Nadkarni v Medical Board of Australia - [2022] WASCA 109

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   NADKARNI -v- MEDICAL BOARD OF AUSTRALIA [2022] WASCA 109
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   14 FEBRUARY 2022
DELIVERED          :   24 AUGUST 2022
FILE NO/S:   CACV 87 of 2021
BETWEEN:   SANJAY NADKARNI
Appellant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: JUDGE K GLANCY, DEPUTY PRESIDENT
MR R POVEY, MEMBER
MS K JEFFERIES, SENIOR SESSIONAL MEMBER

File Number : VR 132 of 2019

Catchwords:

Professions and Trades - Medical practitioner - Disciplinary proceedings before State Administrative Tribunal - Findings that appellant engaged in professional misconduct - Appellant practised as an interventional radiologist - Appellant also practised separately 'wellness' or 'anti‑ageing' medicine - Professional misconduct occurred in the appellant's practice of 'wellness' or 'anti‑ageing' medicine - Appellant prescribed certain drugs or substances to patients where there was no therapeutic indication or clinical justification basis for doing so - Appellant ordered blood tests without any proper or adequate consideration as to the necessity of those tests - Appellant failed to record in his notes the substances he prescribed to certain patients - Appellant failed to take an appropriate medical history and conduct an appropriate examination when consulting certain patients - Tribunal suspended the appellant's registration as a medical practitioner for a period of 20 months - Tribunal ordered that, before resuming practice as an interventional radiologist, the appellant must satisfy the Medical Board of Australia that he has the clinical skills that will allow him to do so safety - Whether the Tribunal's decision to suspend the appellant's registration as a medical practitioner for a period of 20 months was unreasonable or plainly unjust - Whether the Tribunal's imposition of the condition that, before resuming practice as an interventional radiologist, the appellant must satisfy the Board that he has the clinical skills that will allow him to do so safety, was beyond the powers of the Tribunal, alternatively was unreasonable or plainly unjust

Legislation:

Health Practitioner Regulation National Law
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
State Administrative Tribunal Act 2004 (WA)

Result:

Leave to appeal granted
Appeal allowed
Orders 2 and 3(c) made by the Tribunal set aside
Substitutive orders made

Category: B

Representation:

Counsel:

Appellant	:	Mr D Grace QC & Mr D J Pratt
Respondent	:	Mr G P Bourhill SC

Solicitors:

Appellant	:	Minter Ellison
Respondent	:	Russell Kennedy Pty Ltd

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

Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; (1970) 123 CLR 490
Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545
Ellul v Fauser (1981) 28 SASR 300
Guss v Law Institute of Victoria Ltd [2006] VSCA 88
Health Care Complaints Commission v Do [2014] NSWCA 307
Health Care Complaints Commission v Epstein (No 2) [2015] NSWCATOD 36
Health Care Complaints Commission v Epstein [2015] NSWCATOD 21
Health Care Complaints Commission v Zacharia, unreported, NSW Medical Tribunal, 20 December 2011
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library No 920584
Law Society of New South Wales v McNamara (1980) 47 NSWLR 72
Medical Board of Australia and Nadkarni [2021] WASAT 123
Medical Board of Australia and Singh [2017] WASAT 33
Medical Board of Australia and Singh [2017] WASAT 33 (S)
Medical Board of Australia v Grant [2012] QCAT 285
Medical Board of Australia v Hadges [2018] SAHPT 6
Medical Board of Australia v Marzola [2020] SACAT 116
Medical Board of Australia v Owen [2021] SACAT 7
Medical Board of Australia v Tunbridge [2020] SACAT 34
Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Papps v Medical Board of South Australia [2006] SASC 234
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Quinn v Law Institute of Victoria Ltd [2007] VSCA 122; (2007) 27 VAR 1
Richter v Walton [1993] NSWCA 233
Singh v Medical Board of Australia [2018] WASCA 125
Singh v Medical Board of Australia [2019] WASCA 51
Stirling v Legal Services Commissioner [2013] VSCA 374
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
Young v Legal Profession Complaints Committee [2022] WASCA 52

JUDGMENT OF THE COURT:

The appellant (Dr Nadkarni), who is a medical practitioner, has applied for leave to appeal against a decision of the State Administrative Tribunal (the Tribunal) in relation to disciplinary proceedings brought by the respondent (the Board) against Dr Nadkarni.
In September 2019, the Board lodged an application with the Tribunal in which the Board alleged that there was a proper cause for disciplinary proceedings against Dr Nadkarni under s 193(1)(a)(i) of the Schedule to the Health Practitioner Regulation National Law(WA) Act 2010 (WA) (the HPR Act).
On 28 June 2021, the Tribunal made orders, with the consent of the parties, that, in essence, between about 2010 and 2018 Dr Nadkarni engaged in professional misconduct by:
(a)prescribing certain drugs or substances to patients in circumstances where there was no therapeutic indication or clinical justification basis for doing so, thereby unnecessarily exposing his patients to the risk of adverse effects of those drugs or substances;
(b)ordering blood tests without any proper or adequate consideration as to the necessity of those blood tests, thereby exposing the patients to potential unnecessary testing;
(c)failing to record in his notes the substances he prescribed to particular relevant patients; and
(d)failing to take an appropriate medical history and conduct an appropriate examination when consulting with particular patients.
On 28 July 2021, there was a hearing before the Tribunal in relation to penalty.
On 21 September 2021, the Tribunal published written reasons for decision on penalty[1] and made orders as follow:
[1] Medical Board of Australia and Nadkarni [2021] WASAT 123.
Reprimand
1.Pursuant to s 196(2)(a) of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) the respondent is reprimanded in relation to the professional misconduct referred to in the Tribunal's order dated 28 June 2021.
Suspension
2.The respondent's registration as a medical practitioner is suspended for a period of 20 months with effect from 12.01 am on Saturday, 16 October 2021.
Conditions on registration
3.Pursuant to s 196(2)(b)(iii) of the National Law the respondent's registration as a medical practitioner is subject to the following conditions:
(a)subject to condition B, the practitioner must not prescribe, supply, administer, handle, dispense or access (access), including as emergency treatment supplies or doctor's bag stock, the following substances:
(i) human growth hormone;
(ii)testosterone in any form, including Primoteston Depot or Reandron;
(iii)any steroid with an anabolic and/or androgenic effect, including Danazol;
(iv)any aromatase inhibitor, including anastrozole;
(v)dehydroepiandrosterone (DHEA);
(vi)any stimulants, including phentermine and salbutamol;
(vii)thyroid extract.
(b)Condition (a) does not apply to the respondent's access to salbutamol for administration by inhalation or intravenous infusion for the management of:
(i)acute bronchospasm before or after an interventional radiology procedure; or
(ii)acute asthmatic attack before or after an interventional radiology procedure.
(c)Before resuming practice as an interventional radiologist the respondent must satisfy the applicant that he has the clinical skills that will allow him to do so safely.
(d)Within 21 days notice of the imposition of these conditions, the practitioner must provide to AHPRA:
(i)acknowledgement, on the approved form (HP1), that AHPRA may obtain reports from a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Partner, Proprietor, Owner or equivalent (the senior person) at each and every place of practice on a monthly basis or as otherwise required by the Board or AHPRA;
(ii)acknowledgement, on the approved form (HP1) that, for the purposes of monitoring compliance with the condition restricting access to the medication, AHPRA may contact Medicare and/or drugs and poisons regulatory authorities in relevant states or territories; and
(iii)confirmation, on the approved form (HPS1), from the senior person at each place of practice that they are aware AHPRA will seek reports from them.
Monitoring of compliance with conditions
(e)Within 21 days' notice of the imposition of these conditions, the practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Partner, Proprietor, Owner or equivalent (the senior person), at each current place of practice. In providing this form, the practitioner acknowledges that AHPRA will contact the senior person and provide them with a copy of the conditions on the practitioner's registration or confirm that the senior person has received a copy of the conditions from the practitioner. The practitioner will be required to provide the same form:
(i)within 7 days of the commencement of practice at each subsequent place of practice; and
(ii)within 7 days of each and every notice of any subsequent alteration of these conditions.
Cost of compliance with conditions
(f)All costs associated with compliance with the conditions on his registration are at the respondent's own expense.
Review period
(g)The review period of six months is set for the conditions imposed on the respondent's registration, with the review period to start on 16 June 2023.
On 13 October 2021, Buss P and Mazza JA made, relevantly, these orders:
(1)Until the determination by this court of Dr Nadkarni's appeal (including Dr Nadkarni's application for leave to appeal) or further order of this court, the operation of orders 2, 3(c) and 3(g) of the [Tribunal's] orders dated 21 September 2021 is stayed.
(2)Until the determination by this court of Dr Nadkarni's appeal (including Dr Nadkarni's application for leave to appeal), order 3 (apart from order 3(c) and 3(g)) of the [Tribunal's] orders dated 21 September 2021 operates with effect from 13 October 2021.

Dr Nadkarni's application for leave to appeal is in respect of the Tribunal's order 2 and order 3(c). Grounds 1 and 3 allege in essence that the Tribunal's decision to suspend Dr Nadkarni's registration as a medical practitioner for a period of 20 months was unreasonable or plainly unjust. Ground 2 alleges in essence that the Tribunal's imposition of a condition on Dr Nadkarni's registration as a medical practitioner to the effect that, before resuming practice as an interventional radiologist, Dr Nadkarni must satisfy the Board that he has clinical skills that will allow him to do so safely, was beyond the powers of the Tribunal, alternatively was unreasonable or plainly unjust.
We would grant leave to appeal in respect of Dr Nadkarni's challenge to order 2 and order 3(c). The appeal should be allowed in respect of both orders. The orders must be set aside. This court should make substitutive orders in respect of Dr Nadkarni's professional misconduct.

