Optometry Board of Australia v Bhoola

[2021] SASC 51

Supreme Court of South Australia

(Civil)

OPTOMETRY BOARD OF AUSTRALIA v BHOOLA

[2021] SASC 51

Judgment of the Honourable Auxiliary Justice Bochner  

11 May 2021

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROCEEDINGS BEFORE BOARDS, TRIBUNALS, ETC

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT - GENERALLY

Appeal against penalty imposed by the South Australian Civil and Administrative Tribunal.

Held - appeal allowed.

Health Practitioner Regulation National Law (South Australia) Act 2010 (SA), referred to.

Optometry Board of Australia v Bhoola [2020] SACAT 46; Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47; House v The King (1936) 55 CLR 499; Craig v Medical Board of South Australia [2001] SASC 169; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Medical Board of Australia v Jansz [2011] VCAT 1026; New South Wales Bar Association v Evatt (1968) 117 CLR 177; Marin v Chiropractic Board of Australia [2020] SASCFC 74; Medical Board of Australia v Konidaris [2019] SACAT 52; Maroulis v Psychology Board of Australia [2021] SASC 16; Craig v Medical Board of South Australia (2001) 79 SASR 545; Health Care Complaints Commission v Do [2014] NSWCA 307, considered.

OPTOMETRY BOARD OF AUSTRALIA v BHOOLA

[2021] SASC 51

Civil

1. On 14 May 2020, following a contested hearing, the South Australian Civil and Administrative Tribunal (“the SACAT”) found that the respondent had engaged in professional misconduct in the practice of optometry (“the first decision”). Following a further hearing (“the sanction hearing”), the SACAT reprimanded the respondent, cancelled his registration as an optometrist and disqualified him from applying for registration as an optometrist for a period of one year. The Optometry Board of Australia (“the Board”) appeals that penalty, and says that the respondent should be disqualified from applying for registration for a period of five years.

The factual background

1. This brief factual background is taken from the findings made by the SACAT in the first decision. No appeal was brought by the respondent in respect of this decision, despite his maintaining, at the sanction hearing, that he had not undertaken the conduct that was the subject of the SACAT’s findings of professional misconduct.

2. The respondent and Ms KcKernan, also an optometrist, were shareholders and directors of the West Lakes Specsavers store, which was operated under an agreement with Specsavers Pty Ltd (“Specsavers”). From the middle of 2015 onwards, Ms McKernan became aware that there was an increase in the number of glasses being returned to the store for remakes. All of the glasses so returned were the subject of prescriptions formulated by Ms McKernan following testing. The errors in the prescriptions appeared to be the result of typing mistakes.  Ultimately, in early January 2016, Ms McKernan became suspicious that the respondent had logged into her test results and had made…