Medical Board of Australia v Panda

[2019] WASAT 104

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT:   HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) 2010

CITATION:   MEDICAL BOARD OF AUSTRALIA and PANDA [2019] WASAT 104

MEMBER:   MS C WALLACE, SENIOR MEMBER

DR H HANKEY, SENIOR SESSIONAL MEMBER

MR P MARSHALL, SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   4 NOVEMBER 2019

FILE NO/S:   VR 218 of 2017

BETWEEN:   MEDICAL BOARD OF AUSTRALIA

Applicant

AND

RANJIT KUMAR PANDA

Respondent

Catchwords:

Medical practitioner - Allegations of professional misconduct - Convictions of unlawful and indecent assault committed against female patients - Breaches of chaperone condition

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 323
Evidence Act 1906 (WA), s 36C
Health Practitioner Regulation National Law (WA) 2010, s 3, s 3(2)(a), s 3(3)(c), s 4, s 5, s 6, s 39, s 41, s 156(1)(a), s 191, s 193, s 193(1)(a)(i), s 195, s 196, s 196(1)(b)(ii), s 196(1)(b)(iii)
State Administrative Tribunal Act 2004 (WA), s 60(2), s 60(3), s 62(3)

Result:

Finding of professional misconduct made

Category:    B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	No Appearance

Solicitors:

Applicant	:	Tottle Partners
Respondent	:	No Appearance

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

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Commissioner of Australian Federal Police v Hatfield [1992] FCA 43; (1992) 106 ALR 335

Dekker v Medical Board of Australia [2014] WASCA 216

Legal Profession Complaints Committee and Raney [No 2] [2018] WASAT 5; (2018) 94 SR (WA) 165

Medical Board of Australia and Roberts [2014] WASAT 76

Mickelberg v Director of the Perth Mint [1985] WASC 175; [1986] WAR 365

Panda v The State of Western Australia [2017] WASCA 5; (2017) 264 A Crim R 330

Saffron v Federal Commissioner of Taxation (No 2) [1991] FCA 363; (1991) 102 ALR 19

Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203

Sudath and Health Care Complaints Commission [2012] NSWCA 171; (2012) 84 NSWLR 474

Zeims v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. On 21 November 2017, the Medical Board of Australia (the Board) referred a matter to the Tribunal pursuant to s 193(1)(a)(i) of the Health Practitioner Regulation National Law being a Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (National Law).  The referral was amended by the Board on 21 May 2018 and seeks orders pursuant to s 196(1)(b)(iii) of the National Law, in respect of a finding of professional misconduct or alternatively, orders pursuant to s 196(1)(b)(ii) of the National Law in respect of a finding of unprofessional conduct as against Dr Ranjit Kumar Panda, who at all relevant times was registered as a medical practitioner pursuant to the National Law.

2. The referral arises in the context of judgments of conviction entered by the District Court of Western Australia against Dr Panda of eight offences of unlawful and indecent assault committed against female patients of Dr Panda during 2012.  In addition, the Board alleges breaches of a condition imposed on Dr Panda's registration on 31 January 2012 which required him to have a chaperone in attendance whilst conducting physical examinations of female patients (Chaperone Condition).

3. Whilst Dr Panda accepts that he has been convicted on eight charges of unlawful and indecent assault contrary to s 323 of the Criminal CodeAct Compilation Act 1913 (WA) (Criminal Code) in relation to female patients, he nevertheless disputes the allegations which led to the convictions and continues to raise concerns about the correctness of his convictions.

Procedural background

1. Section 36C of the Evidence Act 1906 (WA) makes it an offence to publish any matter likely to lead members of the public to identify a complainant of a sexual offence. The Tribunal therefore, at an early stage of the proceeding, made a non­publication order pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) ordering that the names of Dr Panda's patients and victims of the unlawful and indecent assaults of which Dr Panda was convicted should not be disclosed, distributed or published in any way.

2. Various programming orders were made by the Tribunal during mid­2018 in order to progress the matter towards a final hearing.            The Board complied with the programming orders by filing a bundle of documents on 18 June 2018, a bundle of witness statements on 16 July 2018 and a supplementary bundle of documents on 12 February 2019.  The Board also filed with the Tribunal written submissions dated              20 December 2018 and 18 February 2019.  Those documents were filed in preparation of a final hearing which had been listed on 18 and   19 February 2019. 

3. Dr Panda did not file any witness statements or a bundle of documents.  In addition, although ordered to produce any question in writing that Dr Panda wished to put to a witness in cross-examination by close of business on 15 February 2019, no list of questions was received by the Tribunal.

4. The final hearing listed in February 2019 was vacated on the morning of the first day of the hearing due to a late request made by         Dr Panda on medical grounds seeking a 30-day adjournment. 

5. The final hearing was therefore relisted to commence on 22 May 2019 for a duration of two days.  Dr Panda was given a further period of time within which to provide notice of the questions he wished to put to witnesses in cross-examination by 8 May 2019.  Dr Panda was placed on notice that if the Tribunal did not receive the questions in writing by the due date, then it would proceed on the basis that Dr Panda did not wish to ask any questions of the witnesses and the witnesses would not be required to attend the hearing.  Dr Panda did not comply with the order requiring the production of questions for cross-examination of witnesses.

6. On 17 May 2019 the Tribunal received a further late request to vacate the final hearing made by Dr Panda on medical grounds.               The accompanying medical certificate informed the Tribunal that Dr Panda would be unfit to attend the Tribunal for a period of two months.  The Tribunal therefore again vacated the final hearing.  The Tribunal also released the witnesses who had been summoned to attend and give evidence. 

7. Further, the Tribunal determined that, given the lack of evidence produced by Dr Panda and the lack of any basis on which to cross­examine the witnesses intended to be called by the Board, it was appropriate for the matter to be determined entirely on the documents pursuant to s 60(2) of the SAT Act.

8. The Tribunal afforded the parties further time to produce written submissions and any further documents to be relied upon.  The Tribunal also referred Dr Panda to its Pro Bono Scheme for the purposes of legal advice and assistance in the proceeding. 

9. Dr Panda, with the assistance of pro bono counsel support, filed with the Tribunal his outline of written submissions dated 4 October 2019 together with attached documents and an affidavit of Dr Panda sworn 4 October 2019. 

10. In light of the submissions made by Dr Panda in relation to the allegations of breaches of the Chaperone Condition, the Tribunal invited the Board to consider whether it wished to continue to press all of those allegations.  A number of the allegations relied upon witness statements of female patients not the subject of the criminal convictions, and in respect of which the facts were disputed by Dr Panda.  The Tribunal therefore raised with the parties, if those allegations were to be pressed, whether there was a need to relist the hearing for the purpose of receiving evidence from those two witnesses.

11. The Board filed its submissions in response on 18 October 2019, and in reply to the Tribunal's correspondence, sought to withdraw the particular allegations made in respect of alleged breaches of the Chaperone Condition in regard to two patients, RA and KP.

Statutory framework

1. Section 4 of the National Law relevantly provides as follows:

   (1)The Health Practitioner Regulation National Law set out in the Schedule ­

   (a)applies as a law of this jurisdiction; and

   (b)as so applying, may be referred to as the                    Health Practitioner Regulation National Law (Western Australia); and

   (c)as so applying, is a part of this Act.

   (2)The power conferred by the Health Practitioner Regulation National Law (Western Australia) section 245 to make regulations for the purposes of that Law does not extend to making a regulation relating to the safe operation or use by a medical radiation practitioner of an electronic product, irradiating apparatus or radioactive substance as those terms are defined in the Radiation Safety Act 1975 section 4.

   (3)The Health Practitioner Regulation National Law (Western Australia) sections 295 to 297 do not apply to an asset, liability, contract, property or record of the Council that relate to the management of the unincorporated Pharmaceutical Society by the Council.

   (4)In subsection (3) ­

   Council means the Pharmaceutical Council of Western Australia referred to in the Pharmacy Act 1964 section 7(1);

   unincorporated Pharmaceutical Society means the Pharmaceutical Society of Western Australia referred to in the Pharmacy Act 1964 section 6(1).

2. The Tribunal is 'the responsible Tribunal' for the purposes of the National Law pursuant to s 6.

3. 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[.]

4. 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.

5. 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.

6. 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 well­being; 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[.]

7. 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 the practitioner has behaved in a way that constitutes professional misconduct.