The relevant provisions of the HPR Act and the Health Practitioner National Law

The HPR Act is concerned with, relevantly, the disciplining of registered medical practitioners and other registered health practitioners.
Section 4(1) of the HPR Act applies the Health Practitioner Regulation National Law (the National Law) set out in the Schedule to the Act as a law of Western Australia.
By s 6 of the HPR Act, the Tribunal is declared to be the 'responsible tribunal' for Western Australia for the purposes of the National Law.
Section 11 of the HPR Act provides that a reference in the National Law to an appeal against a decision is, for an appeal to the Tribunal as the responsible tribunal, a reference to a review of the decision as provided under pt 3 div 3 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act).
Section 3(1)(a) of the National Law states that the object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners. Section 3(2)(a) provides that the objectives of the national registration and accreditation scheme include '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'. By s 3(3)(c), the guiding principles of the national registration and accreditation scheme include the imposition of restrictions on the practice of a health professional under the scheme only if it is necessary to ensure health services are provided safely consistent with best practice principles.
By s 4 of the National Law, an entity that has functions under the National Law must exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3.
Section 193(1)(a)(i) of the National Law provides that a 'National Board' (which, relevantly, includes the Board) must refer a matter about a registered health practitioner to a 'responsible tribunal' if the Board reasonably believes, based on a notification or for any other reason, the practitioner has behaved in a way that constitutes 'professional misconduct'.
The expression 'professional misconduct' is defined in s 5 of the National Law 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 expression 'unprofessional conduct' is defined in s 5 of the National Law to mean, relevantly, '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'.
By s 194 of the National Law, the parties to proceedings relating to a matter being heard by a responsible tribunal are, relevantly, the registered health practitioner who is the subject of the proceedings and the Board.
Section 196(1) of the National Law provides that, 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 (s 196(1)(a)); or
(b)one or more of a number of specified conclusions, including that the practitioner has behaved in a way that constitutes unprofessional conduct or professional misconduct (s 196(1)(b)).
By s 196(2) of the National Law, if a responsible tribunal makes a decision referred to in s 196(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.
Section 196(3) of the National Law states that if a responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a 'review period' for the condition. Section 5 states, relevantly, that 'review period', for a condition or undertaking, means 'the period during which the condition may not be changed or removed, or the undertaking may not be changed or revoked, under section 125, 126 or 127'.
Section 196(4) of the National Law provides that if, relevantly, the responsible tribunal decides to cancel the practitioner's registration, the tribunal may also decide to disqualify the practitioner from applying for registration as a registered health practitioner for a specified period or prohibit the practitioner, either permanently or for a stated period, from providing any health service or a specified health service or using any title or a specified title.

The relevant provisions of the SAT Act

Section 8 of the SAT Act provides that the Tribunal has the jurisdiction described in pt 3 of the SAT Act. Part 3 comprises s 13 to s 31.
Section 13(1) states that a provision of an 'enabling Act' that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned. The term 'enabling Act' is defined in s 3(1) to mean 'another Act, or a portion of another Act, under which jurisdiction is conferred on the Tribunal and, if relevant, it includes subsidiary legislation under that other Act'. By s 13(2), in addition to the jurisdiction that an enabling Act gives to deal with a matter, the Tribunal has any jurisdiction that the SAT Act gives in relation to that matter.
By s 14, a matter in which the Tribunal has jurisdiction comes within either its original jurisdiction or its review jurisdiction.
Section 15(1) provides that if the matter that an enabling Act gives the Tribunal jurisdiction to deal with does not involve a review of a decision, the matter comes within the Tribunal's original jurisdiction.
By s 17(1), if the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.
In the present case, the proceedings between Dr Nadkarni and the Board came within the Tribunal's original jurisdiction. The Board was obliged under s 193(1)(a)(i) of the National Law to refer the matter to the Tribunal in that the Board reasonably believed that Dr Nadkarni had behaved in a way that constituted 'professional misconduct'. Section 11 of the HPR Act did not apply because the matter did not involve an appeal against a decision of the Board. In the present case, the HPR Act read with the National Law comprised the enabling Act.
Section 87 of the SAT Act is concerned with costs. Section 87 provides, relevantly:
(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.

Section 105 of the SAT Act is concerned with appeals from the Tribunal's decisions. Section 105 provides, relevantly:
(1)A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
(2)The appeal can only be brought on a question of law.
…
(9)The court dealing with the appeal may -
(a)affirm, vary, or set aside the decision of the Tribunal; or
(b)make any decision that the Tribunal could have made in the proceeding; or
(c)send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may make any order the court considers appropriate.
(10)If the court sends the matter back to the Tribunal under subsection (9)(c), it is to give directions as to whether or not the Tribunal reconsidering the matter is to be constituted by the member or members who made the original decision.
…
(13)Despite subsection (2), if the Tribunal's decision -
(a)is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and
(b)has the effect of depriving a person of the person's capacity to lawfully pursue a vocation,
an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact.
(14)In subsection (13) -
relevant Act means -
(a)an Act specified in Schedule 1, if it is an enabling Act; or
(b)an enabling Act prescribed by the regulations for the purposes of subsection (13).
In s 3(1) of the SAT Act the term 'decision' of the Tribunal is defined to include 'an order, direction, or determination of the Tribunal'.
The National Law is specified in Sch 1 of the SAT Act. The National Law is therefore a 'relevant Act' as defined in s 105(14) of the SAT Act.
In the present case, Dr Nadkarni's appeal may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact. See s 105(13) of the SAT Act read with s 105(2), s 105(14) and the definition of 'decision' in s 3(1).

