Papps v Medical Board of South Australia - [2005] SASC 345

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Civil)
PAPPS v MEDICAL BOARD OF SOUTH AUSTRALIA
Judgment of The Honourable Justice Layton
14 September 2005
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - MEDICAL PRACTITIONERS - DISCIPLINE, AND REMOVAL FROM AND RESTORATION TO REGISTER - INFAMOUS CONDUCT OR MISCONDUCT IN PROFESSIONAL RESPECT
Appeal against orders made by Medical Practitioners Professional Conduct Tribunal - complaints alleging unprofessional conduct - appellant pleaded guilty to conduct and gave undertakings - appellant suspended from practice for 12 months with conditions on subsequent practice - appeal against period of suspension not conditions - whether suspension manifestly excessive - consideration of principles in disciplinary action - whether requirement to adequately inform unrepresented practitioner similar to criminal proceedings - whether greater need to adequately inform unrepresented appellant of rights and forewarn of a possible penalty of suspension - protection of the public the overwhelming concern - Appeal dismissed.
Medical Practioners Act 1983 s5, 62, 66, 67; Supreme Court Rules 1987 r 97.17, referred to.
Craig v Medical Board of South Australia (2001) 79 SASR 545; Dinsdale v The Queen (2000) 202 CLR 321; Kenchington v Shepherd (SA) (Unreported, Olsson J, Supreme Court of South Australia, Judgment No 2806, 17 January 1990); Markarian v The Queen (2005) 79 ALJR 1048; Markey v Medical Board of South Australia (1997) 191 LSJS 213; Medical Board of South Australia v Dr Humen (Unreported Decision, Medical Practitioners Conduct Board, 2002, Judgment No. 305, 11 December 2002); Moran v McMahon (1985) 3 NSWLR 700; Mobilio v Balliotis [1998] 3 VR 833; New South Wales Bar Association v Evatt (1968) 117 CLR 177; Parker v DPP (NSW) (1992) 28 NSWLR 282; R v Baverstock [1992] 2 All ER 32; Rajagopalan v Medical Board of South Australia (Unreported, Supreme Court of South Australia, Full Court, Cox, Mullighan and Williams JJ, Judgment No. S6667, 5 May 1998); Richter v Walton (Unreported, Supreme Court of New South Wales, Court of Appeal, Kirby P, Priestley JA, O'Keefe AJA, Judgment No CA 40309, 15 July 1993); Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; T v Medical Board of South Australia [1999] SASC 402, considered.

PAPPS v MEDICAL BOARD OF SOUTH AUSTRALIA
[2005] SASC 345
1LAYTON J: This is an appeal from orders made against the appellant (“the practitioner”) by the Medical Practitioners Professional Conduct Tribunal (“the Tribunal”) on 24 February 2005. The appeal is brought pursuant to s 66 of the Medical Practitioners Act 1983 (“the Act”) which provides that a practitioner may institute an appeal to the Supreme Court from an order made by the Tribunal in proceedings for an inquiry into a complaint of unprofessional conduct[1] against a medical practitioner. The appeal before a single judge of this Court is governed by Rule 97.17 of the Supreme Court Rules 1987 which provides that the appeal is by way of re-hearing subject to s 66 of the Act and that the Court may affirm, vary or quash the Tribunal’s order or make any finding, reprimand or order that should have been made in the first instance.
[1] Medical Practitioners Act 1983 s 5.

The practitioner had admitted the unprofessional conduct and this appeal is limited to the penalty imposed by the Tribunal to the Tribunal suspended the practitioner for a period of 12 months, commencing 28 March 2005, with detailed conditions for subsequent practice. The conditions of practice were not themselves the subject of appeal as they had been the subject of previous agreement between the Medical Board (“the Board”) and the practitioner, but they were referred to for the purpose of submitting that the order of suspension was, in the circumstances, manifestly excessive. The detailed conditions are set out in [33] of these reasons.
Procedural matters
Pending the hearing of this appeal, the practitioner made an application pursuant to s 67 of the Act to seek orders that the suspension imposed by the Tribunal not take effect until the appeal before this Court has been heard and determined. By consent, Anderson J made such an order on 15 April 2005, conditional upon the practitioner giving undertakings to comply with certain conditions imposed by the Tribunal.
At the hearing of the appeal, counsel for the practitioner sought leave to amend the Notice of Appeal by submitting a "Further Amended Notice of Appeal (General)”. This was granted with the consent of counsel for the respondent and I will simply refer to this amended notice as the "Notice of Appeal".
Also at the hearing of the appeal, counsel for the practitioner sought to tender a further affidavit of the practitioner setting out his personal, domestic and financial circumstances. Counsel for the respondent objected to this. The affidavit was admitted de bene esse and was to be referred to by me in the event that I decided that the Tribunal had erred in failing to seek information from the unrepresented practitioner as to his personal circumstances for the purpose of making an appropriate order pursuant to s 58(3) of the Act. I discuss this argument later in these reasons.
Overview of appeal grounds
The practitioner cites ten grounds in the Notice of Appeal which can be grouped together in the following ways for their consideration in these reasons.
Grounds 1 and 6 assert that the suspension for 12 months, together with the conditions, was a manifestly excessive disciplinary order; various reasons are proffered.
Grounds 2 to 5 and 9 refer to the practitioner being unrepresented and the failure of the Tribunal to properly accommodate that situation for specified reasons.
Grounds 7 and 8 allege that the Tribunal failed to articulate or apply the appropriate principles in imposing the penalty.
In the course of argument, other procedural deficiencies of the Tribunal were also alleged, which were incorporated into Ground 10 as well as some of the other Grounds.
Background
The practitioner completed his Bachelor of Medicine, Bachelor of Surgery in 1983. After graduation he worked in solo general practice at Semaphore. He ceased practice in September 1998 due to personal reasons and family matters, which included having a young family. He informed the Tribunal that there was "extreme patient dissatisfaction" with his decision to cease general practice because of his previous general availability to his patients seven days a week. This cessation of general practice was alleged by the practitioner to have caused organisational difficulties and patient dissatisfaction and to have led to earlier proceedings before the Board.
The complaint in 2001
In 2001, a complaint was taken out by the Board. The complaint concerned three major areas of unprofessional conduct. The first alleged that between June 1998 and June 1999, the practitioner failed to provide copies of his medical notes or summaries of his medical notes to medical practitioners assuming the care of his former patients. In spite of numerous requests made by former patients for medical notes, there was either a failure to forward those notes or undue delay in their provision. This was alleged to be negligent or unethical conduct.
The second allegation concerned incidents occurring between 7 May 2000 and 6 July 2000 when the practitioner failed to adequately communicate with a commercial rehabilitation service body in respect of one of his patients and, as a consequence, the service provider was unable to hold case conferences.