8. 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.

9. In addition, s 195 of the National Law provides that the Tribunal may make any order about costs it considers appropriate.

Section 39 of the National Law ­ Code and Guidelines

1. The Board has issued, pursuant to s 39 of the National Law, 'Good Medical Practice ­ A Code of Conduct for Doctors in Australia' (July 2010 and 17 March 2014) (Code) and 'Sexual Boundaries:  Guidelines for doctors' (28 October 2011) (Guidelines).

2. Pursuant to s 41 of the National Law a code or guideline issued by a National Board is admissible in proceedings commenced under the National Law as evidence of what constitutes appropriate professional conduct or practice for the profession.

3. Section 8(2) of the Code is entitled 'Professional boundaries' and states as follows:

   8.2Professional boundaries

   Professional boundaries are integral to a good doctor–patient relationship.  They promote good care for patients and protect both parties. Good medical practice involves:

   1.Maintaining professional boundaries.

   2.Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care …

4. The Guidelines complement the Code and clause 3 provides as follows (original emphasis):

   3.Understanding and defining sexual boundaries

   Sexual misconduct covers a range of inappropriate professional behaviours including sexualised behaviour, sexual exploitation or abuse, entering into a sexual relationship, and sexual assault. Criminal offences will be investigated by the police.

   Sexual Misconduct

   Under mandatory reporting requirements practitioners, employers and education providers must report ‘notifiable conduct' which includes engaging in sexual misconduct in connection with the practice of the profession.  Refer to section 10 of these guidelines for more information.

   Sexual misconduct includes:

   •engaging in sexual activity with:

   -a current patient regardless of whether the patient consented to the activity or not

   -a person who is closely related to a patient under the doctor's care

   -a person formerly under a doctor's care

   •making sexual remarks, touching patients or clients in a sexual way, or engaging in sexual behaviour in front of a patient.

   In managing sexual boundaries a doctor should be aware that:

   •sexualised behaviour includes any words or actions that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desire

   •sexual exploitation or abuse includes sexual harassment or entering into a sexual relationship

   •sexual harassment is unwelcome behaviour of a sexual nature including, but not limited to, gestures and expressions. The doctor's intention in behaving in this way does not minimise the seriousness of the behaviour.  However, if they intended to offend, humiliate or intimidate the patient, then the behaviour would be regarded even more seriously. Sexual harassment includes:

   (a)making an unsolicited demand or request, whether directly or by implication, for sexual favours

   (b)irrelevant mention of a patient's or doctor's sexual practices, problems or orientation

   (c)ridicule of a patient's sexual preferences or orientation

   (d)comments about sexual history that are not relevant to the clinical issue

   (e)requesting details of sexual history or sexual preferences not relevant to the clinical issue

   (f)conversations about the sexual problems or fantasies of the doctor

   (g)making suggestive comments about a patient's appearance or body.

   •inappropriate disrobing or inadequate draping for a physical examination, and conducting intimate examinations without adequate prior explanation (and thus without informed consent) may be considered a breach of sexual boundaries

   •sexual assault ranges from physical touching (or examination without consent) to rape and is a criminal offence that should be investigated by the police

   •a sexual relationship describes the totality of the relationship between two people, when the relationship has some sexual element, including any sexual activity between a doctor and their patient.  This is the case whether or not the sexual relationship was initiated by the patient.

1. Clause 8 of the Guidelines addresses professional standards in conducting physical examinations and also addresses the use of chaperones and provides as follows (original emphasis):

   8.Professional standards in physical examinations

   Good medical practice in conducting physical examinations includes:

   •explaining to the patient what is to occur in the examination and providing an opportunity for the patient to ask questions

   •gaining the consent of the patient to conduct an examination

   •being sensitive to any sign the patient has withdrawn consent

   •not continuing with an examination when consent is uncertain, has been refused or has been withdrawn

   •allowing a patient to undress and dress in private. A doctor should not assist a patient to undress or dress unless the patient is having difficulty and requests assistance

   •providing suitable covering during an examination

   •using gloves when examining genitals or conducting internal examinations

   •not allowing the patient to remain undressed for any longer than is needed for the examination

   •gaining the patient's permission if anyone else, including medical students, is to be present during an examination or consultation

   •allowing a patient to bring a support person who may be a family member, close relative or friend

   Use of chaperones when conducting intimate examinations

   When discussing what is to occur in an intimate examination, a doctor should respond sensitively to a patient's questions and concerns.               A doctor should explore with the patient the value of a chaperone being present during the examination or allow the patient to bring a support person of their choice, if this would make the patient feel more comfortable.

   Sometimes a chaperone is not available, or the patient may not be comfortable with the choice of chaperone.  Under these circumstances the doctor should offer to postpone the examination until an appropriate chaperone is available, if this is does not impact on the patient's health care.

   A doctor should ensure the patient does not feel compromised or pressured into proceeding with an examination if a chaperone, or an acceptable chaperone, is not available.

   If a doctor provides a chaperone, the chaperone must:

   •be qualified e.g. a registered or enrolled nurse or appropriately trained, that is, the chaperone understands the support role they are performing on behalf of the patient

   •be of a gender approved by the patient or the patient's support person such as a parent, carer, guardian or friend

   •respect the privacy and dignity of the patient.

Relevant case law

1. In Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203, Mitchell J describes the task of a panel under s 191 of the National Law at [129]-[139]. The task of the Tribunal under s 196 of the National Law is akin to that of a panel and therefore it is useful to set out the required steps identified by Mitchell J:

   (a)The first matter that the Tribunal must be satisfied of is that the relevant practitioner has 'behaved in a way' that satisfies certain criteria.  This requires the Tribunal to identify the particular way in which the practitioner has behaved, including the circumstances in which the behaviour occurred.  It is only when the relevant behaviour and the surrounding circumstances are identified, that the question of whether the behaviour is of a prescribed character can be considered.

   (b)The circumstances which are relevant to the behaviour include any standard, or specific professional duty, generally accepted within the profession at the time: Dekker v Medical Board of Australia [2014] WASCA 216 at [71].

   (c)Once findings have been made about the manner and circumstance in which the practitioner has behaved, the Tribunal must consider whether behaving in that way, in the relevant circumstances, constitutes a certain category of conduct as defined in the National Law.  The Board bears the onus of proof.  It is to the civil, not criminal standard and the principles of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 apply. Thus the facts need only be established on a balance of probabilities, however, the nature and seriousness of the allegations are relevant to the question as to whether the facts are proved to the reasonable satisfaction of the Tribunal.

2. The differences between the categories of conduct defined in s 5 of the National Law was usefully explained in the decision of the Tribunal in Medical Board of Australia and Roberts [2014] WASAT 76 (Roberts) at [174]-[182] as follows:

   174The term professional misconduct is defined to include 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.  The definition is inclusory and is not an exhaustive statement of that term.  Thus, 'professional misconduct' under the National Law can include professional misconduct which does not fall within any of the paragraphs in the definition of that term, for example conduct which is characterised as professional misconduct or its equivalent under earlier vocational disciplinary legislation.

   175It follows from this that the test of whether professional misconduct has occurred still includes the test of 'infamous conduct in a professional respect' which was adopted in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750:

   If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council to say that he has been guilty of infamous conduct in a professional respect.

   176The adjective 'infamous' is a term 'denoting conduct deserving of the strongest reprobation, and indeed so heinous as to merit, when proved, the extreme professional penalty of striking off'; Felix v General Dental Council [1960] AC 704 at 720.

   177The term unprofessional conduct is defined to mean professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.  The definition then includes examples of 'unprofessional conduct'.  Unlike the definition of 'professional misconduct', the definition of 'unprofessional conduct' is an exhaustive statement of that term.

   178Unprofessional conduct is clearly conduct of a less serious nature than professional misconduct.  Whether or not a practitioner is guilty of unprofessional conduct must be judged in accordance with the standards of his or her profession. 

   179The definition of the term 'unsatisfactory professional performance' is also an exhaustive statement of that term.  It refers to a medical practitioner's performance as a practitioner rather than his or her conduct. 

   180As McLure P noted in Bernadt v Medical Board of Australia [2013] WASCA 259 at 23, professional misconduct has both a performance component (conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience) and a conduct component (conduct whether occurring in connection with the practice of the practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession).