The Tribunal's reasons including its findings of fact

The Tribunal made these observations in an introduction to its reasons:
(a)Dr Nadkarni was not acting as a radiologist when he engaged in the professional misconduct. Rather, Dr Nadkarni did so in the course of practising 'integrative medicine'. This area of practice is also referred to as 'wellness' or 'anti‑ageing'. Dr Nadkarni accepted that his professional misconduct put his patients' health at risk [3].
(b)Dr Nadkarni had ceased to prescribe the particular substances concerned and was winding up his integrative medicine practice. Dr Nadkarni had also undertaken courses to ensure that he is better informed as to the manner in which proper notes should be taken, better placed to ensure that he is aware of the manner in which a clinical history should be taken and better trained to ensure compliance with prescribing practices [4].
(c)There was no suggestion that Dr Nadkarni's skills and experience in radiology were less than satisfactory. Indeed, his references illustrated Dr Nadkarni's competence as a radiologist and the contribution he makes to that area of medicine [5].
The Tribunal recorded that the conduct engaged in by Dr Nadkarni which constituted professional misconduct was as follows [21]:
(a)from about 2010, Dr Nadkarni commenced prescribing human growth hormone, anabolic androgenic steroids (in various forms), testosterone (in various forms), stimulants (in various forms), anastrozole, dehydroepiandrosterone and thyroid extract to patients in the absence of any proper therapeutic indication or clinical justification for the prescribing of those drugs and substances and unnecessarily exposed his patients to the risk of adverse effects of those drugs or substances;
(b)from December 2012 to July 2017, Dr Nadkarni did not record, within his clinical notes relating to nine patients, all of the substances that Dr Nadkarni had prescribed to those patients;
(c)from June 2014 to January 2017, Dr Nadkarni ordered, in relation to four patients, blood tests without proper or adequate consideration as to the necessity for those blood tests, thereby exposing those patients to potentially unnecessary testing; and
(d)from June 2014 to January 2017, Dr Nadkarni failed to take an appropriate medical history and conduct appropriate examinations when consulting with four patients.
The Tribunal said at [22] of its reasons that it was the conduct referred to at [35] above as a whole that constituted the professional misconduct.
The Tribunal noted that the facts agreed by the parties made clear that Dr Nadkarni's prescribing practices were not isolated to the nine patients in respect of whom there were concerns about the provision of human growth hormone. Rather, the nine cases were a sample of Dr Nadkarni's general approach to prescribing when practising integrative medicine. Dr Nadkarni's general approach to prescribing when practising integrative medicine occurred over a period from about 2010 until some time in 2018. The Tribunal was unable to make a finding about precisely how many patients had been prescribed some or all of the substances. The Tribunal was also unable to make a finding about the total number of prescriptions for each of the offences which Dr Nadkarni had written during that time [23] ‑ [24].
Dr Nadkarni gave evidence that he prescribed the substances for patients who attended his integrative medicine practice and reported feelings of fatigue, low mood or irritability, loss of libido, weight gain, loss of muscle mass or injuries. The Tribunal was unable to make a finding about how many patients were seen by Dr Nadkarni at his integrative medicine practice during the period in question or how many patients reported symptoms of that kind [25].
The Tribunal set out at [27] ‑ [33] of its reasons Dr Nadkarni's qualifications, experience and work arrangements as follows:
Dr Nadkarni:
1.Graduated from the University of Western Australia with a Bachelor of Medicine and a Bachelor of Surgery in 1992.
2.Is registered with the Board as a medical practitioner and holds general registration and specialist registration (Radiology - Diagnostic Radiology).
3.Was awarded a Diploma in Anaesthetics from the Royal College of Anaesthetists (UK) in 1994.
4.Was awarded a Member of the Royal College of Physicians (UK) in 1996.
5.Was awarded a Fellowship of the Royal College of Radiologists in 1999.
6.Was awarded a Fellowship of the Royal Australian and New Zealand College of Radiologists in 2000.
7.Has been a Fellow of the Australian College of Phlebology since 2010.
Dr Nadkarni's primary area of expertise is in interventional radiology and endovascular radiology.
Dr Nadkarni is not a specialist endocrinologist. He holds no formal qualifications in relation to endocrinology.
In 2005 Dr Nadkarni established Endovascular WA. It was his private interventional radiology practice. Through that business Dr Nadkarni carried out:
1.endovascular procedures for the treatment of vascular conditions including varicose veins, pelvic congestion, peripheral arterial disease, varicoceles and uterine fibroids; and
2.interventional radiology for the prevention of diseases and management of pain from various conditions including orthopaedic, podiatric and spinal injuries.
Before establishing Endovascular WA, Dr Nadkarni had been working four days per week at Sir Charles Gairdner Hospital (SCGH) and one day per week at Stirling Radiology. Upon the establishment of Endovascular WA, Dr Nadkarni worked two days per week at that business and three days per week at SCGH. Although Endovascular WA is principally an interventional radiology practice, from between 2005 until 2012 Dr Nadkarni administered botox injections through Endovascular WA.
In 2009 Dr Nadkarni also established another business called New Life Clinic WA. At all relevant times New Life Clinic carried on the business of providing various 'anti-aging' treatments and cosmetic medical services. It was in relation to his work at New Life Clinic that Dr Nadkarni's professional misconduct occurred.
In 2020 Dr Nadkarni commenced another business called Precision Radiology WA. He says, and we accept, that the purpose of the business is to support the procedures which he performs at Endovascular WA and to offer diagnostic radiology services to referring doctors. (footnotes omitted)
Next, the Tribunal noted at [35] ‑ [42] of its reasons Dr Nadkarni's current work arrangements:
Dr Nadkarni's unchallenged evidence which we accept is that he currently works:
a.One day per week (Friday) and is on call one weekend per month at SCGH.
b.Ninety-five per cent of Monday to Wednesday providing interventional and diagnostic radiological services through Endovascular WA and Precision Radiology WA. One Wednesday per month his interventional radiology (through Endovascular WA) is performed at consulting suites at St John of God Hospital Bunbury.
c.Five per cent of Monday to Wednesday performing cosmetic medical injections through New Life Clinic WA.
d.Thursdays performing interventional radiology at the Mount Hospital.
Dr Nadkarni is also on the WA Health Register to assist in a general medicine capacity in case of an outbreak of COVID-19 in Perth or the surrounding regions.
Dr Nadkarni is an Adjunct Clinical Associate Professor at the Curtin School of Medicine. He is not paid in that position, which involves administering examinations to students and in providing placements at Endovascular WA and Precision Radiology to final year medical students. This commitment involves two days per year examining students and 12 - 18 weeks mentoring and teaching.
In addition, Dr Nadkarni provides educational sessions to general practitioners on developments in interventional radiology and has presented seminars at the annual meetings of the Australian College of Phlebology and the Annual Interventional Radiology Society of Australia.
Dr Nadkarni is in the process of winding down the business of New Life Clinic. He says this is because he wishes to focus his interests on diagnostic and interventional radiology and because he no longer wishes to have a dermal therapy business in his 'business portfolio'. Dr Nadkarni's evidence is that New Life Clinic's website, Facebook page and Instagram profile were all deactivated during the week beginning 5 July 2021.
Dr Nadkarni has had to take a leave of absence from SCGH since the findings of professional misconduct were made. He has been informed by the Director of Medical Services that it is likely that he will lose his position at SCGH if his registration is suspended or cancelled.
At all times during his practice at both Endovascular WA and New Life Cosmetics, Dr Nadkarni held himself out to be an interventional radiologist with qualifications in anaesthetics, medicine, radiology and phlebology.
From those facts we find that Dr Nadkarni is a very experienced and highly qualified specialist doctor. He was well aware that prescribing the substances he did, was really the province of endocrinologists and also that the way he was using them to treat symptoms of fatigue, lassitude, poor libido, poor sleep, generalised joint and soft tissue pain and weight gain, was not what the substances were approved for and that they would not have been prescribed by an endocrinologist to a patient presenting with those symptoms. (footnotes omitted)
The Tribunal then recorded at [43] ‑ [46] of its reasons particulars of Dr Nadkarni's involvement with integrative medicine:
Dr Nadkarni's evidence is that he had always had an interest in general medicine and became interested in integrative medicine in about 2005 when patients attending Endovascular WA expressed to him a level of dissatisfaction about the medical treatment they were receiving from their general practitioners for symptoms such as fatigue, lassitude, poor libido, poor sleep, generalised joint and soft tissue pain and weight gain.
Dr Nadkarni's evidence is that he began to investigate available intervention and management options for these presentations in the hope of being able to add an integrative and holistic element to his practice. At about that same time he was attending local workshops on the use of botox and fillers and it was at those events that he met general practitioners who were also practising integrative medicine. His evidence was that synthetic and bio-identical hormones are the mainstay of treatment in integrative medicine and were the subject of workshops and meetings he attended. He was made aware of the existence of the Australian College of Anti-Aging Medicine (A4M) and the American College of Anti-Aging Medicine (A5M) which were offering courses and online education with a focus on symptom management and the use of synthetic and bio-identical hormones to balance and optimise hormone levels. He also became aware of the Australian College of Nutritional and Environmental Medicine.
Dr Nadkarni says, and we accept, that over the next 10 years he attended many courses and conferences for managing the symptoms for which he was prescribing the medications and found all of the information provided 'very convincing' and led him to believe that prescribing the medications in the way he did was clinically justified. In his Supplementary Statement of Evidence, Dr Nadkarni stated:
By 2011, as a result of:
(a)the number of medical practitioners who attended the conferences I attended;
(b)the content of presentations (which included the mechanism of action of the various hormones on body composition, mood, libido, well-being, lethargy and fatigue) and their purported support by what was promoted as current evidence-based literature;
(c)my interpretation of the literature I had read;
I formed the impression that there was genuine science behind the use of synthetic and bio-identical hormones, stimulants and aromatase inhibitors to manage symptoms that the patients the subject of these proceedings presented with. It was this impression that caused me to form a usual practice when providing integrative medicine services to patients which, on reflection, I now regret.
In cross-examination Dr Nadkarni gave evidence to the effect that he understood that endocrinologists, specialists who treat people with hormone irregularities, would not prescribe the substances he had done to patients presenting with the symptoms he was endeavouring to treat. The following exchange between counsel for the Board and Dr Nadkarni took place:
… and I felt - based on having attended these meetings and having some knowledge of these through my studies, I thought at that time it was clinically justified to be offering different treatments and following them up.
So you thought that the patients would be better off having that treatment from you than being referred to an endocrinologist? - - - Not necessarily. They would be referred to endocrinologists but the endocrinologists weren't prepared to offer them any form of treatment for their symptoms.
Well if you have embarked on treating them with hormone therapy, does that not indicate that you decided that they're better off being treated by you than an endocrinologist? - - - Look, I - I mean, it's - it's debatable. I don't think that they're better off being treated by me, but they are getting some form of a treatment that's helping with their symptoms. They come back, they tell you they're feeling better …
We accept Dr Nadkarni's evidence that his prescribing practice was the result of a genuine desire to offer holistic services to patients and a mistaken understanding that there was a clinical justification for prescribing the substances he did. (footnotes omitted)
Dr Nadkarni has no previous disciplinary history.
Dr Nadkarni provided the Tribunal with numerous references as to his character. Each referee had read the agreed facts relating to Dr Nadkarni's professional misconduct. The Tribunal set out in its reasons at [50] ‑ [54] the views expressed by various medical practitioners in relation to Dr Nadkarni's abilities and his contribution to medicine:
The radiologists who have written references for Dr Nadkarni speak of the contribution that Dr Nadkarni makes to this field of medicine, either as a speaker at scientific meetings, [or] through his skills in phlebology and interventional radiology.
Dr Joseph Hockley, Acting Head of Department Vascular and Endovascular Surgery at Sir Charles Gardner Hospital wrote that Dr Nadkarni remains a valuable member of the Vascular team at the hospital. He states:
Were he unable to practice here his loss would be very difficult to cover and would undoubtedly impact on the department's ability to provide its current service.
Country practitioners have written of the benefit that Dr Nadkarni makes to the lives of rural patients because, through Endovascular WA he provides a service to rural patients who have no other local service provider. It is said that not only does he provide a service in the country but that he is flexible in his billing practices and where patients do not have the capacity to be treated as private patients Dr Nadkarni treats them as public patients. The alternative would be having to travel to Perth to be treated as a private patient or having to wait for very long periods of time to be treated in Perth as a public patient. This means that they are seen much more quickly than would be the case if they were to have to wait to be treated as public patients in Perth. Dr Sakarapani says:
Many of my patients have commented to me on the quality of care provided to them by Dr Nadkarni. He is an excellent interventional radiologist with a wide skill set and he provides a very needed service to my rural patients.
Dr Hartley wrote:
If Dr Nadkarni was not able to continue to provide interventional Radiology services in the South West in particular, but also in Perth, a hugely beneficial pathway of management with [sic] be lost to not only myself, but all of the referring GPs in the South West region.
Doctors who refer patients to Dr Nadkarni have written of his vast experience in the diagnosis and management of musculoskeletal and chronic pain, varicose vein ablation and management of pelvic pain. (footnotes omitted)
The Tribunal made these findings of fact:
(a)Dr Nadkarni had ceased to practise integrative medicine [57].
(b)Dr Nadkarni no longer prescribes the substances the subject of the disciplinary proceedings [57].
(c)Dr Nadkarni no longer orders blood tests for patients without first examining and assessing the patient personally [57].
(d)Dr Nadkarni is genuinely remorseful for his professional misconduct [58].
(e)Although Dr Nadkarni's agreement to the characterisation of his conduct as professional misconduct came 'late in the piece', Dr Nadkarni's insight into the risks to which he exposed his patients by his prescribing practices and Dr Nadkarni's remorse are genuine [60].
(f)Dr Nadkarni had completed training in relation to the keeping of adequate notes and records [62].
(g)As a result of an online course he had completed, Dr Nadkarni realised that his historical note keeping had been substandard on occasions in particular respects and that he had failed to record clearly in his notes the medications he had prescribed for his patients [62].
The Tribunal rejected the Board's submission that the Tribunal could be satisfied that, in prescribing the substances as he did, Dr Nadkarni created a market for the substances [64] ‑ [69].