The third allegation was that between 11 July 2000 and 18 July 2000, the practitioner failed to adequately communicate with a workers’ compensation insurer in relation to a patient.
The practitioner accepted the charges of unprofessional conduct made against him and he gave undertakings to the Board on 14 June 2001. The full text of the detailed undertakings is set out as Annexure A of these reasons. These undertakings are of relevance because this complaint, the subject of the appeal before me, alleges breaches of a number of terms of the undertakings.
At the time of the hearing before the Board and the giving of the undertakings on the 2001 complaint, the presiding member of the Tribunal, Professor R Kalucy said to the practitioner on 15 March 2001:
Just for the record I wish to say once more that I have been assured that you, Dr Papps, understand the seriousness of breaching an undertaking. It would require a new hearing if that occurred and it would be seen in a very, very, serious light, and I am taking it that you understand that.
Also at a further meeting of the Board on 14 June 2001 the presiding member said:
Let me just try and summarise what has been quite a difficult hearing, I think, and partly because it is complicated by untoward events like records being damaged and some not being available and some lost. That created I think a sense of disquiet and uncertainty, and I think it also created in our minds a sense that Dr Papps wasn’t on top of the organisation of his practice, which I take to be the reason why you are undertaking a course in practice management, to get that together.
In a sense it is worth saying that some matters that come before us at a hearing are weightier than others and some of them have weightier outcomes than others. This is a weighty matter. It is a very common problem to patients and other doctors and lawyers in our community when you have an individual doctor who cannot respond by virtue of something, which is not defined.
So we regard it as a very weighty matter. It is a very common criticism. We do however feel that the efforts that have been put in and the evidence put before us do not require us to move beyond the level of issuing a reprimand and saying we believe that Dr Papps has been guilty of unprofessional conduct, but we would go no further than a reprimand. That is where we stand at the moment.
The complaint in 2004
In its final amended form dated 11 October 2004, the complaint before this Court identifies eight major allegations of unprofessional conduct with some containing multiple sub-allegations.
First, there was an allegation that the practitioner had failed to comply with undertakings 6, 7 and 10 and also that he breached those same undertakings by reason of the following conduct:
·failure to log the request for a medical report made by solicitors on 15 June 2001 and 22 August 2001 in respect of a particular patient who had been issued with a workers’ compensation certificate.
·failure to log the request for a medical report in relation to a request made by an insurer on 31 October 2001 in relation to another patient.
·failure to provide a medical report to solicitors as to the medical condition of a patient in 2001.
·failure to transfer medical records of a patient upon the request of a new treating practitioner in late November 2002.
·failure to cooperate with the audit of his medical records by the Board and failure to produce to an audit meeting on 4 March 2002 a copy of his letter to patients referred to in his undertakings.
·failure to cooperate with the audit of his records by the Board by failing to produce the four randomly selected patient files for the purpose of inspection so that the Board could ascertain compliance with his undertakings.
A second allegation was of unprofessional conduct in relation to inappropriate advertising appearing in the Yellow Pages which promoted a service outside the scope of the medical practice of the practitioner. The advertisement stated that the practitioner could help "win" personal injury compensation cases and that he could refer patients to "expert lawyers to maximise" claims. It was claimed that this advertisement was likely to bring the medical profession into disrepute.
The third allegation was of unprofessional conduct in relation to the provision of services to a patient, whom I will refer to as Mr M, who was the practitioner’s brother-in-law. The conduct with regard to Mr M included failure to provide reports for more than a year and issuing medical certificates certifying that Mr M was fit only for modified duties from August 1999 until 20 March 2002, which certificates were contrary to the certifications given by the treating orthopaedic specialist. In addition, it was claimed that there was a failure to maintain accurate contemporaneous clinical records of his consultations with Mr M and failure to refer Mr M to a psychiatrist or psychologist.
The fourth allegation was of unprofessional conduct in respect of the practitioner’s treatment of a patient, whom I will refer to as Ms K, between 17 April 2001 and 9 May 2001. The particulars included that he excised a mole from Ms K and inserted stitches in his surgery whilst she was in a sitting position, and that there was a delay in obtaining the pathology results. Further allegations were made that the conditions of the practitioner’s rooms were observed to be untidy and unhygienic, that there was inadequate staff for optimal care, and that the procedures were carried out in a room which was inadequate for the purpose and did not contain hand washing facilities.
The fifth allegation was of unprofessional conduct in respect of treatment of a patient, whom I will refer to as Ms W, between 4 March 2002 and 8 April 2002. Ms W had a mole excised and the specimen for pathology testing was not appropriately sent or collected whilst the practitioner went interstate. Further, the practitioner failed to communicate with the patient to inform her of the delay.
The sixth allegation concerned unprofessional conduct between 8 August 2001 and 6 September 2001, when the practitioner failed to communicate or adequately communicate with a rehabilitation services provider in relation to a patient, whom I will refer to as Mr B. As a consequence the provider was unable to hold a timely case conference, in spite of numerous attempts to communicate with the practitioner by telephone and letter. This failure to communicate compromised both the vocational rehabilitation of the patient and a timely return of the patient to work.
The seventh allegation was of similar unprofessional conduct to that in the sixth allegation in relation to a patient Ms B, concerning a failure to reply to communications between 28 September 2001 and 7 February 2002 so as to enable an appropriate case conference.
The eighth allegation alleged unprofessional conduct between 1994 and 2004 in that the practitioner used abbreviations in his correspondence to indicate membership of various associations when he did not hold such memberships. This was potentially misleading in that it implied that he had specialist qualifications which he did not.
Tribunal Proceedings
The Tribunal commenced the preliminary hearings on the complaint on 29 October 2003. There were a number of early hearings on preliminary matters at which the practitioner was at times represented by a solicitor, but problems with his insurance led to his eventually representing himself at the final hearing.
The hearing commenced on 11 October 2004. At that time the Tribunal was informed that unprofessional conduct as alleged in the complaint was admitted by the practitioner. The matter then proceeded by way of submissions as to penalty. The practitioner had by that time already entered into discussions with the Board and agreement had been reached as to the terms of undertakings to be given by him containing conditions upon which he would be prepared to practise in the future. Submissions by both parties were completed on that day and the Tribunal indicated it would reserve its decision.
Subsequently the matter was brought on again for hearing on 4 November 2004 when the Tribunal of its own motion raised concerns about potential misrepresentation by the practitioner of his qualifications in patient communications which were not formally before them in the Complaint. This concern was the topic of a number of further hearings discussed hereafter in [70] – [80] of these reasons; it led to an agreed amendment of the complaint to add a further ground.
The matter came on for final hearing on 24 February 2005. Further submissions were made by both parties as to the added content of the amended complaint. After hearing those submissions, the Tribunal adjourned for a short period and returned to deliver its decision and reasons.