   181The definition of unprofessional conduct also has both a performance component and a conduct component.  The performance component is professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or by the practitioner's professional peers.  The conduct component is, for example, the conviction of the practitioner for an offence under an Act other than the National Law, the nature of which may affect a practitioner's suitability to continue to practise the profession.

   182Unsatisfactory professional performance, on the other hand, has only a performance component (the knowledge, skill or judgment possessed, or care exercised by a medical practitioner is below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience).  It is suggestive of a generalised deficiency in the way in which a practitioner handles his or her professional affairs; Jemielita v Medical Board of Australia (Unreported, WASC, Library No 920584, 13 November 1992 at 19) (Jemielita).  In Jemielita Owen J was considering the meaning of 'incompetency' under the now repealed Medical Act 1894 (WA). It is likely that a finding of unsatisfactory professional performance will occur where the performance of the practitioner concerned has consistently fallen below the expected standard as a medical practitioner, or where the practitioner has never attained that standard.

The Board's allegations

1. The Board alleges that Dr Panda engaged in professional misconduct (in the sense conveyed by paragraph (a), (b) or (c) of the definition of that term in s 5 of the National Law) or alternatively, unprofessional misconduct (in the sense conveyed by paragraph (c) of the definition of that term in s 5 of the National Law) by reason of the judgments of conviction entered by the District Court of Western Australia of eight offences of unlawful and indecent assault contrary to s 323 of the Criminal Code against Dr Panda, such offences which were committed against five of his female patients. The details of the offences are set out in the table below.

Patient	Date of Offence	Nature of Offence	Date of Conviction	Verdict and Sentence
MK	19.01.12	Unlawful and indecent assault by touching her breasts	25.09.15	Convicted Imprisonment 12 months Concurrent
MK	19.01.12	Unlawful and indecent assault by touching her vagina	25.09.15	Convicted Imprisonment 21 months Head sentence
MH	19.01.12	Unlawful and indecent assault by touching her breasts	25.09.15	Convicted Imprisonment 12 months Concurrent
MH	19.01.12	Unlawful and indecent assault by touching her vagina	25.09.15	Convicted Imprisonment 21 months Cumulative
CT	06.07.12	Unlawful and indecent assault by touching her breasts	25.09.15	Convicted Imprisonment 9 months Cumulative
NV	02.08.12	Unlawful and indecent assault by touching her breasts	25.09.15	Convicted Imprisonment 9 months Cumulative
AN	07.08.12	Unlawful and indecent assault by kissing her face	25.09.15	Convicted Imprisonment 6 months Concurrent
AN	07.08.12	Unlawful and indecent assault by again kissing her face	25.09.15	Convicted Imprisonment 6 months Concurrent

1. The Board also alleges that Dr Panda behaved in a way that constitutes professional misconduct (in the sense conveyed by paragraph (a) or (b) of the definition of that term in s 5 of the National Law) or alternatively, unprofessional conduct (in the sense conveyed by paragraph (b) of the definition of that term in s 5 of the National Law) by failing to have a chaperone in attendance during a physical examination of two female patients in breach of the Chaperone Condition as follows:

Patient	Date of Consultation
NV	2 August 2012
AN	7 August 2012

1. The Board further alleges that by unlawfully and indecently assaulting five female patients Dr Panda has also breached:

   (a)section 8.2 of the Code; and

   (b)the Guidelines.

The respondent's response

1. Dr Panda accepts that he has been convicted of eight charges of unlawful and indecent assault in respect of women who were his patients.  Dr Panda submitted that 'the circumstances said to give rise to the convictions recorded in the Certificate of Final Outcome (pages 68 ­ 70 of the applicant's bundle) (Certificate) are no longer in issue' and therefore the Tribunal is entitled to determine the allegation made by the Board in respect of his criminal convictions and the conduct underlying those convictions on the basis of the Certificate. 

2. Dr Panda also accepts that if the circumstances were as set out in the Certificate in respect of the 2 August 2012 incident involving NV and the 7 August 2012 incident involving AN, then those circumstances would have been in breach of the Chaperone Condition imposed on his registration.

3. Dr Panda also conceded that the convictions of unlawful and indecent assault amount to professional misconduct.

4. Dr Panda, however, maintains concerns about the correctness of his convictions and continues to dispute the allegations made in respect of the alleged behaviour involving all of the patients.

Relevant findings of fact

1. Dr Panda graduated from the India Utkal University in 1977 and then obtained his Master of Surgery in General Surgery in 1982.               He worked in India as a general surgeon and as a consultant cardiothoracic surgeon during the period 1979 ­ 1989.  He then moved to South Australia in 1989 and commenced work at the Royal Adelaide Hospital.  Dr Panda remained in Adelaide for 4 years and then moved to New Zealand for approximately 12 months working in Dunedin Hospital until returning to Australia in 1994 where he worked at various hospitals in the position of either Registrar or Senior Registrar. 

2. Finally, in February 2010 Dr Panda settled in Western Australia and took up a position providing services as a general practitioner at a family medical centre until his engagement there was terminated in 2012. 

3. The circumstances that took place in 2012 which led to the criminal convictions the subject of this proceeding have been found as material facts by the sentencing judge of the District Court, Davis DCJ.  Those material facts are set out below in respect of each patient.

Patient MK

1. MK was seen by Dr Panda at the family medical centre on                  19 January 2012 experiencing symptoms of tonsillitis.  She was 32 years of age at the time of the consultation.  The following occurred during the consultation (page 87 of the applicant's bundle of documents):

   (a)Dr Panda initially examined MK's throat and then used a stethoscope on her chest;

   (b)Dr Panda told MK that he wanted to check her for skin cancers and whilst she sat on the examination table he pulled down her bra and 'jiggled her breasts'.  Dr Panda was not wearing gloves and the touching was brief;

   (c)Dr Panda then asked MK to lie on the examination table so that he could check her stomach.  During the course of this examination Dr Panda undid MK's skirt and pulled it down.  He also pulled down her underwear and asked her to open her legs.  MK complied with the request in the belief that Dr Panda was checking her for skin cancers;

   (d)Dr Panda then 'grabbed the outer lips of her vagina and held each of her vaginal lips between his thumb and forefinger, moving each from side to side, one after the other'.  Dr Panda was not wearing gloves. 

2. Davis DCJ found that Dr Panda's action in respect of touching MK's breasts and vagina was not a legitimate check either for tonsillitis or for skin cancer, nor was it proper practice for a doctor to remove a patient's clothing.  Further, her Honour found that MK's purported consent to the examination was obtained by Dr Panda through fraud or deceit.  There was no mention of the examination in the medical notes made by               Dr Panda for MK.

Patient MH

1. Dr Panda also saw MH on 19 January 2012 at the family medical centre.  At the time, MH was 18 years of age and attended the surgery in order to obtain results of a blood test.  The following took place during the consultation:

   (a)Dr Panda informed MH that he had been doing pap smears all day and asked whether she needed one.       MH responded by stating that she had already had a pap smear done by her family doctor;

   (b)Dr Panda then informed MH that he had also been performing skin checks all day and queried whether she needed to have any skin cancers checked.  MH did have a couple of moles that she wanted checked and so she agreed to an examination;

   (c)As MH lay down on the examination table, Dr Panda put his hands down her top and into her bra and touched her breasts and held them for one or two minutes.  He was not wearing gloves at the time. 

   (d)Whilst laying on the examination table Dr Panda asked MH to lift her dress.  Dr Panda asked MH to take her underpants down but she refused.  However, Dr Panda pulled MH's underpants down and spread her legs apart and moved the crotch of her underpants to one side and then put his fingers on either side of the inner parts of her vagina.  Dr Panda touched MH's vagina, keeping his hands there for two or three minutes.  He was not wearing gloves at the time.  Dr Panda did not check any other parts of MH's body.

2. Davis DCJ found that the holding of MH's breasts and pulling her underpants to one side and touching the inner parts of her vagina was not part of a legitimate or reasonable or proper medical check.  Davis DCJ also found that Dr Panda did not record the examination in the medical records for MH (page 88 of the applicant's bundle of documents).

Imposition of condition on registration

1. The Board imposed the Chaperone Condition on Dr Panda's registration on 31 January 2012 pursuant to s 156(1)(a) of the National Law as follows:

   The registrant must have a chaperone in attendance during any physical examination of a female patient.

