-[29].
In Singh v Medical Board of Australia [2019] WASCA 51 (Singh), Quinlan CJ and Pritchard J, after noting at [26] that the principles set out in Singh S had been well settled for some time, observed that a number of those principles find their expression in cases relating to the regulation and discipline of legal practitioners. While stating that it is necessary to keep in mind the institutional and functional differences between the two professions, they considered that those cases and a number of the general principles identified in them are also relevant to the regulation and discipline of medical practitioners; Singh at [28]-[29].
In Singh at [30]-[39], Quinlan CJ and Pritchard J then went on to identify the principles to be applied in the regulation and discipline of legal and medical practitioners when considering an appropriate penalty.
As their Honours observed, it is well established that the purpose of disciplinary proceedings is to protect the public, not to punish the practitioner, at least in the sense in which punishment is imposed under the criminal law. The public is protected by the making of orders which will prevent a person who is unfit to practise from practising, or by making orders which secure the maintenance of proper professional standards.
Their Honours noted that the protection of the public has various dimensions. They may include the immediate need to protect the public from the practitioner's conduct, the need to bring home to the practitioner the seriousness of his or her conduct, and the need to deter the practitioner from future breaches. So too, as Doyle CJ observed in Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 (Craig) at [48], the protection of the public may require an order to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. Such an order may, in this sense, be regarded as akin to 'general deterrence'.
Their Honours then stated that, because the purpose of disciplinary proceedings is the protection of the public, the impact that an appropriate penalty will have on a practitioner guilty of misconduct, and any personal hardship to the practitioner, are necessarily secondary considerations. This principle was usefully set out in Craig at [44]-[46] in the following manner:
A contrast is often drawn between orders made for the protection of the public, against professionals who have departed from proper professional standards, and orders or sentences by way of punishment as part of the administration of the criminal law.
While there is a fundamental difference between an order made by a professional disciplinary tribunal for the protection of the public, and a punishment imposed by a court administering the criminal law, disciplinary orders made by professional bodies may nevertheless have elements in common with criminal sanctions.
In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner. And, as Evatt [The New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177] shows, such an order will be made even though, if punishment of the practitioner were the only consideration, considerations of mercy might lead to a less severe order.
Accordingly, while the personal circumstances of the practitioner are a relevant consideration, the weight to be afforded to personal circumstances cannot override the fundamental obligation of the disciplinary tribunal or court to provide appropriate protection of the public.
Their Honours went on to say that, of particular significance in any given case will be whether the findings of misconduct reveal that a person is unfit to practise in their profession; Singh at [34]. They cited Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Khosa), where Murphy and Beech JJA discussed this consideration in the context of disciplinary proceedings against legal practitioners and said (at [191][192]):
In general terms, where the conclusion is reached that a practitioner is presently unfit to practise, a choice may be made between suspension and striking off. If an order for suspension is made in that event, it must be made on the basis that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise because, at the end of the relevant period, the practitioner's name will still be on the roll of practitioners and may resume practise. Suspension is a 'serious form of discipline which is usually imposed to discipline the legal practitioner, who has committed an act of unprofessional conduct but who, in the opinion of the court, at the end of the period of suspension, will be a fit and proper person to practise the law'. In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations 'reflecting, to a significant degree, upon the practitioner's fitness to practise'.
Where, however, the present unfitness to practise reveals that the practitioner lacks the character and trustworthiness necessary to discharge the responsibilities of legal practice, or that the practitioner is permanently or indefinitely unfit to practise, striking off rather than suspension will (at least ordinarily) be the appropriate response. (footnotes omitted)
Quinlan CJ and Pritchard J considered that these principles may, in a qualified way, be applied by analogy to medical practitioners; Singh at [35]. They said that, as Khosa demonstrates, in the context of legal practitioners, a choice may often arise between suspension and striking off (that is, removing the practitioner's name from the roll of practitioners). They considered that in relation to the medical profession, the order under the National Law that is most analogous to 'striking off' is cancellation of the practitioner's registration. However, they noted that the analogy is not perfect. They pointed out that, for example, an order cancelling a medical practitioner's registration may be made by the Tribunal, whereas an order to remove a legal practitioner's name from the roll of practitioners may only be made by the Full Court; Singh at [36].
Their Honours considered that nevertheless, the approach identified by Murphy and Beech JJA in Khosa provides a useful guide as to whether suspension or cancellation of registration of a medical practitioner is appropriate in any given case. Applying that approach, and using the words from Khosa at [192], they said that where a medical practitioner is 'permanently or indefinitely unfit to practise, [cancellation of registration] rather than suspension will (at least ordinarily) be the appropriate response'; Singh at [37].
In Singh at [38], Quinlan CJ and Pritchard J said that on this approach, permanent or indefinite unfitness to practice (at least ordinarily) will be a sufficient basis for cancelling the practitioner's registration. It must be recognised, however, that permanent or indefinite unfitness to practice, is not a necessary condition for cancellation (their emphasis). They noted that, as the Court had said in Chen v Health Care Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 (Chen), the National Law does not elevate any consideration relevant to the power to cancel registration to the status of a precondition to that power.
As Basten JA stated in Chen at [20]:
There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. 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.
If comparing penalties imposed in similar cases, care needs to be taken before assuming that the disciplinary orders in one case should be regarded as indicating what disciplinary orders should be made in another case; Lee v Health Care Complaints Commission [2012] NSWCA 80 at [23]-[24].
Finally, in accordance with the findings in Lal v Medical Board of Australia [2018] WASCA 109, unless the Tribunal has given notice to the parties otherwise, the Tribunal may not depart from the facts as agreed by the parties, and by analogy, as found by the Tribunal, as to the conduct to which the penalty relates in determining the appropriate penalty.