The Tribunal said that it had reviewed a number of previous cases in which penalties had been imposed on medical practitioners by tribunals in other Australian jurisdictions. The Tribunal concluded that the facts of each case were different and that there was no tariff for professional misconduct of the kind engaged in by Dr Nadkarni [72]. The Tribunal added that there were, however, some common features of penalties that were apparent from the previous cases, namely:
(a)the penalty included a reprimand in all cases;
(b)where cancellation of the practitioner's registration had not been imposed, suspension had been imposed in almost all cases;
(c)in most cases, a condition restricting the practitioner from prescribing the substances involved in their misconduct had been imposed; and
(d)in many cases, the practitioner had been required to permit the auditing of their practice at their own expense [73].
The Tribunal was of the view that Dr Nadkarni's failure to keep proper medical records in respect of some of his patients and his ordering of blood tests without first seeing the patients were serious features of his conduct [76] ‑ [77]. The Tribunal then said that Dr Nadkarni's prescribing of substances which are known to bring with them the risk of serious harm to patients, without any therapeutic justification, was a serious example of conduct of this kind. The Tribunal elaborated [79]:
The fact that a doctor of Dr Narkarni's [sic] experience, would prescribe such substances, without therapeutic justification, to many (albeit an unknown number of) patients over a lengthy period of time, thereby exposing those patients to risks of serious adverse consequences is a serious example of professional misconduct. That misconduct was compounded by the other failings which Dr Nadkarni has admitted in these proceedings.
Finally, at [83] ‑ [98] the Tribunal made these observations, by way of explanation or support, for making the orders we have reproduced at [5] above:
First, as we have said, we have come to the view that Dr Nadkarni's professional misconduct is to be characterised as a serious example of its kind.
Second, we have come to the view that protecting the public by deterring Dr Nadkarni from behaving in this manner in the future is not the most significant feature of the penalty to be imposed in this case because:
1.we have found that Dr Nadkarni has insight into the risks to patients caused by his behaviour and is remorseful and is therefore unlikely to repeat the conduct for which the penalty is being imposed;
2.we accept that Dr Nadkarni was truthful in his statement that he has ceased practising integrative medicine and intends now to focus on providing diagnostic radiological services and interventional radiological services; and
3.we have found that Dr Nadkarni has completed courses in prescribing, in relation to pathology tests, both ordering and interpreting and in respect of patient notes and record keeping which should address the deficiency in his conduct in respect of those matters.
Third, we have formed the view that the protection of the public from the possibility of a repeat of Dr Nadkarni's misconduct (if we do not cancel his registration and impose a period of disqualification) could be addressed by imposing conditions upon his registration which restrain him from prescribing the particular substances the subject of these proceedings or substances of the like type.
Fourthly, we have come to the view that, in addition to the issuing of a reprimand, a period of suspension or disqualification is required in order to mark the seriousness of Dr Nadkarni's professional misconduct. Nothing less would, in our view, suffice in circumstances where a doctor of such extensive training and experience, who should be expected to have known better as a result of that training and experience, has put patient safety at risk over an extensive period of time by his misconduct.
Fifthly, the protection of the public by the imposition of a sanction which should act as a deterrence to others who may consider embarking on the same kind of behaviour is only likely to be achieved by the imposition of a term of suspension or cancellation of his registration. If a specialist with as much training and experience as Dr Nadkarni, who must understand the importance of evidence based medicine, can come to regard the prescribing of these substances to patients presenting with the problems Dr Nadkarni thought he was alleviating, even knowing that specialist endocrinologists would not do so, then other practitioners may be at risk of similar misconduct. There is, therefore, a heightened need for general deterrence in the penalty to be imposed on Dr Nadkarni.
Sixthly, we consider that in the circumstances, the need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions is an important factor in imposing a penalty. The public is entitled to expect that their doctors will treat their symptoms based upon evidence-based medicine. The fact that someone as experienced as Dr Nadkarni could regard his prescribing practice as justified, speaks to the need to deter others from following in his footsteps and to ensure the public, who repose a great deal of trust in practitioners by reason of their supposed skill, training and expertise, can be confident in their treatment.
Seventhly, while Dr Nadkarni's conduct fell below the high standards which are to be expected of someone of his profession, we do not find that he lacks the character and trustworthiness necessary to discharge the responsibilities of his profession such that he should be assumed to be permanently or indefinitely unfit to be registered.
Eighthly, while we have regard to the fact that Dr Nadkarni is the sole breadwinner for his young family and that any period of disqualification or suspension will almost inevitably have an impact upon that family, we have already referred to the general principle that personal hardship which may be suffered by the practitioner and his or her family is a secondary consideration in matters of this kind. There is nothing in the material which was provided to us that would suggest any hardship would be exceptional in nature.
Ninthly, Dr Nadkarni's evidence is that if he were to be suspended from practice for a period of more than six months, the staff he employs will be likely to lose their jobs. We give that issue no weight in determining penalty. As regrettable as that consequence may be, having regard to the purposes of imposing penalties under the National Law we cannot be influenced by that consideration. The appropriate penalty in this case cannot be moderated to ensure that Dr Nadkarni's employees' employment is maintained.
Tenthly, while it is also inevitable that the loss, temporary or otherwise, of Dr Nadkarni's provision of radiological services which will flow from a period of suspension will inconvenience SCGH and likely cause delays in some country patients receiving affordable medical treatment, there is nothing in the materials before us that would allow us to form the conclusion that Dr Nadkarni is possessed of special and exceptional skills which are so limited within the medical community in Western Australia that notwithstanding that the behaviour would otherwise warrant a period of suspension or disqualification, a different course should be taken in his case to ensure that his skills and expertise is not lost to the public.
Finally, Dr Nadkarni has expressed some concern that if he is unable to practice in his area of specialty for any significant period of time the result may be that he loses the skills essential to the practice of interventional radiology which requires precision in the injecting of veins which is both attained and maintained by regularly doing so. We acknowledge that risk exists. It may be that some refresher training or a period of supervision will be required following Dr Nadkarni's return to practice to ensure that he remains sufficiently skilled. In our view, the risk can be adequately addressed by other means.
Having had regard to all of these matters, in particular that there was no dishonesty or incompetence of a kind that would render him permanently unfit to practise in his profession, we have come to the conclusion that a reprimand and the suspension of Dr Nadkarni's registration for a period of 20 months, together with conditions which will have effect upon his return to practice, will adequately reflect the seriousness of the professional misconduct and ensure the protection of the public and that the cancellation of his registration is not required.
Given that we have accepted Dr Nadkarni's assurances that he no longer intends to practice other than as a specialist radiologist, we do not consider that it is necessary to impose a condition which would restrict him to practising as a radiologist upon his return to practice. We do however, consider that preventing him from prescribing the substances involved in this matter in any form, subject to the one exception sought in respect of salbutamol, is appropriate.
In order to address the possibility that Dr Nadkarni will become deskilled during his suspension, we will impose a condition on his registration requiring him to satisfy the applicant that he has the skills to enable him to undertake interventional radiology before recommencing practice.
We consider that a review period for the conditions of 6 months is appropriate.
The parties have agreed that Dr Nadkarni will pay a contribution to the Board's costs. We consider that is an appropriate order to make in this case. (footnotes omitted)

The grounds of appeal

Dr Nadkarni relies upon three grounds of appeal.
Ground 1 alleges, in essence, that the suspension of Dr Nadkarni's registration as a medical practitioner for a period of 20 months (order 2) was unreasonable or plainly unjust.
Ground 2 alleges that the imposition by the Tribunal of a condition upon Dr Nadkarni's registration as a medical practitioner to the effect that, before resuming practice as an interventional radiologist, Dr Nadkarni must satisfy the Board that he has clinical skills that will allow him to do so safely (order 3(c)) was not a condition permitted by s 196 of the National Law, alternatively the imposition of the condition was unreasonable or plainly unjust of itself or in combination with the period of suspension of 20 months.
Ground 3 alleges that order 2 and order 3(c) were manifestly disproportionate having regard to the penalties imposed in similar or comparable cases under the National Law and consequently Dr Nadkarni has a justifiable sense of grievance.

Counsel for Dr Nadkarni's submissions

As to ground 1, counsel for Dr Nadkarni submitted that, having regard to:
(a)the facts and circumstances of Dr Nadkarni's conduct relevant to penalty;
(b)the outcome in comparable cases of professional misconduct under the National Law; and
(c)the objects and principles embodied in the National Law,
the suspension of Dr Nadkarni's registration as a medical practitioner for a period of 20 months was manifestly excessive.
As to ground 2, counsel for Dr Nadkarni submitted that the effect of order 2 and order 3(c), in combination, is that:
(a)Dr Nadkarni's registration as a medical practitioner is suspended for a period of 20 months; and
(b)from the date of expiry of that period of suspension, his registration becomes subject to a condition that, before resuming practice as an interventional radiologist, Dr Nadkarni must satisfy the Board that he has the clinical skills to do so safely.
The combined effect of order 2 and order 3(c) is that Dr Nadkarni is prohibited from practising as an interventional radiologist for 20 months plus whatever period of time it takes him to satisfy the Board, to whatever standard it chooses to apply, as to his competence. In circumstances where the Tribunal accepted that Dr Nadkarni wishes to practice solely as a specialist radiologist, the combined effect of those orders is to prevent Dr Nadkarni from practising at all. That is not a suspension of his registration for a fixed period as mandated by s 196(2)(d) of the National Law. Consequently, so it was submitted, the making of order 2 and order 3(c) in combination was beyond the powers of the Tribunal.
Alternatively, as to ground 2, counsel for Dr Nadkarni submitted that order 3(c) was unreasonable or plainly unjust in all the circumstances, whether standing alone or in combination with the period of suspension of 20 months, in that:
(a)By s 196(2), a suspension must be for a fixed period.
(b)The practical effect of order 2 and order 3(c) in combination is that Dr Nadkarni's specialist registration in radiology has not been suspended for a fixed period.
(c)Order 3(c) does not stipulate any adequately defined mechanism by which Dr Nadkarni can seek to satisfy the Board as to his competence and gives the Board an unfettered discretion to determine those matters.
(d)The form of order 3(c) is not conducive to any means of expeditious dispute resolution under the National Law consistent with the guiding principle that the National Law is to operate in a transparent, accountable, effective and fair way. See s 3(3)(a) of the National Law.
(e)There are obvious practical difficulties that are likely to arise in Dr Nadkarni satisfying the condition imposed by order 3(c). In particular, after the expiry of the period of suspension, Dr Nadkarni could not demonstrate his clinical skills in interventional radiology by doing anything as part of the practice of interventional radiology.
As to ground 3, counsel for Dr Nadkarni submitted that, having regard to Dr Nadkarni's contentions in relation to ground 1 and ground 2, the combined effect of order 2 and order 3(c) was manifestly disproportionate with penalties imposed in comparable cases, thereby giving rise to a justifiable sense of grievance by Dr Nadkarni.