   (page 105 of the applicant's bundle of documents)

2. Dr Panda was notified of the Chaperone Condition on 1 February 2012 (page 108 of the applicant's bundle of documents).  Dr Panda was notified that the Chaperone Condition took effect from the day of notification.  Dr Panda was further instructed that a chaperone was to be present where any physical contact occurred with a female patient (page 128 of the applicant's bundle of documents).

Patient CT

1. CT had a consultation with Dr Panda on 6 July 2012.  At the time she was aged 24 years and attended due to a sore chest, coughing and wheezing.  The following took place during the consultation (pages 89­91 of the applicant's bundle of documents):

   (a)Dr Panda asked CT to sit on the examination table and lift up her hoody.  Dr Panda then lifted the remainder of her outer clothes and removed one of her breasts from her bra.  Dr Panda slid his hand between her bra and breast and cupped the base of her breast with his hand and used the other hand to put the end of the stethoscope on her breast around the area of her nipple, while asking her to breathe in and out.  CT noticed that whilst              Dr Panda did this that he did not have the ear pieces of the stethoscope in his ears;

   (b)Dr Panda then removed CT's other breast from her bra and put the earpieces into his ears and placed the stethoscope on that breast while holding it with the other hand.  Whilst doing this Dr Panda asked CT about a tattoo that she had on her chest or torso and he stroked the tattoo.  The touching of the first breast was for at least two or three minutes and the touching of the second breast was for about one minute;

   (c)No note of the examination was made in the medical records for CT by Dr Panda;

   (d)Dr Panda and CT then sat at his desk and Dr Panda grabbed her hand and started stroking it.  He told CT that he liked her and wanted her to come back and see him on a Sunday.  Dr Panda asked CT to meet him in the practice carpark and then mentioned meeting for sex.     Dr Panda kept stroking CT's hand when he spoke to her and he gave her a hug when she was leaving;

   (e)After the consultation Dr Panda telephoned CT twice but she did not speak with him.

1. At the trial Dr Panda denied that any physical examination of CT had occurred and denied that he had done anything inappropriate.  Whilst Dr Panda admitted telephoning CT, he claimed to have done so in order to check on her welfare.

2. Davis DCJ noted that by their verdict the jury rejected Dr Panda's explanations.  Davis DCJ also rejected Dr Panda's explanations.

3. Davis DCJ found that holding CT's breast was not part of any legitimate or reasonable or proper medical check.  Her Honour also noted that Dr Panda had breached the Chaperone Condition given that he saw CT alone.

Patient NV

1. On 2 August 2012 Dr Panda had a consultation with NV at the family medical centre who at the time was 20 years of age.  NV attended the practice in order to obtain a prescription for a urinary tract infection.  The following occurred (pages 91-92 of the applicant's bundle of documents):

   (a)Dr Panda had received a phone call from the hospital who had diagnosed the urinary tract infection, advising Dr Panda which antibiotics should be prescribed to NV.  NV was attending the practice simply to collect a prescription from Dr Panda;

   (b)During the consultation Dr Panda asked NV about her work and working hours.  He asked her if she wanted more work and if so suggested that she could work with Dr Panda as his personal assistant or chaperone.  NV told Dr Panda that she would consider the offer;

   (c)Dr Panda then gestured for NV to sit on the examination table.  As she stood up to go to the examination table he gestured that she should give him a hug.  NV complied and gave Dr Panda a hug;

   (d)NV then sat on the examination table with Dr Panda standing in front of her with his hands on her knees.       Dr Panda then started asking her about her clothing, her bra and underwear size.  NV reluctantly told Dr Panda and he commented that he would now be able to buy gifts for her when he went to Sydney;

   (e)Then Dr Panda, standing between NV's legs, put his right hand down NV's top.  It was not until after Dr Panda had done this that he told her he was doing a breast examination.  He first removed her breast from her bra and fondled it for a couple of seconds.  Then he repeated the action for the same length of time to her other breast.

2. Davis DCJ was satisfied that the breast examination was unnecessary and was not a legitimate or proper procedure.  Her Honour also found that Dr Panda saw NV without a chaperone in breach of the Chaperone Condition (page 92 of the applicant's bundle of documents).

Patient AN

1. AN had a consultation with Dr Panda on 7 August 2012 at the family medical centre.  At the time AN was 20 years of age.  She had been consulting Dr Panda in relation to a knee injury.  The following took place at the consultation (pages 92-93 of the applicant's bundle of documents):

   (a)AN attended the consultation to obtain results of a magnetic resonance imaging scan from Dr Panda.  Initially Dr Panda informed AN that he did not have the results;

   (b)AN removed her work pants so that Dr Panda could examine her knee again.  Whilst AN was sitting on the examination table Dr Panda positioned himself between her legs and stayed there;

   (c)Dr Panda asked AN why she kept coming back to see him, and why she liked him, seemingly fishing for compliments and then Dr Panda came in for a hug;

   (d)After hugging AN Dr Panda grabbed her hand and linked his fingers with hers.  He attempted to kiss her but she kept turning her head.  However, Dr Panda connected with her cheek on several occasions;

   (e)AN moved from the examination table and put on her pants.  Dr Panda spoke to her about a conference he was attending in Sydney and suggested that he could buy her some lingerie.  Her asked her about her clothing and bra size;

   (f)As AN went to leave the consultation room, Dr Panda grabbed her and led her to the examination table and attempted to kiss her again.  Dr Panda tried to kiss AN on the mouth several times.  She turned her head and the kisses connected with the side of her mouth. 

Aggravating circumstances

1. Davis DCJ noted a number of matters constituting serious aggravating circumstances in relation to Dr Panda's offending as follows:

   (a)Dr Panda was the doctor and the victims were his patients;

   (b)all of the offences occurred in his consultation room at the surgery when the victims were alone with him;

   (c)Dr Panda was in a position of trust;

   (d)with the exception of two counts, all of the offending took place in the course of an examination which was neither warranted nor legitimate and involved Dr Panda touching the skin of the intimate parts of the victims body with his un-gloved hand or hands;

   (e)in the case of MK and MH, Dr Panda manipulated them into agreeing to undergo an examination which was not necessary for the condition or symptoms with which they had presented on the day.  Their consent was obtained by fraud or deceit;

   (f)in the case of CT there did not appear to be any reason given for the examination carried out;

   (g)in the case of NV, again her consent was not obtained and Dr Panda did not inform her of what he was doing;

   (h)the fact that Dr Panda offended against the last three victims in breach of the Chaperone Condition demonstrated the wilfulness of his offending behaviour;

   (i)the patients were young and vulnerable.  There was a large age disparity between Dr Panda and each patient.  In terms of vulnerability, three of the patients were suffering from mental health illnesses at the time that they saw Dr Panda, or had suffered from mental health problems in the past.  In fact Dr Panda had prepared a GP mental health plan for two of the patients;

   (j)the offending was a serious breach of trust and Dr Panda's professional responsibilities;

   (k)Davis DCJ was satisfied beyond reasonable doubt that in each case Dr Panda was acting selfishly, and he was doing what he did for his own sexual gratification;

   (l)the offending against each victim ceased because they made immediate complaints.  However, Dr Panda was not dissuaded by the complaints and in breach of the Chaperone Condition, simply chose to offend again against further victims;

   (m)Dr Panda demonstrated no remorse or empathy for his victims; and

   (n)Dr Panda's conduct destroyed the trust the victims have in medical practitioners and has had a significant adverse effect on each victim.

   (pages 93-95 of the applicant's bundle of documents; sentencing remarks at ts 2140-2141, 25 September 2015)

Dr Panda's registration as medical practitioner

1. The Board decided to suspend Dr Panda's registration on 24 August 2012 pursuant to s 156(1)(a) of the National Law (pages 111-114 of the applicant's bundle of documents).

2. Dr Panda's registration as a medical practitioner expired on 30 September 2013 (page 61 of the applicant's bundle of documents).

Convictions of unlawful indecent assault

1. Dr Panda was found guilty following a trial by jury and he was convicted and sentenced by Davis DCJ on 25 September 2015. Dr Panda's convictions are recorded in the Certificate dated 1 October 2015 (pages 68-70 of the applicant's bundle of documents). The convictions in sentencing are set out in the table at [31] above.

2. On 12 January 2017, the Western Australian Court of Appeal dismissed Dr Panda's appeal against his conviction; Panda v The State of Western Australia [2017] WASCA 5; (2017) 264 A Crim R 330.