Disposition

Global penalty appropriate

We agree with the parties, for the reasons given by the parties, that this is a case in which a 'global' approach to sanction, rather than the imposition of separate sanctions for each unprofessional act, is appropriate.

Consideration of misconduct findings

There is no doubt in the Tribunal's mind that the Tribunal's finding concerning the Practitioner's boundary transgression, as professional misconduct, is very serious. The Tribunal agrees with the Board's submission (BS at para 24) that 'this aspect of [the Practitioner's] misconduct constitutes a particularly egregious example of a boundary transgression'. This was not a case of a medical practitioner becoming merely socially acquainted or friendly with a patient. This is a case where, in accordance with the Tribunal's findings in the Misconduct Decision, the Practitioner entered into a sexual relationship with the Patient which persisted over a protracted period of time while the Patient was still being treated by the Practitioner; Misconduct Decision at [158]. This was in circumstances where the Patient was in a particularly vulnerable state and at a time when the Patient was 'disinhibited, suffered from insomnia and experienced an elevated libido' while she was taking Ritalin as prescribed by the Practitioner; Misconduct Decision at [162]. The Tribunal found the Practitioner's conduct to be 'improper and destructive to the Patient'; Misconduct Decision at [159].
Dr Phillips, the Board's expert, whose evidence the Tribunal accepted, described the relationship between the Practitioner and the Patient as unethical and said that the Practitioner's conduct put the Patient at risk of exacerbating her underlying mood disorder and developing other additional psychiatric symptoms.
Dr Phillips reproached the Practitioner for his failure to keep proper records of the drugs which were prescribed by him for the Patient, and described his approach to the prescription of psychotropic drugs as 'scattergun', and 'without any obvious plan'. Dr Phillips said that the Practitioner's 'actions were not good clinical practice'; Misconduct Decision at [165]. Dr Phillips was strongly critical of the Practitioner and, in the Tribunal's opinion, justifiably so.
The Tribunal found that the Practitioner did not keep legible records of his treatment of the Patient in breach of the Code. Dr Phillips was 'surprised' about the Practitioner's failure to provide a comprehensive diagnostic formulation or outline his treatment plan in keeping with his Patient's needs. He was 'significantly critical' of the Practitioner's standards in respect of the keeping of clinical records and, again in the Tribunal's opinion, with justification.
The Tribunal also found (Misconduct Decision at [174]-[176]) that details contained in the referral letter from the Practitioner to another health professional, Dr Menon, were false, that the Practitioner knew the referral letter would mislead Dr Menon as to the medication that the Patient was then taking, and that the referral letter would compromise his ability to properly care for the Patient and therefore the Patient's health and safety. The Tribunal considers that this misconduct, even if considered alone, would constitute professional misconduct in the higher range of seriousness.
The Tribunal also found that the Practitioner had attempted to persuade the Patient not to cooperate with the Board and AHPRA's enquiries. In the Misconduct Decision at [180], the Tribunal described Dr Phillips' assessment of the pressure that this conduct would have placed the Patient under and the consequential effect on her health. The Tribunal is aware that the Practitioner's conviction in the District Court is the subject of an appeal and we therefore do not intend to comment any further on this issue, other than to say that, as matters presently stand, the Tribunal can and does conclude that the Practitioner was prepared to sacrifice the Patient's health and wellbeing in pursuit of his own desire to avoid having to deal with the complaint to the Board. Even when considered in isolation from the other instances of professional misconduct, this warrants a substantial penalty.