Counsel for the Board's submissions

As to ground 1, counsel for the Board submitted that the Tribunal identified at [86] – [88] of its reasons why a term of suspension was necessary to mark the seriousness of Dr Nadkarni's professional misconduct and as a general deterrent to other medical practitioners. In particular, the Tribunal said:
The fact that someone as experienced as Dr Nadkarni could regard his prescribing practice as justified, speaks to the need to deter others from following in his footsteps and to ensure the public, who repose a great deal of trust in practitioners by reason of their supposed skill, training and expertise, can be confident in their treatment [88].
Counsel for the Board argued that there was no reason to conclude that the Tribunal had made any error in deciding to impose a period of suspension of 20 months, let alone to conclude that the penalty was so out of keeping with other decisions in comparable matters as to warrant this court's intervention.
As to ground 2, counsel for the Board accepted that the Tribunal was bound to fix a finite period of suspension.
It was submitted that order 2 and order 3(c) did not, in combination, result in an indefinite period of suspension that was longer than 20 months.
Counsel argued that Dr Nadkarni's contention that the condition embodied in order 3(c) comes into effect and must be satisfied after the expiry of the period of suspension of 20 months is incorrect. Order 3(c) merely requires that Dr Nadkarni satisfy the Board that he has clinical skills that will enable him to practice safely as an interventional radiologist before he resumes practice.
According to counsel for the Board, it is plain from the Tribunal's reasons that the Tribunal did not intend the condition embodied in order 3(c) to operate as an extension of the period of suspension. Rather, the condition merely required the appellant to have 'some refresher training or period of supervision following [his] return to practice' [93].
Accordingly, so it was submitted, the condition embodied in order 3(c) relates only to Dr Nadkarni's practice as an interventional radiologist, and not to his practice as a medical practitioner.
As to ground 3, counsel for the Board submitted that, having regard to the Board's submissions in relation to ground 1 and ground 2, the combined effect of order 2 and order 3(c) was not manifestly disproportionate to the penalties imposed in reasonably comparable cases.

Ground 1: its merits

The purpose of disciplinary proceedings against a medical practitioner is to protect the public. The purpose is 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 that will prevent a person who is unfit to practice from practising or by the making of orders that will secure the maintenance of proper professional standards. Both the public and the medical profession will be protected by orders that will assure the public and members of the medical profession generally that appropriate standards are being maintained within the profession. The denouncing of professional misconduct or unprofessional conduct by a medical practitioner and the imposition of penalties operates as a deterrent to the practitioner concerned and a deterrent to medical practitioners generally. See Jemielita v The Medical Board of Western Australia;[2] Richter v Walton;[3] Craig v Medical Board of South Australia;[4] Health Care Complaints Commission v Do;[5] Medical Board of Australia v Woollard.[6]
[2] Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library No 920584; 13 November 1992, Owen J at 140 – 142.
[3] Richter v Walton [1993] NSWCA 233 at 6 – 7 (Kirby P & O'Keefe AJA).
[4] Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 [41] (Doyle CJ; Williams & Martin JJ agreeing).
[5] Health Care Complaints Commission v Do [2014] NSWCA 307 [35] (Meagher JA; Basten & Emmett JJA agreeing).
[6] Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32 [130] (Newnes & Murphy JJA), [268] (Mitchell JA).
In Craig, Doyle CJ examined the basis upon which orders are made by professional disciplinary tribunals and the distinction between orders made for the protection of the public, on the one hand, and the imposition of punishment under the criminal law, on the other:
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.
In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.
I make these points merely to emphasise that the protection of the public has various aspects. The public may be protected by preventing a person from practising a profession, by limiting the right of practice, or by making it clear that certain conduct is not acceptable. These are merely illustrations of the sort of order that may be called for [44] ‑ [48].

An order for suspension of a medical practitioner must be based upon a view that at the end of the period of suspension the practitioner will be fit to practice. See, generally, Law Society of New South Wales v McNamara.[7]
[7] Law Society of New South Wales v McNamara (1980) 47 NSWLR 72, 76 (Reynolds JA).
In the present case, the Tribunal's decision to suspend Dr Nadkarni's registration as a medical practitioner for a period of 20 months involved the exercise of a discretion. It was necessary for the Tribunal, in arriving at the decision, to evaluate and weigh a broad range of factors. Those factors included the purpose of disciplinary proceedings against medical practitioners (notably, the protection of the public and the maintenance of high professional standards); the findings of fact made by the Tribunal in its reasons; the numerous sanction or penalty options available to the Tribunal under s 196(2) of the National Law; the sanctions or penalties that have been imposed upon medical practitioners in previous cases with at least some features reasonably comparable to the present case; personal and general deterrence; Dr Nadkarni's personal circumstances and antecedents; and the mitigating factors. The determination of the appropriate sanction or penalty option or options was not a mechanical process. The Tribunal had to balance competing considerations and choose between the various sanction or penalty options. This entailed assessments of fact and degree and the making of a value judgment. There was no unique 'right' answer which was able to be identified by the application of principle. See, generally, Guss v Law Institute of Victoria Ltd;[8] Quinn v Law Institute of Victoria Ltd;[9] Papps v Medical Board of South Australia;[10] Stirling v Legal Services Commissioner.[11]
[8] Guss v Law Institute of Victoria Ltd [2006] VSCA 88 [28] (Maxwell P; Callaway & Chernov JJA agreeing).
[9] Quinn v Law Institute of Victoria Ltd [2007] VSCA 122; (2007) 27 VAR 1 [34] (Maxwell P), [41] (Chernov JA), [47] (Nettle JA).
[10] Papps v Medical Board of South Australia [2006] SASC 234 [52] (Gray J; Nyland & Vanstone JJ agreeing).
[11] Stirling v Legal Services Commissioner [2013] VSCA 374 [63] ‑ [68] (Warren CJ, Neave JA & Dixon AJA).
Accordingly, the principles of law which regulate the manner in which an appellate court may review the exercise of a discretion apply. An appellate court cannot intervene unless the primary decision‑maker has made a material error of fact or law. For example, the primary decision‑maker may have applied an incorrect legal principle, taken into account some extraneous or irrelevant matter, failed to take into account some matter it was bound to consider or made a mistake as to the facts. Sometimes it will not be possible to identify precisely an error of that kind. However, an appellate court may intervene if a material error may be inferred on the ground that the result is unreasonable or plainly unjust. In such a case, 'although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred'. See House v The King.[12] An appellate court may not, of course, substitute its own opinion for that of the primary decision‑maker merely because the appellate court would have exercised the discretion differently.
[12] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 ‑ 505 (Dixon, Evatt & McTiernan JJ).
In our opinion, the facts and circumstances of Dr Nadkarni's professional misconduct were very serious. Between about 2010 and about 2018, Dr Nadkarni prescribed human growth hormone, anabolic androgenic steroids, anastrozole and other substances of those kinds to patients, without any proper therapeutic indication or clinical justification, and consequently exposed his patients unnecessarily to the risk of adverse effects from those substances. Between December 2012 and July 2017, Dr Nadkarni did not record, in his clinical notes relating to nine patients, all of the substances that he had prescribed for those patients. Between June 2014 and January 2017, Dr Nadkarni ordered blood tests for four patients, without proper or adequate consideration of the necessity for those tests, and consequently exposed those patients to potentially unnecessary testing. Between June 2014 and January 2017, Dr Nadkarni failed to take an appropriate medical history and to conduct appropriate examinations when consulting with four patients. The whole of the conduct we have described constituted the professional misconduct.
Dr Nadkarni's prescribing practices were not confined to the nine patients in respect of whom there were concerns about the prescribing of human growth hormone. Those nine cases were merely a sample of Dr Nadkarni's general approach when practising integrative medicine. The Tribunal was unable to make a finding about how many patients were seen by Dr Nadkarni at his integrative medicine practice during the period in question.
The Tribunal found that Dr Nadkarni's failure to keep proper medical records in respect of some of his patients and his ordering of blood tests without first seeing the patients were serious features of his conduct. The Tribunal also found that Dr Nadkarni's prescribing of substances which have a known risk of causing serious harm to patients, without any therapeutic justification, was also serious.
The very serious nature of Dr Nadkarni's professional misconduct was, however, ameliorated by numerous mitigating factors. In particular, the Tribunal made findings of fact to this effect:
(a)Dr Nadkarni's prescribing practices, in the context of his practice of integrative medicine, were the result of a genuine desire to offer holistic services to patients and a mistaken understanding that there was a clinical justification for prescribing the substances he did.
(b)Dr Nadkarni had ceased to practice integrative medicine.
(c)Dr Nadkarni no longer prescribed the substances in question.
(d)Dr Nadkarni no longer ordered blood tests for patients without first examining and assessing the patient personally.
(e)Dr Nadkarni was genuinely remorseful for his professional misconduct.
(f)Dr Nadkarni was unlikely to repeat the professional misconduct.
(g)Dr Nadkarni had eventually gained insight into the risks to which he had exposed his patients by his prescribing practices.
(h)Dr Nadkarni had completed training in relation to maintaining adequate notes and records.
(i)Dr Nadkarni had no previous disciplinary history.
(j)There was no suggestion that Dr Nadkarni's skills and experience in radiology were less than satisfactory. References from professional colleagues illustrated Dr Nadkarni's competence as a radiologist and the contribution he has made and continues to make to that area of medicine. Dr Nadkarni has vast experience in the diagnosis and management of musculoskeletal and chronic pain, varicose vein ablation and management of pelvic pain. He appears to be an excellent interventional radiologist with a wide skill set.
(k)Having ceased to practice integrative medicine, Dr Nadkarni will focus on providing diagnostic radiological services and interventional radiological services.
(l)Dr Nadkarni did not lack the character and trustworthiness necessary to discharge the responsibilities of his profession. Dr Nadkarni's professional misconduct did not involve dishonesty or incompetence of a kind that would render him permanently unfit to practise his profession.
The Tribunal noted in its reasons that there would be adverse consequences if Dr Nadkarni's registration as a medical practitioner were to be suspended for a specified period or cancelled. Those consequences included:
(a)personal hardship for Dr Nadkarni and his young family in that Dr Nadkarni is the family's sole income earner;
(b)if Dr Nadkarni were to be suspended from practice for more than six months, his staff would be likely to become unemployed; and
(c)the loss of Dr Nadkarni's provision of radiological services would inconvenience Sir Charles Gairdner Hospital and cause delays in some country patients receiving affordable medical treatment.
The Tribunal concluded that, in addition to a reprimand, a period of suspension was required in order to mark the seriousness of Dr Nadkarni's professional misconduct. The protection of the public by the imposition of a period of suspension would act as a deterrent to other medical practitioners who may consider embarking upon the same kind of behaviour. The need to protect the public and maintain public confidence in the medical profession, by reinforcing high professional standards and denouncing transgressions, was an important factor in deciding upon the appropriate sanction or penalty. Although a period of suspension would inevitably have an impact upon Dr Nadkarni's young family, any hardship would not be exceptional. The appropriate sanction or penalty for Dr Nadkarni could not be moderated to ensure that the employment of Dr Nadkarni's staff was maintained. Further, the loss of Dr Nadkarni's provision of radiological services and the inconvenience and delays suffered by others was not sufficient in nature or extent to require any modification of the otherwise appropriate sanction or penalty because there was no evidence that Dr Nadkarni had skills that were indispensable for the continuing treatment and welfare of the public generally. Accordingly, the Tribunal decided that Dr Nadkarni's registration as a medical practitioner should be suspended for a period of 20 months.
We have considered the sanctions or penalties that have been imposed upon medical practitioners in numerous previous cases with at least some features reasonably comparable to the present case. Details of those previous cases are set out in the Schedule to these reasons. There are some comparable features between some of those cases and the present case, but there are also distinguishing features. We merely note that Singh v Medical Board of Australia[13] (where the practitioner was disqualified from applying for registration as a medical practitioner for a period of 10 years and fined $5,000) and Medical Board of Australia v Tunbridge[14] (where the practitioner was reprimanded and disqualified for a period of two years from applying for registration as a medical practitioner) involved significantly more serious facts and circumstances than the present case and are not reasonably comparable.
[13] Singh v Medical Board of Australia [2019] WASCA 51.
[14] Medical Board of Australia v Tunbridge [2020] SACAT 34.
If, in a particular case where manifest excess is alleged, there are no directly comparable cases, this court is not precluded from deciding that an individual sanction or penalty is manifestly excessive. It merely has the consequence that this court has no directly comparable cases to provide a yardstick against which to assess the sanction or penalty. Previous cases as to sanctions or penalties are only one pointer to the adequacy of the sanction or penalty in a later case.
In any event, there can be no tariff for professional misconduct of the kind engaged in by Dr Nadkarni because of the great variation that is possible in the circumstances of the misconduct and of the practitioners.
In the present case, the Tribunal did not make a finding as to the prevalence within the medical profession of the behaviour engaged in by Dr Nadkarni which constituted his professional misconduct.
We accept that the protection of the public, the maintenance of high professional standards, the denunciation of Dr Nadkarni's misbehaviour, personal deterrence and general deterrence were especially important matters to be considered by the Tribunal in deciding upon the appropriate sanction or penalty. We are satisfied that, having regard to the broad range of factors that were relevant in determining the appropriate sanction or penalty, suspension of Dr Nadkarni's registration as a medical practitioner for a specified period was necessary. For example, a reprimand combined with a condition that Dr Nadkarni practise solely as an interventional radiologist would not adequately reflect the important matters we have mentioned. However, we consider that suspension for a period of 20 months exceeded, to a significant extent, the length of the period of suspension that was reasonably necessary to reflect the important matters we have mentioned.
In our opinion, the length of the period of suspension imposed by the Tribunal was not commensurate with the overall seriousness of Dr Nadkarni's professional misconduct. We are persuaded, after evaluating all relevant facts and circumstances and all relevant matters, that the length of the period of suspension was unreasonable or plainly unjust. That is the only conclusion reasonably open when the length of the period of suspension is viewed from the perspective of the purpose of disciplinary proceedings against medical practitioners (in particular, the protection of the public and the maintenance of high professional standards); the findings of fact made by the Tribunal in its reasons; the numerous sanction or penalty options available to the Tribunal; the sanctions or penalties that had been imposed in previous cases which are, at least to some extent, reasonably comparable; personal and general deterrence; Dr Nadkarni's personal circumstances and antecedents; and the mitigating factors. The length of the period of suspension was not merely at the higher end of the range available to the Tribunal without discretionary error. It was substantially greater than the length of the period of suspension that was open to the Tribunal on a proper exercise of its discretion.
Ground 1 has been made out.