Determination

1. The Tribunal accepts the Board's submissions filed on 6 February 2019, to the effect that in considering whether Dr Panda is a fit and proper person to hold registration in the profession, Dr Panda is able to lead evidence to challenge the facts underlying his conviction:  Zeims v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 (Zeims); Sudath and Health Care Complaints Commission [2012] NSWCA 171; (2012) 84 NSWLR 474 at [83] (Sudath).  Whilst this Tribunal can give significant weight to the findings of the sentencing judge, it is nevertheless required to consider all of the material before it and make its own determination on the issues relevant to the disciplinary proceeding;   Legal Profession Complaints Committee and Raney [No 2] [2018]WASAT 5; (2018) 94 SR (WA) 165 at [52].

2. If the Board had brought its allegations simply on the basis of the criminal convictions themselves, seeking a finding of professional misconduct in the sense conveyed by paragraph (a) or (b) of the definition of that term in s 5 of the National Law, it would not be appropriate for Dr Panda to lead evidence to challenge the facts underlying those convictions. That is because the exercise of the Tribunal's power would be founded on the criminal convictions themselves and it would be an abuse of process to seek to re-litigate that which has already been tried and determined in order to attack the integrity of the earlier decision; Saffron v Federal Commissioner of Taxation (No 2) [1991] FCA 363; (1991) 102 ALR 19 (Saffron) at [22]-[23] (Davies J); Commissioner of Australian Federal Police v Hatfield [1992] FCA 43; (1992) 106 ALR 335 at 350 (Olney J); Mickelberg v Director of the Perth Mint [1985] WASC 175; [1986] WAR 365 at 371-372 (Burt CJ, with whom Kennedy J concurred).

3. However, the Board as part of its allegations alleges that Dr Panda should be found guilty of professional misconduct, in the sense conveyed by paragraph (c) of the definition of that term in s 5 of the National Law, and hence requires the Tribunal to make findings of fact upon which it must consider whether Dr Panda is fit to practise.  This requires consideration by the Tribunal of facts which go beyond the criminal convictions themselves and extend into the underlying conduct; Zeims; Sudath at [44]-[45]; Saffron at 22.

4. Although Dr Panda did not file any evidence with the Tribunal addressing the circumstances giving rise to the offences, he did provide a detailed response together with signed witness statements to the Australian Health Practitioner Regulatory Authority (AHPRA) on 26 April 2017 (pages 354-395 of the applicant's bundle of documents).  The response to AHPRA asserted that the victims' complaints were fabricated and formed part of a conspiracy by the other medical practitioners, receptionists and practice manager at the family medical centre to drive Dr Panda out of the practice (page 365 of the applicant's bundle of documents).  Dr Panda alleged that the other medical practitioners wanted him to leave because of his popularity with patients and their loss of income as a result.  Dr Panda alleged to AHPRA,               in referring to the doctors and staff of the family medical centre, 'their main motto were to involve me in as many cases as possible'.

5. The Tribunal has considered all of the evidence before it and finds on a balance of probabilities, feeling an actual persuasion, that the behaviour as set out at [41]-[53] above did occur in the manner described. In so finding the Tribunal places weight on the following:

   (a)Dr Panda was convicted after a lengthy trial by jury which found him guilty;

   (b)Davis DCJ made the material findings of fact, being satisfied beyond a reasonable doubt of each of those facts;

   (c)Dr Panda unsuccessfully appealed against both the conviction and the sentence;

   (d)Dr Panda's explanation, that patients fabricated complaints at the request of staff at the family medical centre as part of a conspiracy to remove him from the practice, appears to the Tribunal to be an implausible story and one, if presented at trial, which the jury did not find to be truthful and, in any event, is uncorroborated in this proceeding;

   (e)Although Dr Panda has given evidence that he always complied with his Chaperone Condition, that evidence is based on the premise that Dr Panda did not undertake physical examinations of AN and NV and thus required no chaperone to be present (pages 366 and 369 of the applicant's bundle of documents). However, Davis DCJ found beyond a reasonable doubt that Dr Panda undertook physical examinations of AN and NV. In addition, no records of a chaperone being present during those consultations appear to have been produced either at trial or before the Tribunal.

6. In the Tribunal's view the conduct of Dr Panda amounts to professional misconduct under paragraph (a), (b) and/or (c) of the definition of that term set out in s 5 of the National Law. 

7. Dr Panda's conduct represents a most grave departure from the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.  Further, Dr Panda's behaviour is entirely inconsistent with him being a fit and proper person to hold registration in the medical profession.

8. Dr Panda was convicted and sentenced of eight counts of unlawful and indecent assault of young and vulnerable female patients.                   The circumstances underpinning the convictions evidence a serious violation of the trust placed in him.  Dr Panda abused the significant power differential which existed between himself and each of his patients for his own sexual gratification.

9. Despite steps being taken to protect the public, by the imposition of the Chaperone Condition on Dr Panda's registration, he nevertheless continued to commit the offences.  This evidences a serious disregard for the governing body designed to regulate the profession of which Dr Panda was part.

10. Dr Panda's conduct was not an isolated incident but represented a course of conduct over a significant period of time, being some seven months.  It only concluded when immediate action was taken against him in respect of the suspension of his registration.

11. Further, Dr Panda engaged in deceitful or fraudulent conduct by misrepresenting that he was providing a medical service such as the administration of a pap smear or skin cancer checks, in circumstances where he had no intention of providing such a medical examination or procedure.

12. Indeed in the Tribunal's view, the conduct in its entirety would reasonably be regarded as disgraceful or dishonourable by Dr Panda's profession of good repute and competency and in our view clearly falls into the category of conduct characterised as professional misconduct; Roberts at [174]­[182].

13. We therefore find that Dr Panda's conduct does constitute professional misconduct as defined in the National Law.  We make that finding on the basis of:

    (a)the judgments of conviction entered by the District Court of Western Australia of eight offences of unlawful and indecent assault charged in respect of Dr Panda and committed in relation to female patients as identified at [31] above;

    (b)the behaviour engaged in by Dr Panda which underpins the judgments of conviction entered by the District Court of Western Australia of eight offences of unlawful and indecent assault as identified at [41]-[53] above; and

    (c)Dr Panda's failure to have a chaperone in attendance during the physical examination of NV on 2 August 2012 and AN on 7 August 2012, in breach of the Chaperone Condition imposed upon his registration on 31 January 2012.

14. The Tribunal also finds that by unlawfully and indecently assaulting five female patients Dr Panda has breached s 8.2 of the Code and the Guidelines referred to at [24] above.

Orders

1.The Tribunal finds that the following disciplinary matters exist and that Dr Ranjit Kumar Panda is guilty of professional misconduct in that:

(a)Dr Ranjit Kumar Panda committed eight offences of unlawful and indecent assault against female patients, contrary to s 323 of the Criminal Code Act Compilation Act 1913 (WA);

(b)In breach of a condition imposed on Dr Ranjit Kumar Panda's registration on 31 January 2012 which prohibited him from conducting physical examinations of a female patient in the absence of a chaperone, he did undertake a physical examination of a female patient on 2 and 7 August 2012 in the absence of a chaperone;

(c)By unlawfully and indecently assaulting five female patients, Dr Ranjit Kumar Panda breached s 8.2 of the Medical Board of Australia's 'Good Medical Practice: A Code of Conduct for Doctors in Australia' (July 2010 and 17 March 2014); and

(d)By unlawfully and indecently assaulting five female patients, Dr Ranjit Kumar Panda breached the Medical Board of Australia's 'Sexual Boundaries: Guidelines for doctors' (28 October 2011).

2.The Medical Board of Australia is to file and serve written submissions in relation to orders and penalty on the Tribunal and Dr Ranjit Kumar Panda by 25 November 2019.

3.Dr Ranjit Kumar Panda is to file and serve any further written submissions and any supporting evidence in relation to orders and penalty on the Tribunal and the Medical Board of Australia by 16 December 2019.

4.Subject to any further order the matter is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).