Reasons for decision
The reasons for decision of the Tribunal canvassed the previous proceedings before the Board, summarised the various allegations made in the complaint and then, in relation to the particular consideration as to orders which the Tribunal had power to make, stated:
The decision we have to make is what other penalty we should impose. As you know, our alternatives are to reprimand you or to fine you or just merely to allow you to practice with those conditions, or to suspend your registration or cancel your registration.
The Tribunal continued:
In coming to our decision we have in our view, two alternatives. On top of the conditions which have been set out and agreed upon, which will allow you to practice in the future, there should either be a cancellation of your registration or a suspension of your registration for a period of time. We cannot see that any of the other alternatives under the Act can apply here; these matters are far too serious.
It is the thoughts of the Tribunal that really, the most appropriate penalty, looking objectively at these matters, should be cancellation. However, after much consideration and much thought, we with a certain hesitation, because you have acknowledged your guilt in these matters, because this is the first time you have appeared before this Tribunal, although you have been before the Board before, can afford a certain leniency and opt for the alternative of suspension for a period of 12 months, in conjunction with the conditions as set out and agreed upon by the two parties.
The Tribunal then continued to make the following orders in its decision:
1.That the respondent not perform any exposure prone invasive procedures (the procedures) until the following has occurred:
(a)     That the respondent, that is Dr Papps, takes steps to ensure visiting privileges at an accredited day surgery facility at which to carry out the procedures. If the respondent is not able to secure visiting privileges at such facility, then he shall not conduct the procedures until he has had his consulting rooms in Melbourne Street (or such other rooms at which he may from time to time consult) accredited for the performance of the procedures by an organisation nominated by the Registrar of the Board (the Registrar) and thereafter receives the Board’s approval in writing to perform the procedures. The cost of any assessment for accreditation shall be borne by the respondent, that is Dr Papps.
(b)     That the respondent undergo assessment of his performance of surgical excisions. Such assessment shall be conducted by a medical practitioner nominated by the Registrar and undertaken within one month of the date of this order. The cost of such assessment is to be borne by the respondent.
2.That within 12 months of this order the respondent will provide the Registrar of the Board with evidence of satisfactory completion of practice management training course approved by the Registrar in accordance with the undertaking of the Board dated 14 June 2001.
3.     That until further order the respondent will:
(a)     undertake to ensure the safe and secure storage of all his medical reports.
(b)     keep a log of all requests received for the transfer of his medical records and/or preparation of reports. That log shall show:
- the date the request was received
-the name of the patient
-date the report was sent or transfer of records or summary thereof was effected
AND PROVIDE such log books for the inspection of the Registrar within five working days of the request for same by the Registrar.
(c)     ensure that all requests for medical records as referred to in paragraph 3(b) above are met within 14 days of receipt of the request and all requests for reports also referred to in paragraph 3(b) above are met within one month of receipt of the request or such other time as agreed in writing with the person making requests for a report.
These next conditions relate to proposed conditions relating to paragraph 10 of the amended complaint.
4.That the respondent admit to the Registrar or his delegate details of all qualifications other than MBBS and associate memberships that he intends to include on any professional record such as letters, reports or business cards, together with supporting documentation.
5.That the respondent not use the qualification or membership details referred to in paragraph 1 above, unless he has the express approval of the Registrar or his delegate.
6.That the respondent provide to the Registrar or his delegate, a copy of any professional record referred to in paragraph 1 above as may be requested from time to time.
The suspension of registration will commence from 28 March 2005. The suspension will be for 12 months and on the resumption of practice the conditions will apply until further order. The Tribunal further order costs to be taxed.
Appeal Grounds
Unrepresented practitioner-Grounds 2-5 and 9

In appeal grounds 2, 3, 4, 5 and 9 the practitioner alleges that as he was an unrepresented party at the Tribunal, there was a greater onus on the Tribunal to adequately inform him of his rights and forewarn him of potential suspension. Specifically the contentions were:
2.   The Tribunal failed to inform the unrepresented practitioner in clear and unequivocal terms that it was contemplating cancellation or suspension of the practitioner’s registration, despite there being no submission by the Board to that effect.
3. The Tribunal failed to alert the unrepresented practitioner to its view that only cancellation or suspension of registration would be an appropriate penalty and failed to invite the practitioner to direct his submissions specifically towards these potential disciplinary Orders.
4. The Tribunal failed to adequately assist the unrepresented practitioner in the presentation of appropriate and comprehensive submissions to the Tribunal relevant to the range of disciplinary orders that it was contemplating.
5. The Tribunal did not invite or encourage the practitioner to place mitigating material before it relevant to the specific orders it was contemplating and consequently failed to conduct the hearing according to the principles of equity, good conscience and the substantial merits of the case.
9.     In relation to the Amended Complaint tendered on 24 February 2005, the Tribunal failed to adequately inform the unrepresented practitioner that:
(a)    he did not have to agree to the amendment;
(b)   he could seek legal advice about the "amendments", particularly given the unrepresented practitioner's expressed concern about the cumulative effects of the amendments;
(c)    he could contest those matters separately, should he wish.
The practitioner appeals on the grounds that as he was an unrepresented party before the Tribunal and as the order suspending practice as a medical practitioner was as severe a disciplinary sanction as a sentence in a criminal proceeding, the Tribunal should have warned the practitioner of the potential penalty, the range of penalty options, the desirability of putting mitigating material before the Tribunal and of the desirability of seeking legal representation.
This argument is couched in terms that the Tribunal should alert an unrepresented party that it is contemplating suspension or cancellation of the right to practice and, further, that this should be done in clear and unequivocal terms. A number of cases were cited in support of this proposition.[2]
[2] Parker v DPP (NSW) (1992) 28 NSWLR 282; R v Baverstock [1993] 2 All ER 32; Kenchington v Shepherd (SA) (Unreported, Supreme Court of South Australia, Olsson J, Judgment No 2806, 17 January 1990).
Each of these cases is specifically concerned with criminal sentencing.
Further, the practitioner alleges that the Tribunal should have assisted the practitioner by informing him about what evidence or matters may assist in mitigating the imposition of suspension and that the failure of the Tribunal to assist the practitioner as an unrepresented party amounted to a failure to conduct the hearing according to the principles of equity, good conscience and the substantial merits of the case as required by s 62 (3) of the Act.
In my view the fundamental underlying basis of this submission is misconceived in its articulation, in that it relies upon criminal precedent as to penalty, when a complaint and any subsequent order made pursuant to the Act, are matters of administrative law. There is a significant difference between, on the one hand, an unrepresented criminal defendant who is likely to be given a severe sentence, and in particular a custodial sentence, and, on the other hand a medical practitioner facing a medical practitioners’ board about matters of unprofessional conduct. This is particularly so when the matters in question are within the professional knowledge of the practitioner, and are being determined by an administrative body which includes a member of the medical profession. The analogy is not directly apposite.