Ground 2: its merits

Section 196(2) of the National Law empowered the Tribunal, relevantly, as a result of the Tribunal having found that Dr Nadkarni had behaved in a way that constituted 'professional misconduct', to 'impose a condition on [Dr Nadkarni's] registration, including, for example':
(a)'a condition requiring [Dr Nadkarni] to complete specified further education or training … within a specified period' (s 196(2)(b)(i));
(b)'a condition requiring [Dr Nadkarni] to undertake a specified period of supervised practice' (s 196(2)(b)(ii)).
Order 3(c) of the orders made by the Tribunal on 21 September 2021 stated:
Before resuming practice as an interventional radiologist [Dr Nadkarni] must satisfy [the Board] that he has the clinical skills that will allow him to do so safely.
Order 3(g) of those orders stated:
A review period of six months is set for the conditions imposed on [Dr Nadkarni's] registration, with the review period to start on 16 June 2023.
The Tribunal noted in its reasons that Dr Nadkarni had expressed some concern that if he was unable to practise as an interventional radiologist for a significant period of time, he may lose essential skills [93]. The Tribunal acknowledged that the risk existed [93]. The Tribunal then said:
It may be that some refresher training or a period of supervision will be required following Dr Nadkarni's return to practice to ensure that he remains sufficiently skilled. In our view, the risk can be adequately addressed by other means [93].
The 'other means' adopted by the Tribunal to address the risk involved the imposition of order 3(c).
At the hearing of the appeal, counsel for the Board informed this court that:
(a)the Tribunal itself had formulated order 3(c);
(b)it was not part of the Board's case before the Tribunal that order 3(c) was necessary; and
(c)there was no evidence before the Tribunal as to how Dr Nadkarni could satisfy the Board or what the Board could require of Dr Nadkarni in connection with the condition embodied in order 3(c) (appeal ts 59).
It is plain, in our opinion, that order 3(c) was not made pursuant to or authorised by s 196(2)(b)(i) or s 196(2)(b)(ii).
Section 196(2)(b)(i) refers to a condition that requires the completion of 'specified further education or training' within a 'specified period'. Section 196(2)(b)(ii) refers to a condition that requires the undertaking of a 'specified period of supervised practice'.
The word 'specified' is protean. The nature and content of a statutory requirement that a matter or thing be 'specified' will vary according to the statutory context. Questions of degree may be involved in determining whether a matter or thing has been 'specified' as required. See, generally, Ellul v Fauser.[15]
[15] Ellul v Fauser (1981) 28 SASR 300, 302 ‑ 303 (Cox J).
In the present case, the relevant statutory context is the imposition by the Tribunal of a sanction or penalty on a registered health practitioner as a consequence of the Tribunal having made one or more of the decisions set out in s 196(1)(b).
In our opinion:
(a)the word 'specified' in s 196(2)(b)(i) means that the condition requiring the practitioner to complete 'specified further education or training' must state with reasonable precision or in reasonable detail the further education or training that the practitioner must complete; and
(b)the word 'specified' in s 196(2)(b)(ii) means that the condition requiring the practitioner to undertake a 'specified period of supervised practice' must state specifically or explicitly the length of the period and the date on which the period is to commence.
In the present case, order 3(c) did not require, with any specificity or at all, that Dr Nadkarni complete further education or training, within s 196(2)(b)(i). Also, in the present case, order 3(c) did not require Dr Nadkarni to undertake supervised practice, within s 196(2)(b)(ii), for any period or at all.
None of the other examples set out in para (iii) to (vi) of s 196(2)(b) empowered the Tribunal to make order 3(c).
The only provision of s 196(2) that, at least arguably, empowered the Tribunal to make order 3(c) was the opening words of s 196(2)(b), namely that, having found that Dr Nadkarni had behaved in a way that constituted 'professional misconduct', the Tribunal 'may decide', relevantly, 'to … impose a condition on [Dr Nadkarni's] registration'.
In our opinion, the power conferred on the Tribunal by the opening words of s 196(2) to impose a condition on a practitioner's registration is a power to impose a condition that is reasonably capable of being regarded as related to the purpose of disciplinary proceedings against registered health practitioners, including the purpose of the sanction or penalty options available to the Tribunal under s 196(2). See, generally, Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council;[16] Western Australian Planning Commission v Temwood Holdings Pty Ltd.[17]
[16] Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42; (1970) 123 CLR 490, 499 ‑ 500 (Walsh J).
[17] Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 [56] (McHugh J), [93] (Gummow & Hayne JJ), [156] (Callinan J).
In the present case, we are satisfied that the opening words of s 196(2)(b), to which we have referred at [97] above, empowered the Tribunal to impose a condition on Dr Nadkarni's registration to the effect that, before resuming practice as an interventional radiologist, Dr Nadkarni satisfy the Board that he had the requisite clinical skills. That condition is reasonably capable of being regarded as related to the purpose of the sanction or penalty options available to the Tribunal under s 196(2), namely ensuring that Dr Nadkarni is sufficiently skilled to return to practise as an interventional radiologist upon expiry of the period of suspension of his registration.
However, we are also satisfied, for the following reasons, that the condition embodied in order 3(c) was unreasonable or plainly unjust.

First, order 3(c) does not set out what Dr Nadkarni must do to satisfy the Board that he has the requisite clinical skills to resume practice as an interventional radiologist after serving the period of suspension.
Secondly, order 3(c) enables the Board to decide what Dr Nadkarni must do to satisfy the Board that he has the requisite clinical skills.
Thirdly, no doubt, the requirement that Dr Nadkarni satisfy the Board is qualified by the concept of reasonableness and what the Board may require Dr Nadkarni to do is also qualified by the concept of reasonableness. However, the concept of reasonableness does not overcome the unfairness to Dr Nadkarni that is inherent in the absence of specificity or detail in order 3(c) as to what Dr Nadkarni must do and what the Board may require of Dr Nadkarni. Also, the concept of reasonableness does not avoid the real risk of a genuine dispute between the parties as to those matters.
Fourthly, as we have mentioned, the Tribunal found in its reasons that Dr Nadkarni appears to be an excellent interventional radiologist with a wide skill set. He has vast experience in the diagnosis and management of musculoskeletal and chronic pain, varicose vein ablation and management of pelvic pain. Dr Nadkarni's competence as a radiologist and the contribution he has made and continues to make to that area of medicine was supported by references from professional colleagues. Dr Nadkarni has been a fellow of the Royal College of Radiologists since 1999, a fellow of the Royal Australian and New Zealand College of Radiologists since 2000 and a fellow of the Australian College of Phlebology since 2010. In the circumstances, all that was reasonably required, to guard against the risk that Dr Nadkarni may lose essential skills if he was unable to practise as an interventional radiologist for a significant period of time, was the imposition of a condition, pursuant to s 196(2)(b)(ii), that Dr Nadkarni undertake a specified period of supervised practice after serving the period of suspension.
Ground 2 has been made out.