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

MS C WALLACE, SENIOR MEMBER

4 NOVEMBER 2019

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT:   HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) 2010

CITATION: MEDICAL BOARD OF AUSTRALIA and PANDA [2019] WASAT 104 (S)

MEMBER:   MS L EDDY, SENIOR MEMBER

DR H HANKEY, SENIOR SESSIONAL MEMBER

MR P MARSHALL, SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   17 MARCH 2020

FILE NO/S:   VR 218 of 2017

BETWEEN:   MEDICAL BOARD OF AUSTRALIA

Applicant

AND

RANJIT KUMAR PANDA

Respondent

Catchwords:

Health practitioner - Medical practitioner - Penalty determined on documents - Turns on own facts

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 323
Health Practitioner Regulation National Law (WA) 2010, s 195, s 196
Interpretation Act 1984 (WA), s 17
State Administrative Tribunal Act 2004 (WA), s 60(2), s 87

Result:

Penalty imposed

Category:    B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Tottle Partners
Respondent	:	N/A

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

Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334

Lal v Medical Board of Australia [2018] WASCA 109

Lee v Health Care Complaints Commission [2010] NSWCA 80

Legal Profession Complaints Committee and Neil [2017] WASAT 48 (S)

Medical Board of Australia and Panda [2019] WASAT 104

Singh v Medical Board of Australia [2019] WASCA 51

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. In November 2019 the Tribunal found that Dr Ranjit Kumar Panda (respondent or Dr Panda) was guilty of professional misconduct on four grounds:  Medical Board of Australia and Panda [2019] WASAT 104 (Panda No. 1).  Those grounds were that:

   (a)Dr Ranjit Kumar Panda committed eight offences of unlawful and indecent assault against female patients, contrary to s 323 of the Criminal Code Act Compilation Act 1913 (WA).

   (b)In breach of a condition imposed on Dr Ranjit Kumar Panda's registration on 31 January 2012 which prohibited him from conducting physical examinations of a female patient in the absence of a chaperone, he did undertake a physical examination of a female patient on 2 and 7 August 2012 in the absence of a chaperone.

   (c)By unlawfully and indecently assaulting five female patients, Dr Ranjit Kumar Panda breached s 8.2 of the Medical Board of Australia's 'Good Medical Practice: A Code of Conduct for Doctors in Australia' (July 2010 and 17 March 2014).

   (d)By unlawfully and indecently assaulting five female patients, Dr Ranjit Kumar Panda breached the Medical Board of Australia's 'Sexual Boundaries:  Guidelines for doctors' (28 October 2011).

2. The Tribunal further ordered that the parties file and serve written submissions and any supporting evidence in relation to penalty and that the issue of the appropriate penalty was to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The date stated for the filing of submissions and evidence was initially 16 December 2019. Later, this was extended to 9 December 2019. In January 2020 Dr Panda lodged some additional documents, explaining that he had received these on 6 January 2020 and could not have provided them earlier. The Tribunal gave Dr Panda leave to rely on these documents. On 7 February 2020, Dr Panda lodged with the Tribunal his 'final submission'. The Medical Board of Australia (applicant or Board) objects to the Tribunal receiving the documents lodged on 7 February 2020.

1. The documents lodged on 7 February 2020 allege that there has been historical conflict between Dr Panda and a member of the Board.  He also alleges that many false complaints have been made against him because he refused to prescribe opioids to patients.  Further, the criminal injuries compensation scheme means that alleged victims are willing to make up complaints in order to receive compensation.  Dr Panda states that he is innocent of the charges and that he was assaulted while in prison resulting in a loss of two teeth.  Dr Panda submits that he has been punished enough and requests that no penalty be imposed against him. 

2. In light of the findings of the Tribunal as to the conduct committed by Dr Panda, the submissions and supporting documents sought to be relied upon by him are largely irrelevant to the determination of the appropriate penalty.  The allegations in relation to the historical conflict with a member of the Board is also not relevant as the penalty decision is to be made by the Tribunal and not by the Board.  To the extent that Dr Panda submits that he has been punished enough by having been in prison and by having been assaulted, these are potentially personal circumstances that can be taken into account.  Although Dr Panda had the assistance of a pro bono counsel, Dr Panda says that he did not have representation at the time he sent in the additional documents in January and February of 2020.  In the circumstances, the Tribunal considers it is appropriate to accept his late submissions and will have regard to them on this limited aspect.

3. The documents before the Tribunal in relation to penalty are as follows.

   (a)Applicant's bundle of documents filed on 10 December 2019 (applicant's documents).

   (b)Applicant's submissions on penalty and costs filed on 9 December 2019 (applicant's submissions).

   (c)Respondent's supplementary submissions for penalty hearing on the papers filed on 6 January 2020 (apparently prepared with the assistance of counsel) (respondent's submissions).

   (d)Respondent's supplementary index of documents for penalty hearing on papers (which does attach the documents identified in the index) filed on 6 January 2020 (apparently prepared with the assistance of counsel) (respondent's submissions).

   (e)Submission on behalf of respondent, filed on 14 January 2020 (apparently prepared without the assistance of counsel) (respondent's supplementary submissions).  In those submissions, it is stated that the respondent also relies on the outline of submissions filed on 4 October 2019 together with Dr Panda's affidavit sworn 4 October 2019.  Those documents are also before the Tribunal.

   (f)Respondent's financial counsellor's report filed on 16 January 2020 (respondent's supplementary document).

   (g)Respondent's final submission for penalty, sent to the Tribunal on 7 February 2020 (respondent's further supplementary submissions).

4. The applicant submits that the appropriate orders as to penalty and costs are (applicant's submission, para 3):

   The applicant submits that the following orders as to penalty and costs are appropriate in the circumstances of this case:

   (a)either:

   (i)the respondent's registration is cancelled, pursuant to section 196(2)(e), of the National Law; or

   (ii)there is a finding that, had the respondent been registered as a medical practitioner pursuant to the National Law, the Tribunal would have cancelled his registration, pursuant to section 196(2)(e) of the National Law;

   (b)the respondent is disqualified from applying for registration as a medical practitioner for a period of 1 0 to 12 years from the date of the Tribunal's final orders pursuant to section 196(4)(a) of the National Law.

   (c)pursuant to section 196(4)(b) of the National Law, the respondent is prohibited from using the title "doctor" or providing any health service unless and until the respondent is returned to the register of health practitioners under the National Law;

   (d)the respondent is reprimanded pursuant to section 196(2)(a) of the National Law;

   (e)the respondent is to pay the applicant's costs of these proceedings, to be fixed by the Tribunal if not agreed, pursuant to section 195 of the National Law, or alternatively pursuant to section 87(2) of the State Administrative Tribunal Act 2004 (WA).

5. The applicant further submits that in the circumstances of this matter, a global penalty is appropriate.  The applicant submits that a number of discipline orders made in a number of similar cases are relevant and of assistance to the Tribunal and provided a table of those cases with a summary of the conduct, mitigating factors and the penalties imposed.

6. The respondent's submissions may be summarised as follows.

7. The respondent has extensive qualifications that render him an asset to the practice of medicine in Australia and make it appropriate that his skills as a medical practitioner should be available to the public.  Dr Panda has provided evidence of his good standing in the medical community and he has practised medicine over a 35 year career with no evidence of any complaint about his competence or any complaints other than the matters that are the subject of these proceedings. 

8. Dr Panda maintains that he is innocent and he believes that he has been falsely accused.  He did, wherever possible, use a chaperone as required by the condition imposed on him, however it was not always possible to have a chaperone available due to the constraints of the practice where he was employed.  It is submitted that these latter two submissions do not reflect a lack of insight into his conduct, but rather reflect his unwavering insistence that he was falsely accused and wrongly convicted.

9. Dr Panda submits that 'there can be no question of punishing' him in the present proceedings:  respondent's submission, page 4, para (c).  He submits that the Tribunal cannot be satisfied that he is permanently or indefinitely unfit to practise medicine.  Dr Panda does not seek to have the issue of his guilt retried in these proceedings, but rather says that the Tribunal may permit his reinstatement as a registered medical practitioner on the basis that the convictions were a product of a 'different era' and the conduct did not demonstrate continuing unfitness to practise.

10. The respondent submits that a period of suspension is the appropriate penalty in all of the circumstances, because the Tribunal should be satisfied that after a period of suspension, Dr Panda would be fit to resume practice.  His fitness to resume practice is supported by Dr Panda's clinical psychologist.  Dr Panda is willing to accept conditions imposed upon his registration in order to avoid any doubt about the need to protect the public and this further militates against the need to cancel his registration.