It is true, however, that an unrepresented practitioner appearing before such a body may need more assistance than would be required to be given to a practitioner who was represented by a lawyer. This is because such a practitioner, even though he or she may have a full comprehension of the technical matters the subject of a complaint, may not necessarily be aware of the range of orders which the Act permits a Tribunal to impose, nor appreciate the factors to which a Tribunal may have regard in deciding the orders to be made. It is one thing to understand the subject matter of the charges and the potential orders which may be imposed in an intellectual sense; it is another to be able to assess what material may be appropriate to be placed before the Tribunal in order to demonstrate mitigating circumstances relevant to such orders. In this sense I agree, in part, with the submissions which were being made by counsel for the practitioner.
Having said that, it is apparent that the attention of the practitioner was directed in a number of ways during the hearing before the Tribunal to the potential range of orders which could be made under s 58(2) of the Act. These included not merely fines but also a suspension or indeed cancellation of the registration of the practitioner. The practitioner also referred to these options, and in particular to suspension or cancellation of registration, when placing additional submissions before the Tribunal. The question is whether this was enough.
Counsel for the Board in its submissions before the Tribunal on 11 October 2004 drew attention to the seriousness of the conduct of the practitioner[3] and, in particular, referred to the case of the Medical Board of South Australia v Dr Humen.[4] In that case the Tribunal indicated in relation to a breach of undertaking that if the same thing happened again, the practitioner would be "at risk of losing his rights to practice". Further, counsel for the Board specifically referred to s 58 of the Act and stated:
A number of orders are available for the tribunal’s consideration under s.58 and they include suspension or cancellation. In addition to considering those options, there is also the possibility of conditions being imposed either after the suspension or cancellation if you see fit, or without cancellation or suspension to impose these conditions or certain conditions upon a medical practitioner as happened in Zacharia’s case.
For that purpose I produce to the tribunal copies of conditions which I understand Dr Papps is prepared to enter into should the tribunal see fit. I will give the tribunal a moment to read those.[5]
[3] Transcript of Proceedings, 11 October 2004, 28-29.
[4]Medical Board of South Australia v Dr Humen (Unreported Case, Medical Practitioners Conduct Board, Judgment No 305 of 2002).
[5]Transcript of Proceedings 11 October 2004, 30.
Further, Dr Last, an experienced medical practitioner and member of the Tribunal, specifically requested counsel for the Board to indicate what “penalty” the Board was seeking[6]. The following exchange took place.
[6]Transcript of Proceedings, 11 October 2004, 31-32.
MEMBER LAST: I may have missed a point. I’m well aware of the penalties that are available to us under the Act; have you actually yet made a submission as to what penalty we shall impose? Not condition on practice but penalty?
MR ILLINGWORTH:          Insofar as I’m instructed to say this: that a simple reprimand is not appropriate; that it is a matter appropriate for the board to consider a suspension at the very least of Dr Papps’ registration, that if you were of a mind to suspend, that conditions of this type would be appropriate when he returned to practise, but if you were not of a mind to suspend, then these conditions will be an appropriate condition placed upon his licence in any event, so that we can operate on a rehabilitative frame of mind I suppose.
I’m not instructed to put specifically to the tribunal what sentence is appropriate. That’s a matter for the tribunal.
MEMBER LAST:                That was really the point I was making. It has been the practice in this tribunal for the medical board’s counsel to make specific recommendations on this matter and you are not making such a recommendation.
MR ILLINGWORTH:          I am not making such a recommendation. I leave that to the discretion of the board.
HIS HONOUR:                  You say whatever we do, that the conditions should be added either after or straightaway.
MR ILLINGWORTH:          That’s the board’s decision.[7]
[7]Transcript of Proceedings 11 October 2004, 32.
The above exchange highlights a number of matters. There was a reference to the potential for the Board to order suspension or cancellation of the registration in addition to making orders in the terms of the undertakings given. In addition, the Board was not making any firm submission as to whether the Tribunal should impose any other order in addition to conditions of practice agreed to by the practitioner. On this latter aspect another argument was put on behalf of the practitioner, namely that the failure of the Board to indicate its view of the appropriate penalty led the practitioner into a false sense of security that neither suspension nor deregistration would be likely. I consider this to be highly unlikely. There is no deposition made by the practitioner to support this proposition and the later written submission made by the practitioner referred to hereafter, suggests the contrary.
A further important exchange took place after the practitioner had almost completed all his submissions. The presiding member, Judge David indicated the following:
HIS HONOUR:           Speaking for myself, do you want to put some submissions as to what we should do?
DR PAPPS:When we had the meeting with Mr Illingworth the other day with regard to the question with the surgery and the rooms and that nature, I offered the most succinct and easiest way to expedite all that was to offer to conduct any further surgery at a day surgery, or some such other place.
HIS HONOUR:           If I could short cut this and help you? We’ve got those suggested conditions by Mr Illingworth.
DR PAPPS:                Yes, I’ve agreed to those.
HIS HONOUR: You’ve got, under the Act, the alternatives open to us. Do you want to put to us what you say we should do? This is your chance to put your point of view as to what we should do.
DR PAPPS:I’ve agreed to the conditions and I think they were arrived at in a joint way. There was no talk of any other imposition.
HIS HONOUR:           No, but we make the decision.
DR PAPPS:                Yes, that was pointed out to me, yes.
HIS HONOUR:           What do you want to put to us about that? Mr Illingworth’s not said to us we should go one way or the other as far as suspension or cancellation, he’s left that to us. Do you want to put something to us? Do you want to put a submission to us about that?
DR PAPPS:                I don’t want to be hung, if that’s [sic] you’re asking me?
HIS HONOUR:           No, we won’t do that.
DR PAPPS:As I indicated, I’ve been penalised, I believe, because I didn’t realise how a partial registration or a conditional licence is just so damming it virtually shuts all the doors and they’ve certainly been shut. And it came to the point where I was virtually ready to agree to anything, just so that we could – or that I could get this thing moving, albeit with some other conditions, but at least the ball would start to roll again, but certainly it’s been going backwards to the last – since June 2001. I’m not getting any younger, but I have lost that period of time if I was to proceed with the occupational medicine training, but I’m really at the mercy of the tribunal, as far as anything else goes.[8]
[8] Transcript of Proceedings 11 October 2004, 67-68.
This exchange clearly indicates that the Tribunal was seeking submissions from the practitioner specifically on the issue of suspension or cancellation. It is also clear that the Tribunal was contemplating one or other of those orders to be made in addition to the conditions agreed to by the practitioner.