Consideration of any factors in mitigation

The Tribunal has not been provided with any evidence or submissions as to the Practitioner's insight into his misconduct, and the Practitioner expressly accepts that the fact that he did not make admissions in the misconduct proceedings may indicate a lack of remorse; PS at para 35. The Tribunal concludes that the Practitioner does not have any insight into his wrongdoing and that he has shown no remorse.
We have considered the three character references provided by the Practitioner to the Tribunal which we identified at [4] of these reasons.
The reference from Dr Kostov relates to the Practitioner's conviction in the District Court (and is in fact addressed to that Court) and, although Dr Kostov says that he is aware of the Tribunal's findings in the Misconduct Decision, we do not consider that any weight should be attached to that reference.
The reference from Pastor Parker indicates that his knowledge of the Practitioner emanates from care which the Practitioner has provided to Pastor Parker. It makes no reference at all to the details of the Practitioner's misconduct. Again, we attach little weight to it.
The reference from the Practitioner's son states that he is aware of the Tribunal's findings in the Misconduct Decision, but makes no mention of how his clear admiration of the Practitioner's character and reputation is to be reconciled in any way with the Tribunal's misconduct findings against the Practitioner. Once more, we give little weight to it.
We do not agree with the Practitioner that the fact that he did not participate in the proceedings is in any way mitigatory. As the Board correctly points out, the Practitioner's decision to not participate in the final hearing of this proceeding was only made known to the Tribunal a few days before the commencement of the final hearing. The hearing was to commence on 25 November 2019 and the Practitioner advised the Tribunal of his intentions on 22 November 2019. Even though that decision on the part of the Practitioner meant that the Patient was not required to give evidence before the Tribunal, she did not know of that until the day before the final hearing and accordingly would still have suffered the stress and anxiety of knowing that she would be examined and cross-examined about intimate details of a particular period in her life. We therefore do not accept the Practitioner's submission that by his decision not to participate he 'spared a number of witnesses, including the [P]atient, from giving evidence and being cross-examined'; PS at para 35.
Further, the Tribunal does not entirely accept the Practitioner's submission that he 'has no record of similar kind [sic] of this type of misconduct'; PS at para 34. The Board has provided the Tribunal with copies of correspondence between AHPRA and the Practitioner, from which the Tribunal understands that:
(1)on 1 July 2014, the Board made a finding against the Practitioner of inappropriate prescribing, as a result of which the Practitioner was cautioned and required to undertake education and training;
(2)on 1 November 2016 the Board found that the Practitioner had provided false and misleading information in a medico-legal report, resulting in a caution; and
(3)on 6 June 2017, the Board found that the Practitioner had failed to complete and forward a medico-legal report in a timely manner and issued another caution.
While, with the possible exception of the Board's finding of 'inappropriate prescribing', these are not similar acts of misconduct in respect of the matter under consideration, it cannot be said that the Practitioner until these proceedings 'had not been the subject of adverse findings in any disciplinary proceedings' as maintained by the Practitioner; PS at para 24.

Conclusion on penalty

When the Practitioner's professional misconduct is considered as a whole, the Tribunal is in no doubt that there exists a need to protect the public from any further such misconduct by the Practitioner. There is also a need to protect the public through general deterrence of other practitioners in respect of conduct of that kind. The penalty needs to be sufficient to maintain public confidence in the medical profession and to demonstrate the Tribunal's condemnation of the Practitioner's conduct.
Further, the Practitioner has not given the Tribunal any reason to be confident that there is no likelihood of the Practitioner repeating this kind of misconduct in the future.
The Tribunal concludes that the Practitioner is unfit to practise as a medical practitioner. We do not consider that an order suspending the Practitioner's registration is an appropriate penalty because we are not satisfied that, at the end of any period of suspension, the Practitioner will no longer be unfit to practise. We will therefore make an order under s 196(2)(e) of the National Law that the Practitioner's registration is cancelled.
We will also make an order under s 196(4)(a) of the National Law fixing a period of disqualification before an application for reregistration will be considered. We have concluded that the period of disqualification from making such an application is five years.
We consider that these orders will make apparent the Tribunal's disapprobation of the Practitioner's conduct. On that basis we therefore consider that it is unnecessary to also make an order for a reprimand as sought by the Board.