11. Finally, it is submitted that a period of suspension of two years is the appropriate penalty.  The Tribunal should take into account the period for which his registration has already been suspended and the fact that Dr Panda has in that period taken active steps to improve his knowledge.  Therefore the period of suspension should have regard to that starting point.  If one also takes into account the period of three years of imprisonment, and the assault Dr Panda suffered whilst in prison, there should be no penalty imposed on Dr Panda by the Tribunal in these proceedings.

12. In the alternative, if the Tribunal determines that Dr Panda's registration should be cancelled, he ought to be able to continue to use the title 'Doctor' and, if protection of the public and general deterrence require a punishment to be imposed, the appropriate penalty is the imposition of a fine.

13. In relation to costs, Dr Panda submits that he has no means to pay any costs that he might be ordered to pay, but otherwise does not make any further submission. 

14. In the respondent's submissions, Dr Panda submits that it would be appropriate that he be reprimanded, that he complete further training courses in relation to appropriate patient boundaries, that conditions be imposed on his registration and that he be disqualified from applying for registration for a period of seven years from when his registration was first suspended on 24 August 2012.

15. In his supplementary submissions, Dr Panda strongly submits that no penalty should be imposed upon him in these proceedings, although he accepts that his registration may be subject to 'any reasonable probationary conditions which may be seen as prudent from an external perspective':  respondent's supplementary submissions, para 15.

The applicable law

1. The application before the Tribunal seeks orders to be made under s 196(1) of the Health Practitioner Regulation National Law (WA) 2010 (National Law).  The powers of the Tribunal having decided that Dr Panda by his conduct behaved in a way that constitutes professional misconduct, may decide to do one or more the things specified in s 196(2) to s 196(4) of the National Law.  That provision provides:

   (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.

2. Section 195 of the National Law provides to the Tribunal a power to award costs:

   The responsible tribunal may make any order about costs it considers appropriate for the proceedings.

3. The Tribunal's power to award costs in proceedings is also provided for in s 87 of the SAT Act:

   (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.

4. The applicable legal principles have been summarised by the Tribunal many times, and one such summary was recently expressly approved by their Honours Quinlan CJ and Pritchard J (WA) in Singh v Medical Board of Australia [2019] WASCA 51 at [26] (Singh). 

5. In Singh, Quinlan CJ and Pritchard J also expressly approved the reference to principles arising out of cases relating to the regulation and discipline of legal practitioners as relevant to the regulation and discipline of medical practitioners:  Singh at [27]. However, it is necessary to keep in mind the institutional and functional differences between the two professions: Singh at [28] citing Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 at [4]-[5]. The principles to the regulation and discipline of both legal and medical practitioners were identified by Quinlan CJ and Pritchard J in Singh at [30]-[39]:

   30First, it is well established that the purpose of disciplinary proceedings is to protect the public and not to punish the practitioner, in the sense in which punishment is imposed under the criminal law.  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.  

   31This principle was usefully set out, in the case of a medical practitioner, in Craig v Medical Board of South Australia:

   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.

   32Secondly, 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 their conduct and to the need to deter the practitioner from future breaches.  So too, as Doyle CJ observed in Craig v Medical Board of South Australia, 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'.

   33Thirdly, as 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.   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.

   34Fourthly, of particular significance in any given case will be whether the findings of misconduct reveal that a person is unfit to practise their profession.  In Khosa v Legal Profession Complaints Committee, Murphy and Beech JJA discussed this consideration in the context of disciplinary proceedings against legal practitioners and said:

   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)

   35These principles may, in a qualified way, be applied by analogy to medical practitioners.

   36As Khosa demonstrates, in the context of legal practitioners, a choice may often arise between suspension and striking off (i.e. removing the practitioner's name from the roll of practitioners).  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.  The analogy is not, however, perfect.  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.

   37Nevertheless, the approach identified by Murphy and Beech JJA in Khosa v Legal Profession Complaints Committee in our view 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, it may be 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'.

   38On this approach, permanent or indefinite unfitness to practice (at least ordinarily) will be a sufficient basis for cancelling the practitioners' registration.  It must be recognised, however, that permanent or indefinite unfitness to practice, is not a necessary condition for cancellation.  As the Court in Chen v Healthcare Complaints Commission recognised, the National Law does not elevate any consideration relevant to the power to cancel registration to the status of a precondition to that power. 

   39As Basten JA stated in Chen v Healthcare Complaints Commission:

   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.

   (Original emphasis, citations omitted)

1. If comparing penalties imposed in similar cases, care has to be taken before assuming that the disciplinary orders in one case should be regarded as indicting what disciplinary orders should be made in another case:  Lee v Health Care Complaints Commission [2010] NSWCA 80 at [34].

2. 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:  Lal v Medical Board of Australia [2018] WASCA 109.

Application of the principles in the present case

1. To the extent that the parties have provided documents to the Tribunal that convey or infer additional or different facts in relation to the conduct the subject of these proceedings to those found by the Tribunal in Panda No. 1, the Tribunal has not had regard to those facts.

2. Dr Panda's registration was suspended by the Board in August 2012 and it expired in September 2013.

3. The Tribunal has already determined that because he committed the conduct as found by the Tribunal, he had acted substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training, had done so on more than one occasion, and that conduct was inconsistent with Dr Panda being a fit and proper person to hold registration in the profession:  Panda No. 1 at [64]. It also found that Dr Panda's conduct was a 'most grave departure from the standard reasonably expected of a registered health practitioner': Panda No. 1 at [65]. The Tribunal also determined that Dr Panda repeatedly breached a condition placed on his registration in order to protect the public, by attending to female patients without a chaperone. Dr Panda was also deceitful by representing that he was providing a medical service where he had no intention of providing any medical procedure or examination: Panda No. 1 at [69].

4. The Tribunal concludes, based on those findings, that if Dr Panda currently was a registered medical practitioner, the only appropriate penalty available would have been to cancel his registration. 

5. While some nine years have elapsed since the conduct was committed, there is little in any of the documents submitted by            Dr Panda or in his submissions that conveys any insight, remorse, understanding or other indication of any character change since the time he committed the conduct, so as give cause to any consideration as to whether he is, at this moment, something other than not a fit and proper person to hold registration in the medical profession as was the case at the time he committed the conduct. 

6. Clinical Professor Mark Newman (Prof Newman) provided a character reference on Dr Panda's behalf, dated 30 September 2019.      In that reference, Prof Newman said he was aware that 'he was convicted of crimes relating to inappropriate treatment of some female patients'.  Prof Newman did not make any statements that show that he fully understood the nature and extent of the charges that were laid against Dr Panda.  Prof Newman bases his conclusions on his working relationship in a different professional setting to the type of setting in which the conduct occurred.  He also bases his conclusion on seeing Dr Panda four times in 2015 and on six occasions since his release from prison.  Prof Newman does not include any detail about what occurred on the occasions when they met, how long those meetings were or any of the context in which the meetings happened.  The Tribunal is not persuaded that it should place any weight on the statements by          Prof Newman in that character reference.

7. Mr Kurt Jennings, a registered clinical psychologist who has provided his professional services, by way of treatment and support, to Dr Panda, provided a statutory declaration to the Tribunal.  Mr Jennings has been providing psychological treatment and assessment services for a considerable period of time and has a range of expertise within his field.  To the extent that Mr Jennings offers his opinions about the conduct the subject of findings already made by the Tribunal, the Tribunal does not have any regard to those opinions.  In any event, the Tribunal would have place minimal weight on Mr Jennings' opinion in circumstances where his opinions went to a substantive issue in dispute between the parties and, at the conduct hearing, he was not made available for cross-examination.  Having said that, it appears that the conduct findings were determined on the papers and it is not apparent whether or not the applicant requested that he be made available for cross-examination, so this point does not have any substantive impact on the weight to be given to this evidence in this case.  The Tribunal has doubt about the ability of a professional who has treated a person and developed a therapeutic relationship, who then purports to give 'independent' objective opinion evidence about that person, to be able to be truly independent and unaffected by the therapeutic nature of the relationship.

8. The Tribunal has some correspondence from Mr Mecurio Cicchini, a clinical psychologist who has also been involved over a reasonably substantial period of time in treating Dr Panda.  Mr Cicchini outlines some of the psychological difficulties Dr Panda has suffered and suggests that Dr Panda has been punished sufficiently.  To the extent that Mr Cicchini outlines Dr Panda's suffering, this is a personal circumstance that the Tribunal can and does take into account in determining the appropriate penalty in all of the circumstances.  To the extent that Mr Cicchini offers opinions as to the likelihood of Dr Panda behaving in any way similar to the conduct the subject of these proceedings if here were to be registered to practice in the medical profession, the same comments as were made in relation to Mr Jennings' opinions apply.  The Tribunal gives minimal weight to those opinions.