The next chronological reference was a written undated response given to the Tribunal by the practitioner following the exchange of 7 October 2004, to clarify his response "I don't want to be hung". The practitioner expressly stated that this phrase was "meant to express [his] desire not to be deregistered or suspended. That would be the penultimate penalty". He then set out a number of reasons why neither deregistration nor suspension should be imposed and concluded by saying "for the above reasons I would submit to the Tribunal my request that in its considerations, further to any other restrictions or conditions, it does not suspend or cancel my licence”.
The next submission was made by counsel for the practitioner in order to further illustrate alleged error by the Tribunal in failing to appropriately warn the practitioner on the last day of hearing, namely 24 February 2005. The Tribunal concluded at 10.20 am on that day indicating to the parties that it wished to “finish with this matter this morning” and then retired. Forty minutes later, at 11.00 am, the Tribunal delivered its decisions and imposed the orders which are the subject of this appeal. It was submitted for the practitioner that it is clear from the reasons given by the Tribunal that, at the time of their retirement, they were contemplating a deregistration or suspension and at that point, it should have given the practitioner an opportunity to specifically address that issue.
On 24 February 2004, the following discussion occurred on the topic of penalties.
HIS HONOUR: Just remind us again, over and above those conditions, what are the alternatives we have under the Act?
MR ILLINGWORTH: The alternatives are to either fine, cancellation of licence, suspension of licence, or to impose conditions upon Dr Papps’ continued practice. I draw the tribunal’s attention I think to s.58 and in particular s.58 (3) (a) 1-5 and (b).
HIS HONOUR:           So there is reprimand, fine, conditions without anything else, suspension, cancellation?
MR ILLINGWORTH:    Yes.
HIS HONOUR:           Cancellation is the worst.
MR ILLINGWORTH:    Cancellation is the worst.
HIS HONOUR:           Suspension is not as bad as cancellation?
MR ILLINGWORTH:    No.
HIS HONOUR:           Where does it say if you say suspend you can have the conditions on top of that, or cancel and you can have the conditions?
MR ILLINGWORTH:    Our position was when we placed those conditions before the tribunal, it is for the tribunal to decide whether or not suspension or cancellation was appropriate.
HIS HONOUR:           Yes.
MR ILLINGWORTH:    Although my client’s view is that was a matter appropriate for the tribunal’s consideration. If the tribunal were of the view that one or other was appropriate then upon returning to practice, my client urges the tribunal to place the conditions. If the tribunal was not of a mind to cancel or suspend, then at the very least, to urge the tribunal to place conditions on the right to practice.
On the basis of all of these references, I am satisfied that the practitioner could have been under no illusion about the significant risk of the Tribunal deciding to suspend or cancel his licence, and I am satisfied that he in fact directed his submissions as to why that should not be done. Further, this is in the context where the practitioner had previously been the subject of an earlier Board hearing in which a very firm indication was given to him of the seriousness of his conduct. I therefore reject these grounds of appeal.
It was also argued by counsel for the practitioner that the Tribunal should have assisted the unrepresented practitioner by advising him as to what evidence was required to be provided by him in mitigation against the imposition of such severe sanctions. Reference was made to s 62(3) of the Act which required that the Tribunal follow principles of equity, good conscience and the substantial merits of the case. This submission was linked to a further contention by counsel for the practitioner, to the effect that if the practitioner had been either represented by a lawyer or appropriately alerted by the Tribunal, he could have adduced evidence on the effect that any suspension would have on him because of his own personal circumstances.
Counsel for the practitioner sought to tender at the hearing of the appeal an affidavit of the practitioner setting out his personal domestic and financial circumstances. This was objected to by counsel for the respondent, who indicated that the content of the affidavit material was irrelevant as the penalty to be imposed pursuant to the Act was not dependent upon the personal circumstances of the practitioner, but instead was a matter of the protection of the public.
In order to address the combination of these two arguments I will first address whether or not personal circumstances of a practitioner have any relevance to orders being imposed under the Act and, if so, what relevance is to be given to such circumstances.
Personal circumstances and s 58(2) orders
When considering professional disciplinary tribunals such as a medical tribunal or a legal practitioners tribunal and the context of the legislation under which they operate, the cases strongly indicate that, when considering orders to be made in disciplinary matters, the predominant concern is the protection of the public and related concerns such as general or personal deterrence. It has been stated on a number of occasions that the effect on a particular practitioner is not a matter which offsets the overall essential need to protect the public.
An important starting point in considering the case law is the High Court decision in New South Wales Bar Association v Evatt[9] in which the Court indicated:
The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v NSW Bar Assn (1960) 104 CLR 186, at p201, p202. The respondent’s failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser.
[9] (1968) 117 CLR 177, 183 – 184.
In this State there have been a number of decisions which have considered these principles. In the 1997 case of Markey v Medical Board of South Australia,[10] Duggan J referred to a number of interstate authorities which confirmed that the role of a tribunal and the purpose of medical practitioners legislation was to protect the public, not punish the practitioner and that the Tribunal’s powers are "entirely protective".[11] In particular his Honour endorsed the principles set out in an earlier decision of the Medical Practitioners Tribunal which stated:
It is apparent that similar considerations apply to the Medical Practitioners Act 1983 Act: Medical Board of South Australia v Newcombe (Judgment No D3303 delivered 1 September 1995).
In determining the appropriate penalty so as to ensure, to the greatest extent possible, that other medical practitioners are not likely to act as the respondent did it is necessary to give great weight to the notion of general deterrence but, in our opinion, in this matter, it is of overwhelming significance that medical practitioners at large be made aware that behaviour of the type undertaken by the respondent, irrespective of it obtaining only a small sum of money within a relatively confined time frame in circumstances of some personal stress, will attract a significant sanction from this Tribunal.[12]
[10] (1997) 191 LSJS 213.
[11] Ibid 214 citing New South Wales Bar Association v Evatt (1969) 117 CLR 177.
[12] Ibid 214.

His Honour concluded:
The tribunal quite rightly emphasised the seriousness of the conduct before it. However, it appears from the reasons for judgment that it regarded the matter of general deterrence as being of overwhelming significance and that, in its view, the practitioner’s actions automatically attracted the most severe sanction. In my view the matter called for a closer examination of all the circumstances in order to determine whether an indefinite suspension was the only way in which the public and the authorities could receive adequate protection. I think that there were circumstances which might well be said to take the matter out of the usual run of cases in which this type of conduct is alleged. No single circumstance justifies this approach, but in my opinion there is a combination of factors which render indefinite suspension inappropriate.[13]
[13] Ibid 215.
This authority therefore confirms that matters of general deterrence are relevant to public protection, as are matters of personal deterrence, but that the former is of “overwhelming significance”.