Order sought under s 196(4)(b)

The Board further seeks an order under s 196(4)(b) of the National Law that the Practitioner be prohibited from using any title or a specified title and from providing any health service or a specified health service.
The text of s 196(4) of the National Law includes an 'or' between paragraphs (a) and (b) of that section. It also uses 'or' between the sub-paragraphs of paragraph (b) (specified title or specified service). While the Tribunal notes that under s 7 of the 2010 Act, the Interpretation Act 1984 (WA) does not apply to the National Law, the Tribunal nonetheless considers that paragraphs (a) and (b) of s 196(4) must be read disjunctively. We consider that this is the proper conclusion to be drawn from the statutory text. To the extent that it is relevant, this interpretation is consistent with the part of the explanatory notes to the Health Practitioner Regulation National Law Bill 2009 (WA), quoted by the Board in its submissions; BRS at para 18. That relevantly provides that, if the Tribunal orders the cancellation of a person's registration, the Tribunal 'may also decide to disqualify the person from applying for registration … , or prohibit the person from using a specified title or providing a specified health service' (Tribunal's emphasis).
The Tribunal accordingly finds that it is not open to it to make orders under both paragraph (a) and paragraph (b) of s 196(4) of the National Law because of the use of the word 'or'.
It is therefore unnecessary for the Tribunal to consider the effect of the word 'or' where it appears in subparagraph (i) of paragraph (b) of s 196(4).

Costs

The Board says that because it was substantially successful in the proceedings, it should, applying the principle set out in Motor Vehicle Industry Board and Dawson [2006] WASAT 8, have its costs, to be assessed by the Tribunal if not agreed; BS at para 68.
The Practitioner accepts that under s 87(2) of the SAT Act, the Tribunal has a discretion as to the costs and that it is well-established that the Tribunal does exercise that discretion in favour of a successful party in vocational proceedings; PS at para 43.
The Practitioner also acknowledges that s 195 of the National Law provides that the Tribunal may make any order about costs that it considers appropriate; PS at para 44.
The Practitioner contends that he ought not bear the costs of the parts of the Board's application which were unsuccessful. The Practitioner submits that he should pay two-thirds of the Board's costs of these proceedings to be taxed if not agreed; PS at para 50.
There is no dispute that the Tribunal is empowered to make an order as to costs. The source of that power is s 87(2) of the SAT Act and also s 195 of the National Law. Whether the power under s 195 of the National Law is different in any material way to the power under s 87(2) of the SAT Act was raised but ultimately not considered in the recent decision of Panegyres v Medical Board of Australia [2020] WASCA 58 (Panegyres) at [320]. However, as Vaughan JA said, '[a]ny possible distinction between the two powers is irrelevant where [the practitioner] accepted that a costs order should be made' and is only concerned with the Tribunal's determination as to quantum; Panegyres at [321].
That is the situation in the present case.
The effect of s 87(1) of the SAT Act is, relevantly, that each party in proceedings before the Tribunal is to bear its own costs, unless the Tribunal otherwise orders.
The power to make an order that one party is to pay the other parties costs is contained in s 87(2) of the SAT Act. Although s 87(2) does not in terms say that the discretion is to be exercised if it is fair and reasonable in all the circumstances of the case to do so, the judicial nature of the exercise and scheme of the SAT Act indicates that, broadly speaking, that is the legislative intention; WesternAustralian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) at [46][49]. The general rule that the successful party in curial litigation is prime facie entitled to his or her costs has no application, given the presumptive position or starting point under s 87(1) of the SAT Act that each party is to bear its own costs; Questdale at [50]. The onus of showing that, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred is on the party seeking an order in its favour; Questdale at [51].
The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Board, will usually result in an order for costs being made in favour of the vocational regulatory authority; Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman) at [30], referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35]. As the Tribunal said in Roberman, the policy basis is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources', and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented'.
There is, however, no presumption that a disciplinary body will always be awarded costs if successful. Each case must be considered individually on its merits.
We consider that the Board was entirely successful in its application against the Practitioner. We accept, as the Practitioner has pointed out, that some of the grounds for allegations made by the Board were not established. Nonetheless, each of the allegations of professional misconduct made by the Board were established, even though not entirely on the basis of the grounds raised by the Board.
It must in any event be said that at least some of the grounds (for example, the allegation that the Practitioner did not make clinical notes in respect of certain consultations) were not established partly due to the non-participation of the Practitioner in the proceedings.
The Tribunal will order that the Practitioner will pay the Board's costs, to be determined by the Tribunal if not agreed between the parties.

Orders

The Tribunal orders that:
1.The respondent's registration as a health practitioner is cancelled pursuant to s 196(2)(e) of the Health Practitioner Regulation National Law (Western Australia).
2.The respondent is disqualified from applying for registration as a health practitioner for a period of five years from the date of this order.
3.The respondent is to pay the applicant's costs in the amount agreed between the parties or, failing agreement, to be fixed by the Tribunal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

JUDGE T SHARP, DEPUTY PRESIDENT

30 JUNE 2020