9. Ms Katie-Lee Ogden, and her mother Ms Erica-Lee Smith, provided statements in relation to an experience Ms Ogden had when she saw Dr Panda as a patient on an occasion on an unknown date.  That material contains nothing of relevance to the disposition of the appropriate penalty in this matter.  Her experience of Dr Panda's conduct on an unknown date in the past (presumably before August 2012) cannot have any bearing on whether Dr Panda is currently a fit and proper person to hold registration in the medical profession.

10. The same may be said of the email from Ms Liane Shippin, another ex­patient of Dr Panda's.

11. The Tribunal accepts, as is asserted by Dr Panda, that he currently has a very limited income that is all allocated to necessary expenses for his daily living needs, and that he has no savings or assets.

12. The Tribunal also accepts that Dr Panda has been punished in the criminal legal system for his conduct.  In addition, the Tribunal accepts that Dr Panda suffered through his imprisonment in general, and in particular when he was assaulted whilst imprisoned.  These personal matters are relevant, to a degree, to the appropriate penalty in this case.

13. The Tribunal has already found that Dr Panda's conduct occurred over a significant period of time and represented a course of conduct.

14. Dr Panda does not have any insight into his conduct nor does he show any remorse.  He submits that he should be allowed to practise again, and that he could be made subject to a chaperone condition.  The Tribunal has already determined that Dr Panda did not comply with a previous chaperone condition.  In any event, the Tribunal finds that Dr Panda is not, currently, a fit and proper person to practise medicine, and so the question of whether Dr Panda would comply with a chaperone condition does not arise for consideration. 

15. The protection of the public requires that Dr Panda be prevented from being able to apply for re-registration to practise medicine while he remains a person who is not a fit and proper person to practise medicine.  There is also a need for general deterrence; an indication of how unacceptable the Tribunal finds conduct of this kind by a registered medical practitioner.  The lack of insight and the lack of appreciation of the impropriety of his conduct raises what the Tribunal finds to be a real risk of Dr Panda committing conduct of a similar type, were he allowed to practise medicine.

16. The Board seeks an order that the Dr Panda be prohibited from using any titled or a specified title or providing any health service or a specified health service pursuant to s 196(4)(b) of the National Law.  The text of s 196(4) of the National Law, as can be seen from above, provides an 'or' between paragraphs (a) and (b) of that section.  It also uses 'or' between the subparagraphs of paragraph (b).  According to s 17 of the Interpretation Act 1984 (WA), subject to the contrary being expressed in the statute under consideration, 'or' must be constructed disjunctively.  This is not an issue that was canvassed by the parties in their submissions, so it would not be appropriate to determine the issue at this point in time.  The Tribunal assumes, without finding positively, that there is a contrary intention that can be inferred into s 196(4) of the National Law and it would be possible to make orders under paragraph (a) and (b) despite the use of the word 'or'.  However, in this case the Tribunal is not minded to exercise its discretion to make the order sought by the Board under s 196(4)(b) of the National Law.  This is because the Tribunal has made a finding that, if his registration not already been suspended and then lapsed, it would have ordered that his registration be cancelled.  It has also determined that Dr Panda is not able to apply for registration for a considerable period of time.  He is therefore not able to practice medicine.  There is no evidence before the Tribunal to suggest that Dr Panda has, or is likely to, seek to work in any other health related profession or other employment.  In light of     Dr Panda's convictions, it seems doubtful that any potential employer would consider Dr Panda an appropriate person to engage in any such profession or employment.

17. The Tribunal considers that, based on Dr Panda's personal circumstances, and the punishment he has endured for his convictions, it would be overly harsh to order that Dr Panda not be allowed to use that title.  It may be that the National Law otherwise would prevent him using the title when he is not registered to practice medicine, but if not, the Tribunal is not persuaded it is necessary to protect the public, or for any other reason, to prevent him from using the honorific.

18. In this case the Tribunal considers that a global approach to penalty is appropriate.  The conduct amounted to a course of conduct over a lengthy period and involved substantially similar behaviour by Dr Panda on each matter.

19. The Tribunal has found that Dr Panda's fitness to practise medicine has not changed in the 12 year period since the conduct occurred.  Having regard to that, as well as to the nature of the conduct, and the need to protect the public, the Tribunal considers that Dr Panda should be disqualified from applying for registration as a medical practitioner for a period of ten years.

20. Finally, the Board seeks that a Dr Panda be reprimanded for the conduct in addition to the other disciplinary outcomes.  The Tribunal is not entirely clear why a reprimand, which is a relatively minor sanction, should be added where the more serious disciplinary sanction had been determined to be appropriate.  However, both parties agree that a reprimand is an appropriate penalty and the Tribunal has not heard submissions about whether or not the available sanctions are in fact in ascending seriousness or are simply all options available to the Tribunal to consider in any matter, and therefore the Tribunal finds that it is appropriate for Dr Panda to be reprimanded in addition to the other disciplinary sanctions that the Tribunal has found are appropriate in all of the circumstances.

Costs

1. As indicated above, s 195 of the National Law provides that the Tribunal may make any order about costs it considers appropriate for the proceedings.

2. There does not appear to have been any consideration in the Tribunal as to whether this provision alters the usual starting position in relation to costs in the Tribunal as dictated by s 87 of the SAT Act. As neither of the parties made any submissions in relation to this question, the Tribunal considers that it is not appropriate to address that question in this matter.

3. In Legal Profession Complaints Committee and Neil [2017] WASAT 48 (S) at [79]-[80], the Tribunal summarised its usual approach to the question of costs in disciplinary matters as follows:

   The Tribunal's approach and practice in relation to costs in vocational disciplinary proceedings costs was summarised in Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S); (2012) 80 SR (WA) 194 (in de Braekt) at [51] as follows:

   Although s 87(1) of the SAT Act contemplates that, generally, parties bear their own costs in proceedings before the Tribunal, s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party. The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Committee, will usually result in an order for costs being made in favour of the vocational regulatory body: Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) at [30] referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35]. The policy basis behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented': Roberman at [30].

   Despite what the Tribunal stated in in de Braekt, every case must be considered individually on its merits bearing in mind s 87 of the SAT Act. There is no presumption that a disciplinary body will be awarded costs if successful.

4. The applicant has submitted a Bill of Costs and is seeking that Dr Panda be ordered to pay $137,609.78, which is the amount it has paid in legal costs and in disbursements in dealing with this matter.  The Tribunal is persuaded that it would be fair and reasonable for the respondent to be ordered to pay his reasonable costs of the proceedings in the Tribunal.  Dr Panda defended the proceedings and, at very late notice, sought adjournments of the conduct hearing on a number of occasions.  However, the Tribunal is not persuaded that the applicant is entitled to indemnity costs.  Dr Panda was entitled to defend the proceedings, and the adjournments were apparently required because of Dr Panda's ill health. 

5. Although not much weight is placed on it, the Tribunal does have regard to the fact that Dr Panda is not in a position to pay the applicant's costs.  It is likely that, in effect, any costs order will be nugatory.

6. The Tribunal finds that it is fair and reasonable for the respondent to pay the applicant's disbursements of $27,440.63.  From the Tribunal's records, it seems that there were seven 'hearings' of one type or another listed.  Ultimately, both the conduct and the penalty determinations have occurred without any oral hearing.  Allowing for a reasonable amount of preparation for hearings that were listed and adjourned at late notice, and applying scale costs, the Tribunal considers that an additional $20,000 for the applicant's costs would be a fair and reasonable amount to require the respondent to pay.

Orders

1. The Tribunal orders:

   1.The respondent is reprimanded pursuant to section 196(2)(a) of the National Law.

   2.The respondent, Dr Ranjit Kumar Panda, is disqualified from applying for registration as a medical practitioner for a period of ten years from the date of this order.

   3.The respondent, Dr Ranjit Kumar Panda, is to pay the applicant's costs and disbursements of these proceedings fixed at $47,440.63.

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

MS L EDDY, SENIOR MEMBER

17 MARCH 2020