A subsequent case before the Full Bench of this Court also discussed the principles. In Rajagopalan v Medical Board of South Australia[14] the Full Court referred to an unreported case of Richter v Walton[15] in which the NSW Court of Appeal stated:
Necessarily, the exercise of a disciplinary power in respect of a professional person may have a consequence that seems punitive and that has results for the person that are burdensome and hard. But that is not their purpose in the eye of the law. In a case such as the present, punishment can be left to the application (if any) of the criminal law, to the consequences for the practitioner’s practice, to any civil action that may be taken and to the shame of the publicity that has attended these proceedings. Punishment is not the purpose of the proceedings. That purpose remains, from first to last… the protection of the public who deal with medical practitioners upon the assumption of their integrity and ethical behaviour, including those who deal with this practitioner.[16]
[14] (Unreported, Supreme Court of South Australia, Full Court, Cox, Mullighan and Williams JJ, Judgment No S6667, 5 May 1998).
[15] (Unreported, Supreme Court of New South Wales, Court of Appeal, Kirby P, Priestly JA, O’Keefe AJA, Judgment No CA 40309 of 1993, 15 July 1993).
[16] Ibid 7.
Finally on this point Doyle CJ in the Full Supreme Court in the later case of Craig v Medical Board of South Australia[17], discussed the purpose of disciplinary proceedings in a professional disciplinary Tribunal, saying:
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.[18]
[17] (2001) 79 SASR 545.
[18] Ibid at [44]-[45].
The Chief Justice continued:
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 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 so 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 practise, 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.[19]
[19] Ibid at [46] – [48].
The cases strongly emphasise that the overwhelming concern is public protection and public interest, to which matters of general and personal deterrence are relevant. The cases also indicate that personal circumstances are not relevant, as they might be in criminal law as providing mitigating circumstances leading to the reduction in the severity of sentence, because the overriding purpose here is not punishment.
It can be envisaged within the principles indicated by these authorities that personal circumstances may have some relevance to the seriousness of the unprofessional conduct and or the appropriate orders to be made having regard to personal and general deterrence in the protection of the public. For example, personal circumstances of practitioners may vary such that a fine imposed on one practitioner who is a high earner may not be a sufficiently salutary lesson to deter either that practitioner or others from similar offending, whereas, the same fine may be an appropriate deterrence for another practitioner who is in strained financial circumstances. Also personal circumstances such as temporary illness and a relatively untarnished history of professional conduct, save for limited number of lapses of professional conduct in the overall period of practice, may suggest that the orders required to deter such a practitioner from any further similar conduct need not be as severe as those which should be imposed on another practitioner. On the other hand, where the misconduct of the practitioner may have involved a greater portion of practice, a more general order may be appropriate. In theory, such personal circumstances may be relevant not only to any fine but may also be relevant as to the period of any suspension of licence to practice.
In summary, because the situations of practitioners and of conduct can be enormously varied, I consider that personal circumstances of a practitioner may in some cases have some relevance to the determination of the appropriate penalty. This is so, having regard to the seriousness of the offence and the level of protection required to be given to the public, including protection given by personal and general deterrence. However, because protection of the public is the overwhelming purpose of the penalty, sometimes the seriousness of the conduct will be such that a severe penalty is appropriate, regardless of the personal effect of that penalty on a particular practitioner. Hence the relevance of the observations made by the Court in Richter, that the effects of the disciplinary exercise may be even “burdensome and hard”.
In this case, counsel for the practitioner seeks to put further information about what I understand to be predominantly the consequences for the practitioner of his suspension from practice. As I consider it is theoretically possible that personal circumstances may be relevant, I have read the affidavit of the practitioner which I accepted de bene esse.
The affidavit of personal circumstances
The affidavit of the practitioner, over 178 paragraphs, cover matters which include:
·his education,
·his medical qualifications,
·his employment history commencing from the age of 10,
·his personal family circumstances and early professional practice,
·his ownership of a rest home for philanthropic purposes which led to two declarations of bankruptcy,
·his current financial position including the servicing of loans associated with the rest home for which his extended family are guarantors,
·the educational problems associated with his five children and their future schooling,
·his current working as a locum usually in a team with other medical practitioners,
·factual matters and explanations concerning the allegations of professional misconduct,
·steps he has taken to address deficiencies in practice.
Most of this material is irrelevant if the issue is whether suspension or cancellation is the appropriate order. It may have significant relevance if the appropriate penalty is a fine. The matters which may have had relevance concerning the penalty are the last three items, namely his current employment, factual matters and steps taken to address deficiencies in practice. As to the steps taken and his current employment, many of these appear to have been taken in hindsight after the practitioner received the penalty by the Tribunal and after he received the benefit of specific legal advice. His working as a locum is not how he portrayed his situation when he was before the Board on 11 October 2004, when Member Wilson asked:
MEMBER WILSON: What is your eventual aim as to what sort of practice you will aim for? I mean, if all goes well, what sort of practice do you intend to do because it seems to me you’ve hopped here and hopped there and hopped all over the place.
DR PAPPS:Yes, I have. My main aim is to participate in the two areas of being an independent medical examiner. I don’t really – I think my time of 13 odd years as a GP and doing all that hard work, I don’t really want to be involved in management – complex management, I think I’m too old for that, but I think I’ve got enough experience to be a good independent examiner. So, that’s one area and then the other area of skin surgery is I’ve always had an interest in procedural work and I consider myself reasonably good at that and these are the two areas.
I’d planned to do a fellowship in the university of Otago for musculoskeletal medicine and then, in that scenario, I’ll be recognised, I dare say, by WorkCover because they are recognised in Victoria as specialists in the own right. So, my ultimate aim is to become a musculoskeletal physician and a pain physician in association with completion of the pain physician in association with completion of the pain masters at the end of next year. I’ve gone halfway through it so far. So, they are two areas.[20]
[20] Transcript of Proceedings, 11 October 2004, 68.
It may well be that the practitioner would have benefited from the assistance of a lawyer acting on his behalf, but the mere fact that other matters may have been put to the Tribunal as that consequence, does not mean that the Tribunal was in error in not having the material before them. I will consider the particular relevance, if any, of the information in the affidavit when discussing whether the penalty in all of the circumstances was manifestly excessive. There is nothing contained in the affidavit which suggests to me that the Tribunal was in error in not having that information before it, nor is it a consequence of any deficiency on its part.
Ground 9
This ground complains about the circumstances in which, after the completion of the hearing on the complaint, the Tribunal raised certain additional matters which were then added as amendments to the original complaint on 24 February 2005. This was on the last date of hearing and only minutes before the Tribunal handed down its decision and sentence. It is asserted that the Tribunal failed to adequately inform the unrepresented practitioner that he did not have to agree to the amendment, that he could seek legal advice about the amendments, and that he could contest those matters separately, should he so wish.
The relevant chronology of events is that, after the hearing was completed on 11 October 2004 and the Tribunal reserved its decision, the matter was brought on again for hearing on 4 November 2004. On that occasion the Tribunal of its own motion raised concerns about potential misrepresentation by the practitioner of his qualifications in patient communications. This matter was not formally before them in the complaint. This topic was discussed at a further hearing on 11 November 2004 when counsel for the Board indicated that he was instructed to make an amendment to its complaint to incorporate this matter.