Ground 3: its merits

It is unnecessary, having regard to Dr Nadkarni's success on grounds 1 and 2, to deal with ground 3.

The orders that this court should make in the appeal

The power of this court under s 105(1) of the SAT Act to give leave to appeal is conferred in general terms. It is not restricted or qualified. Leave should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. See Paridis v Settlement Agents Supervisory Board.[18]
[18] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] (Buss JA; Wheeler & Pullin JJA agreeing).
In the present case, grounds 1 and 2 of the appeal have merit and consequently it is in the interests of justice that there be a grant of leave under s 105(1) of the SAT Act.
The appeal should be allowed.
Orders 2 and 3(c) must be set aside.
Recently, in Young v Legal Profession Complaints Committee,[19] Buss P examined (Quinlan CJ and Beech JA relevantly agreeing) the manner in which this court's power under s 105(9) of the SAT Act to make substitutive orders has been and should be exercised. It is unnecessary to repeat what Buss P wrote on that occasion.
[19] Young v Legal Profession Complaints Committee [2022] WASCA 52 [295] ‑ [313].
In the present case, this court may, consistently with the decision and reasoning in Osland v Secretary, Department of Justice (No 2),[20] exercise the Tribunal's discretionary power under s 196(2) of the SAT Act to make orders as a result of the Tribunal's finding that Dr Nadkarni has behaved in a way that constitutes professional misconduct, in that:
(a)this court's exercise of the discretionary power will be based upon primary facts already found by the Tribunal or upon undisputed evidence (so that a further hearing to find facts is unnecessary);
(b)this court is in as good a position as the Tribunal (including having regard to the Tribunal's status as a specialist tribunal) in relation to the exercise of the discretionary power; and
(c)this court's exercise of the discretionary power would achieve a convenient disposition of the matter and avoid the expense and inconvenience of remitting the matter to the Tribunal.
See Young [313] and the cases there cited.
[20] Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [20], [33] (French CJ, Gummow & Bell JJ).
In the present case, neither Dr Nadkarni nor the Board submitted that the matter should be sent back to the Tribunal for reconsideration (appeal ts 41, 60).
This court has the material necessary for the exercise of the Tribunal's discretionary power under s 196(2).
As we have explained, the facts and circumstances of Dr Nadkarni's professional misconduct were very serious. Also, as we have explained, the very serious nature of Dr Nadkarni's professional misconduct was ameliorated by numerous mitigating factors. See [71] ‑ [74] above.
We are of the opinion, after taking into account:
(a)the purpose of disciplinary proceedings against medical practitioners (in particular, the protection of the public and the maintenance of high professional standards);
(b)the findings of fact made by the Tribunal in its reasons;
(c)the numerous sanction or penalty options available under s 196(2);
(d)the sanctions or penalties that have been imposed in previous cases which are, at least to some extent, reasonably comparable;
(e)the importance of personal and general deterrence;
(f)Dr Nadkarni's personal circumstances and antecedents; and
(g)the mitigating factors,
that Dr Nadkarni's registration as a medical practitioner should be suspended for a period of eight months.
The suspension of Dr Nadkarni's registration for a period of eight months is a significant penalty for Dr Nadkarni. The suspension will, no doubt, be attended by some professional shame, some loss of professional reputation and a substantial loss of income.
We consider that the risk that Dr Nadkarni may lose essential skills as an interventional radiologist during the period of suspension will be adequately guarded against by imposing a condition on Dr Nadkarni's registration pursuant to s 196(2)(b)(ii). The condition that we would impose is that Dr Nadkarni undertake a one month period of supervised practice as an interventional radiologist after serving the period of suspension.
The other orders made by the Tribunal on 21 September 2021 (that is, the orders apart from order 2 and order 3(c)) should not be disturbed except to the extent necessary to give effect to these reasons.
Counsel should be heard as to the precise form of the orders that should be made to give effect to these reasons, including any orders that may be required having regard to the orders Buss P and Mazza JA made on 13 October 2021 (see [6] above) and any orders that should be made as to the costs of this appeal.

Schedule

Previous Cases

Schmuelly v Professional Standards Committee Inquiry (2010)

The complaint against the practitioner alleged that he inappropriately prescribed human growth hormone (HGH) to patients and himself, prescribed Roaccutane to patients without authority, inappropriately prescribed a restricted substance to his fiancée and completed Workcover certificates certifying himself as unfit to work.

Findings of the Committee

The practitioner's conduct was held to be significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience [153]. His pattern of conduct in prescribing HGH to patients and to himself indicated a lack of both judgment and care [154]. His explanation for the completion of the Workcover certificates was considered unsatisfactory and unconvincing [155]. The practitioner was found to have engaged in unsatisfactory professional conduct [156].

Orders of the Committee

The Committee acknowledged that the practitioner had not prescribed HGH since 2007 and had expressed remorse over his conduct. The practitioner, however, gave little or no evidence as to his appreciation of the risk that his behaviour posed to his patients or insight into the importance of evidence‑based medicine [157] ‑ [159].
The Committee administered a caution against the practitioner and directed for a condition to be imposed on his registration requiring him to complete within 12 months, and at his own expense, the distance education course 'Issues in General Practice Prescribing' offered by Monash University.

Health Care Complaints Commission v Zacharia[21]

[21] Health Care Complaints Commission v Zacharia, unreported, NSW Medical Tribunal, 20 December 2011.

The practitioner practised as an ear, nose and throat surgeon and as a cosmetic surgeon. A small part of his practice became devoted to anti‑ageing medicine. It was alleged that the practitioner engaged in professional misconduct by inappropriately prescribing HGH and testosterone treatment for anti‑ageing purposes and failing to maintain adequate records.

Findings of the Tribunal

The Tribunal found that there were material inadequacies in the practitioner's record keeping and clinical examination. The practitioner supplied HGH, testosterone and anabolic steroids for purposes not therapeutically recognised. The Tribunal made a finding of professional misconduct. The Tribunal formed the view that the practitioner had:
[E]mbarked on an area of practice for which he was ill-equipped through training and education and, most significantly, in the absence of scientific and medical research to a standard that allowed that practice to be undertaken with confidence that it presented no risk of harm to his patients [247].

Orders of the Tribunal

The Tribunal reprimanded Dr Zacharia and ordered that he pay a fine of $15,000.
The Tribunal noted that there had been no complaints concerning the practitioner's professional capacity in the areas of ear, nose and throat surgery, cosmetic surgery and cosmetic procedures. The Tribunal considered it appropriate to impose as a condition on his continued registration that he confine his practices to those areas. The conditions also required Dr Zacharia:
(a)not to possess, administer, prescribe or supply a number of drugs, including HGH and most anabolic or androgenic steroids;
(b)not to advertise health services regarding 'anti‑ageing' medicine as it involves the use of any of the drugs he is prohibited from possessing, administering, prescribing or supplying; and
(c)to complete the distance medical ethics course offered by Monash University.

Medical Board of Australia v Grant[22]

[22] Medical Board of Australia v Grant[2012] QCAT 285.

The Medical Board of Australia brought proceedings against Dr Grant, a general practitioner, for prescribing anabolic steroids and other restricted drugs for body building rather than therapeutic purposes [2], [62].

Findings of the Tribunal

The Tribunal found that the practitioner inappropriately prescribed medications to 14 patients based on protocols published in body building magazines [29], [62]. The Tribunal stated that it was likely Dr Grant became known by members of the body building community as a doctor who was willing to prescribe steroids for body building purposes [27].
The Tribunal found that Dr Grant seemed to have facilitated access to steroids for non‑therapeutic purposes because he considered it preferable that professional or recreational body builders access a 'pure product' and have their health monitored while using the substances. He attributed his failure to stop doing what he knew to be wrong to a weakness of character [44].

Orders of the Tribunal

The parties filed an agreed statement of facts and made submissions supporting a joint position on sanction. The sanction proposed a reprimand and the imposition of conditions on his registration.
The Tribunal concluded that the proposed sanction was not appropriate having regard to the seriousness of the practitioner's misconduct and his lack of professional judgment [62]. The Tribunal imposed a reprimand and a 12-month suspended period of suspension, subject to compliance with conditions imposed on his registration.
The conditions imposed on his registration required him to:
(a)undertake a tertiary level course in prescribing practices;
(b)undertake a course approved by the Board to develop skills for managing difficult interactions with patients;
(c)not deal with the relevant drugs in any way, or seek the return of his endorsement to do so;
(d)allow and pay for the Board to audit his patient records;
(e)nominate a mentor with whom he must meet monthly to reinforce sound prescribing practices and skills in managing interactions with patients; and
(f)provide a copy of these orders and reasons to his employer and mentor.

Health Care Complaints Commission v Epstein[23]

[23] Health Care Complaints Commission v Epstein [2015] NSWCATOD 21.

Dr Epstein was a general physician of many years' standing who developed a practice in anti-ageing medicine. The complaint against Dr Epstein alleged that she prescribed hormones, steroids and other drugs to 40 patients where there was no proper indication for the prescribing and without exercising responsible medical judgement.

Findings of the Tribunal

The Tribunal was satisfied that Dr Epstein did not conduct adequate physical examinations and investigations prior to prescribing medications, did not report back to patients' treating general practitioners and did not maintain proper clinical records. The practitioner's conduct was held by the Tribunal to amount to unsatisfactory professional conduct and professional misconduct.
The practitioner prescribed for anabolic steroid users. The Tribunal was particularly concerned by the practitioner's treatment of a patient, in full knowledge of the patient's cognitive difficulties, in circumstances where the patient was unable to properly assess the risks and benefit of the proposed treatment [708]. This conduct was held to be improper and unethical.

Orders of the Tribunal[24]

[24] Health Care Complaints Commission v Epstein (No 2)[2015] NSWCATOD 36 (Penalty Decision).

The Tribunal made orders reprimanding Dr Epstein and imposing conditions on her registration. The conditions included a restriction on Dr Epstein's ability to prescribe HGH, testosterone and other anabolic/androgenic agents to any new or existing male patients unless:
(a)Dr Epstein first obtained written approval to prescribe as proposed from an Australian endocrinologist of her choice who has reviewed the patient's records and the proposed treatment plan; or
(b)the patient was reviewed by the endocrinologist and Dr Epstein's treatment plan was approved by the endocrinologist.
Further conditions included requirements for Dr Epstein to submit to audits of her practice and to participate in a formal mentoring arrangement with a registered medical practitioner.
The Tribunal did not consider the finding of professional misconduct to require a cancellation or suspension of Dr Epstein's registration as the Tribunal was not satisfied that she was unfit to practice at the date of hearing.