The following exchange took place in the presence of the practitioner:
HIS HONOUR:                  If you successfully amend the complaint to bring it all, that re-opens the hearing again, doesn’t it?
MR ILLINGWORTH:          Yes, it does, unless of course Dr Papps agrees with the amendment.
HIS HONOUR:                  He might agree with the amendment but he may not plead guilty to it.
MR ILLINGWORTH:          He might want to. Quite so. I wanted to tell the tribunal that so that we’re absolutely clear and Dr Papps can give some consideration as to how he would like to proceed. My client would prefer all of these matters to be finished and a clean slate for the board, the tribunal and Dr Papps.[21]
[21] Transcript of Proceedings, 11 November 2004, 11.
Counsel for the Board continued:
… I’m happy to get something to Dr Papps, say, within the week, for him to give consideration and take some instructions or seek legal advice if he wants. If the tribunal is happy to come back in the second week of December I’m happy to accommodate the tribunal at any time –
HIS HONOUR:                  We could give a decision on what is before us now, putting all that aside, but you don’t want us to do that, you want to seek leave to amend the complaint and deal with everything.
MR ILLINGWORTH:          Yes.
HIS HONOUR:                  What do you have to say about that, Dr Papps? I don’t want to go into the rights or wrongs of this at the moment, but just the procedure.
DR PAPPS:I understand, your Honour. I would like to finish the matter as soon as possible, too, so I have no objection to that at all.[22]
[22] Transcript of Proceedings, 11 November 2004, 12.
It can be seen from this transcript that the practitioner was put on notice that the application to amend was something to which he could agree if he so chose. It was clear that he could plead not guilty and that he could seek legal advice. He indicated that he understood and that he would like to finish the matter as soon as possible and had no objection to the amending of the complaint. These acknowledgements run counter to the submission which is put to me on his behalf in this appeal.
Also on that date, Dr Last indicated a number of matters upon which he sought information, namely a year by year curriculum vitae of the practitioner, as well as information about the practitioner’s special expertise in skin cancer. The hearing on that date finished with the presiding member indicating that he would adjourn to see “where the matter was going” and whether the matter could be resolved or not and what the alternatives were.
The hearing resumed again on 15 November 2004, after the practitioner had been provided with a copy of the amended complaint. The practitioner did not attend on the day and it was further adjourned on 18 November 2004.
On the resumption of hearing on 18 November 2004, after counsel for the Board indicated that they were awaiting an indication from the practitioner as to his attitude to the application by the Board to amend the complaint, the presiding member then asked the practitioner about his attitude after expressing to him:
we don't want to come in behind your back on these amendments and penalise you for something when you've [not] been confronted with these. You might want to contest it or put your point of view [or] whatever.[23]
[23] Transcript of Proceedings, 18 November 2004, 4.
The practitioner then indicated that he wanted to expedite things and not waste the Tribunal’s time and then added:
DR PAPPS:I don’t want to be in a position where I become adversarial but what I thought probably ought to happen would be what happened with the current situation that’s before your Honour; and that is to have an opportunity to discuss the issue with the board because I would have thought the normal process would have been for them to inform me of the problem and then give me an opportunity to discuss it with them and include Mr Illingworth as well, as we did with the current matter and then perhaps in a collective way approach the problem so that I’m not unnecessarily arguing against it or anything like that. Because there was certainly no, from my point of view, intent to misrepresent or anything like that, so I want to make sure the board understands that before they charge off with another complaint.
I take everything seriously and if this amendment is likely to tip the balance and result in a much sterner punishment than I think – it depends on what the possibilities are.
HIS HONOUR:           We don’t know of course.
DR PAPPS:That’s the issue.
HIS HONOUR:           Obviously there is a chance that might happen. You’ve got to have a chance to address the matter. We do not want to go off behind your back, we want you to have a chance to contest it.
MR ILLINGWORTH:    I can tell your Honour that the board is confirming in a formal way the amendments this afternoon. My instructions are to proceed with the application. I’m more than happy to sit down with Dr Papps and discuss it, I’m sure the registrar will be happy to do that too, he was last time.
HIS HONOUR:           Why don’t we do that and then you can come back and report the outcome to me. I assume on the next occasion we will not need the board members.
MR ILLINGWORTH:    No. I’m happy to put the arrangements in place with Dr Papps and the registrar next week.[24]
[24] Ibid 6.
Again, it is quite clear that the practitioner was being given every opportunity to consider his position, knowing that he had a number of possibilities.
The matter came on for hearing again on 15 December 2004. At that point counsel for the Board indicated that the Board had met with the practitioner and that agreement had been reached that there be an amendment to the complaint. An indication was given that the practitioner would consent to the Tribunal receiving copies of the complaint in its amended form. Counsel for the Board continued that there were admissions made by the practitioner contained in certain documentation and that the practitioner would be making further submissions. The practitioner was present during this communication. The matter was adjourned and relevantly resumed on 24 February 2005.
On that day, counsel for the Board indicated the proposed amendments which it sought to make and indicated to the Tribunal that these amendments had been discussed with the practitioner and that further undertakings had been negotiated to include these extra matters. These undertakings were then placed before the Tribunal and they are the ones which appear in the reasons for judgment set out hereunder. On that same day, 24 February 2005, the following discussion took place.
HIS HONOUR:           Dr Papps, you needn’t go over what you have gone over before, but in relation to the additional stuff, that is the additional parts of the complaint and this letter; do you want to say anything to us about that?
DR PAPPS:I would only be re-emphasising what I have already provided to the tribunal.
HIS HONOUR:           So have you got anything further to provide?
DR PAPPS:Nothing further.
MR ILLINGWORTH:    Just in fairness to Dr Papps, I understand he had some further written submissions in relation to para 10 of the complaint.
DR PAPPS:That’s right.
HIS HONOUR:           Can you hand those up?
DR PAPPS:Yes.
HIS HONOUR:           You have no quarrel with these explanations?
MR ILLINGWORTH:    No.[25]
[25] Transcript of Proceedings, 24 February 2005, 19-20.

Having regard to the above communications there is, in my view, no foundation for the submission that the practitioner was not properly informed that he had an option not to agree to the amendment, that he could have sought legal advice and that he could contest the content. On the contrary, it is apparent that the practitioner was consenting to the amendment in order to have the matter finished. He admitted his guilt and agreed to the additional matters to be the subject of his undertakings. This ground is rejected.
Principles of disciplinary sanctions: Grounds 7 and 8
Two arguments were raised by the practitioner under these Grounds. First, it is contended that the Tribunal had failed to articulate, and direct itself as to, the principles relevant to the imposition of disciplinary sanctions. Second, the Tribunal did not indicate what weight it was giving to the practitioner’s written and oral submissions, namely:
In your written and verbal submissions, you have explained to us the reasons for your admitted breaches, and we have borne those explanations in mind.