Medical Board of Australia and Singh[25]

[25] Medical Board of Australia and Singh [2017] WASAT 33.

The practitioner was a highly qualified physician who had been practising medicine for over 25 years. The principal allegations made by the Board were that, from early 2008, the practitioner engaged in a general practice of prescribing to patients, who consulted him seeking weight loss, physical conditioning and/or body building, anabolic androgenic steroids and other treatments in circumstances where there was no therapeutic reason for doing so and the patients were unnecessarily exposed to adverse effects [102], [106].
It was also alleged that the practitioner engaged in the general practice of prescribing Clomid to patients in contravention of the Poisons Regulations 1965 (WA) [104], ordering the infusion of iron, fresh frozen plasma (FFP) infusions and DEXA scans for patients when there was no recognised therapeutic indication for those treatments [108] ‑ [110], and failing to keep adequate clinical notes [317].
In addition to the above allegations regarding the practitioner's general practice, specific complaints were made with relation to the treatment of two patients.

Findings of the Tribunal

The Tribunal found that the practitioner had engaged in professional misconduct under the National Law, and had acted carelessly, incompetently and/or improperly for the purposes of the Medical Practitioners Act 2008 (WA), which was in force up to 18 October 2010.
His conduct was found in Medical Board of Australia and Singh[26] to be widespread and extensive, involving many hundreds of patients. The Tribunal also made a number of findings in relation to the widespread inadequacy of the appellant's clinical notes [317] ‑ [338], noting that in relation to a number of patients there were no clinical notes at all [332].
[26] Medical Board of Australia and Singh [2017] WASAT 33 (S) [39], [44] and [57] (Penalty Decision).
The Tribunal found that the practitioner recited inaccurate qualifications, displayed a lack of recall on specific matters highlighting his unprofessional approach to practice, and adopted scientific studies when it suited him and rejected all others when it did not. It became apparent from Dr Singh's concessions during the hearing that much of his evidence was deliberately untrue [96]. The Tribunal also found that the appellant engaged in professional misconduct by writing a derogatory letter to the medical practitioner who notified the Board of the medications a patient was receiving for body building pursuits [438] ‑ [443].

Orders of the Tribunal[27]

[27] Medical Board of Australia and Singh [2017] WASAT 33 (S) (Penalty Decision).

By the time the Tribunal came to impose a penalty in light of its findings of misconduct, the appellant was no longer registered as a medical practitioner, as his registration had expired, and he had not sought to renew it. The Tribunal made clear that it would have cancelled the appellant's registration were it still in force. In that regard the Tribunal expressly found that the appellant's misconduct was 'so serious that he is permanently or indefinitely unfit to practice': Penalty Decision [75].
The Tribunal disqualified the practitioner from applying for re‑registration as a medical practitioner for a period of 10 years and fined him $5,000.

Appeals

Singh v Medical Board of Australia:[28] the appeal against decision had no reasonable prospects of success, and the application for leave to appeal was dismissed.
[28] Singh v Medical Board of Australia [2018] WASCA 125.
Singh v Medical Board of Australia:[29] leave to appeal was refused and the appeal dismissed. The practitioner did not demonstrate any error by the Tribunal in the exercise of its discretion. The Tribunal did not err in consideration of matters personal to the practitioner and correctly apprehended the law to be applied in the imposition of sanctions. The period of disqualification was not unreasonable or plainly unjust and the Tribunal's findings were within sound discretion.
[29] Singh v Medical Board of Australia [2019] WASCA 51.

Medical Board of Australia v Hadges[30]

[30] Medical Board of Australia v Hadges [2018] SAHPT 6.

The complaint alleged that Dr Hadges, a specialist general practitioner, inappropriately prescribed steroids to 15 of his patients for body building rather than therapeutic purposes [9]. It was further alleged that Dr Hadges prescribed extremely hazardous levels of Valium in combination with analgesics to a patient with sedative dependence [20], and inappropriately prescribed for himself and family members [22].

Findings of the Tribunal

The Tribunal made findings that the practitioner failed to appropriately interpret or deliberately ignored investigation results, failed to consider the balance of benefit and harm in clinical management decisions and failed to provide or record the provision of information to patients of the benefits and risks of adverse outcomes. Dr Hadges engaged in the provision of drugs for recreational purposes rather than therapeutic benefit and failed to work within the limits of his competence and scope of practice.

Orders of the Tribunal

The Tribunal considered that Dr Hadges had no prior history, had demonstrated a degree of remorse and insight into his behaviour and acted appropriately and cooperatively when notified of his misconduct [52] ‑ [53].
The Tribunal made orders to reprimand Dr Hadges, suspend his registration for eight months and impose conditions on his registration, including:
(a)restricting his areas of practice to general practice and/or practice as a surgical assistant;
(b)prohibiting him from performing cosmetic medicine or surgical procedures;
(c)requiring him to be under supervision by another medical practitioner when practising;
(d)requiring him to only practise at Board-approved places of practice;
(e)prohibiting him from prescribing, supplying or administering anabolic steroids and other particular classes of drugs; and
(f)completing education on various topics, including clinical management, investigations, review of treatment, prescribing, informed consent and coordination of care.

Medical Board of Australia v Tunbridge[31]

[31] Medical Board of Australia v Tunbridge [2020] SACAT 34.

As alleged by the Medical Board of Australia, Dr Tunbridge admitted to, between 2009 and 2018, inappropriately prescribing medication to patients, including Growth Hormone Releasing Peptide, Anastrozole, Metformin, anabolic androgenic steroids and testosterone, failing to adequately monitor or treat patients, and failing to maintain adequate records.

Findings of the Tribunal

The Tribunal made findings of fact in accordance with the statement of agreed facts. The conduct of the practitioner was held to exhibit a serious disregard for the requirements of professional practice. The prescribing constituted a serious departure from the standard of care to be expected of a practitioner of Dr Tunbridge's training and experience [32]. The Tribunal concluded that the practitioner had behaved in a way which clearly constituted professional misconduct [33].
The practitioner initially defended his conduct and challenged the views of the independent medical experts. Other than an acknowledgment eventually made in the statement of agreed facts, Dr Tunbridge made no effort to convince the Tribunal that he had gained insight into his behaviour or that he could be trusted to practice in a safe manner. He did not address the issue of future practice in any capacity. This supported the Tribunal's finding that the practitioner was presently unfit to practice and that a lengthy disqualification would be required to secure the maintenance of professional standards [34] ‑ [36].

Orders of the Tribunal

The practitioner was reprimanded, disqualified for a period of two years from applying for registration and ordered to pay the Board's costs.

Medical Board of Australia v Marzola[32]

[32] Medical Board of Australia v Marzola [2020] SACAT 116.

The practitioner was a registered medical practitioner practising in cosmetic and anti‑ageing medicine. The complaint alleged that the practitioner engaged in professional misconduct. The parties provided the Tribunal with a statement of agreed facts. Dr Marzola admitted that his conduct amounted to professional misconduct.

Findings of the Tribunal

The Tribunal was satisfied that the practitioner engaged in professional misconduct by inappropriately prescribing medication in circumstances where there was an absence of evidence to support a therapeutic benefit, and which exposed his patients to risk. Dr Marzola failed to obtain informed consent from patients before prescribing medication which was experimental, and which had not received necessary therapeutic approval. He failed to keep adequate records and engaged in behaviour in breach of the relevant Code of Conduct [52].

Orders of the Tribunal

The Tribunal was satisfied that Dr Marzola had recognised the nature and cause of his professional misconduct and made significant changes to his medical practice as an indication of his commitment to avoid engaging in unprofessional conduct in the future [54].
The Tribunal formed the view that the protection of the public and the maintenance of professional standards and confidence in the medical profession would be adequately addressed by issuing a reprimand to Dr Marzola and imposing the following conditions on his registration, namely:
(a)prohibiting him from in any way accessing and prescribing any of the medication the subject of the proceedings;
(b)that his practice be subject to quarterly audits by a Board approved auditor; and
(c)that his medical practice be restricted to specified areas of clinical activity,
with these conditions subject to a 12-month review by the Board. Dr Marzola was further required to pay a fine of $15,000.

Medical Board of Australia v Owen[33]

[33] Medical Board of Australia v Owen [2021] SACAT 7.

The Medical Board of Australia referred a complaint to the Tribunal alleging that Dr Owen engaged in improper prescribing, deficient assessment of seven patients, and inadequate record keeping.
During the relevant period, Dr Owen practised in both traditional general medicine and an 'integrative' medical practice, treating a cohort of patients with a combination of conventional western medicine and complementary medicine and therapies. Dr Owen had a particular interest in treating anxiety and depression with treatments that included 'vitamins', Methyltetrahydrofolate reductase (MTHFR), 'gene polymorphism' and 'the potential benefits of Folinic acid' [11].
The parties filed an agreed statement of facts and findings and agreed draft minutes of order.

Findings of the Tribunal

The Tribunal accepted the Board's summary of unifying principles and was satisfied that the elements of the complaint were established. This, alongside the practitioner's admissions, supported a finding of professional misconduct.
The Tribunal found that Dr Owen prescribed various drugs and supplements inappropriately and without sufficient therapeutic indication, without the conducting or documentation of appropriate diagnostic tests and, in prescribing testosterone to women, lacking the appropriate knowledge and expertise to do so safely. His assessment of the seven patients in question was deficient in various respects, including by undertaking inadequate assessments, failing to conduct adequate examinations and failing to formulate and implement appropriate management plans. Dr Owen's record keeping for the seven patients was inadequate.

Orders of the Tribunal

The Tribunal made orders reprimanding Dr Owen, suspending his registration for a period of 12 months and imposing conditions on his registration commencing on the expiry of the suspension. The conditions restricted Dr Owen to only practicing in a group practice that had been approved by the Board and which had a minimum of four other medical practitioners. It was ordered that Dr Owen must not prescribe or administer testosterone (in any form) to male or female patients; not provide treatment for anxiety and depression by reference to the MTHFR genotype using methyl B12, folinic acid and/or MTHFR; and must undergo further education, mentoring and quarterly audits of his practice for a period of 12 months.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KW
Associate to the Honourable Justice Buss
24 AUGUST 2022