As to the second argument, I do have concerns that the Tribunal did not reflect in any way on the matters which were raised by the practitioner in his submissions. In particular, the practitioner challenged the accuracy of some factual material before the Tribunal. This challenge should have been addressed even if only to find that the difference was of no particular relevance in the overall circumstances. It is sometimes very easy when a practitioner pleads guilty to unprofessional conduct for the Tribunal to think that the plea absolves it of the need to set out the factual basis for the unprofessional conduct and of the need to make findings as to any circumstances which may be relevant to the seriousness of the offence, or to issues of general or particular deterrence and the protection of public.
In this case the practitioner gave written submissions that appear at Appeal Book 203-213:
·With regard to the breaches of undertakings, the practitioner gives either excuses or explanations, expresses uncertainty of obligation, and suggests possible accidental misplacement and physical problems with compliance.
·In relation to the advertising allegation, the practitioner provides some explanation and also indicates that, as he had ceased doing medico-legal work, the advertisement was non-functional.
·In respect to the charge regarding treating his brother-in-law, the practitioner offers a detailed explanation of the treatment which he provided which appears to be aimed as showing that it was appropriate treatment. He also points out that Mr M had been a patient of his prior to his meeting his sister. There are also references to alleged incorrect statements made against the practitioner.
·Regarding the allegation concerning Ms K, the practitioner asserts that she was not a reliable witness. The practitioner also provided an explanation for allegations made which were due to the number of “satellite surgeries” from which he was operating which had deficiencies of staff and facilities. Further, he stated that he had remedied the situation by ceasing to practice from those rooms.
·In relation to the allegation by Ms W, the practitioner indicated that the patient did not inform him of an allergy to Elasotoplast and that this was not a likely explanation for the rash. Further he contested some statements and in particular asserted that he had made efforts to contact her and had also apologised to her and offered to compensate her.
·With regard to Mr B, the practitioner said, amongst other matters, that he had expressed the view that a case conference was not appropriate before proper investigation and diagnosis had taken place.
·As to the allegation of Ms B, the practitioner indicates that this was a sister of Mr B and that he had expressed concern about a suitability of a case conference which was too soon.
The above material with minor differences in wording, was also read out to the Tribunal,[26] with very few questions from the Tribunal members.
[26] Transcript of Proceedings, 24 February 2005.
In my opinion, some of these matters should have been the subject of further inquiry by the Tribunal, or at least adverted to in the reasons for decision as to how, if at all, the explanations given by the practitioner, including his contesting of certain facts, affected the Tribunal’s view as to the seriousness of his offending and the nature of the orders which should be made.
The material which the practitioner placed before the Tribunal, in my view, demonstrated that he was a practitioner who was essentially caring of his patients but appeared to be overstretched, disorganised and unperturbed as to whether his conduct complied with the undertakings that he had previously given. The matters raised by him in his submissions certainly provided a context in each case, but did not really alter the essential allegations of unprofessional conduct made against him.
As to the first argument under these grounds of appeal, I have already discussed the major principles in relation to the role of the Tribunal and the purpose underlying the imposition of the order which may be made under the Act. It is unnecessary to repeat that analysis. The overwhelming concern is to protect the public in relation to the conduct complained of by a practitioner. This protection may take the form of general and personal deterrence.
Another aspect of the role of the Tribunal is that its function is to inquire into complaints of unprofessional conduct;[27] in this way it differs from the role of the Board.[28]
[27] Medical Practitioners Act 1983 s 58.
[28] T v Medical Board of South Australia [1999] SASC 402 [17]-[18].
It was submitted by counsel for the practitioner that the reasons for decision given by the Tribunal gave every appearance of being reasons for sentence, and that there was no reference at all to the principle of protection of the public or in what way the penalty which was imposed on the practitioner was apposite for the purpose of protecting the public, having regard to the nature and circumstances of the practitioner’s unprofessional conduct.
It is unfortunate that there is no such reference to this fundamental principle and no expressed articulation by the Tribunal as to why its orders would be the most appropriate option in the public interest and for public protection. In particular, the Tribunal does not explain why the penalty had to be a suspension for the maximum period under the Act and why public protection could not have been achieved by other means such as combination of penalties including a shorter period of suspension. It is perhaps relevant here that a major cause of the practitioner’s unprofessional conduct appeared to arise from his being a sole practitioner and endeavouring to practice from multiple sites without appropriate staff.
The appropriate approach to sentencing was discussed in the case of Craig. The penalty under consideration in that case was a suspension of a right to practice for six months followed by a period of supervision upon return to practice for a period not exceeding six months. The penalty related to a complaint of unprofessional conduct of a psychiatrist who had formed a personal relationship with a female patient in her early twenties who was suffering from anorexia nervosa. Chief Justice Doyle referred to the fact that:
The Tribunal did not explain why it made this order. It should have done so. Because it did not do so, it is necessary to deduce from its reasons the basis for the order for suspension.[29]
[29] Craig v Medical Board of South Australia (2001) 79 SASR 545, [50].
The reasoning of the Chief Justice is detailed. It canvasses matters which were adverted to by the Tribunal in that case, which included the length of the practitioner’s practice with no repetition of the conduct, a change of practice, an acknowledgement of wrong doing and that the breach was not deliberate. The Chief Justice continued:
I consider that in principle the order can be supported on this basis. The misconduct was serious. It was the sort of conduct which could shake the confidence of the public in the profession of psychiatry if it were not dealt with firmly. The Court should also recognise that the Tribunal includes members of the medical profession, and they are entitled to use their own knowledge of what is required to maintain public confidence in their profession.
But even if the order made is supportable in point of principle, was it excessive, in the sense of being substantially more than was required to achieve the relevant purpose?
This is the part of the case that I have found most difficult. Once again, this Court must bear in mind that it should interfere only if the penalty is excessive. The Tribunal is required to make its own assessment of what is required by way of a disciplinary order. This Court intervenes only to correct an error….
I am not satisfied that it was. I consider that Dr Craig’s conduct was conduct of a kind that might well shake the public confidence in the profession of psychiatry, were it not dealt with firmly. It was conduct which called for an emphatic indication of the Tribunal’s disapproval, and of the profession’s disapproval. Although Dr Craig’s acknowledgement of wrongdoing was accepted as genuine, and there was no need to deter him from repeating his conduct, it was appropriate for the Tribunal to emphasise to Dr Craig the seriousness of his conduct.
The order for supervision requires separation consideration. The Tribunal ordered that Dr Craig:
“… be subject to supervision as to the nature of his practice so as to exclude patients with the condition of anorexia nervosa and further, as to the manner of the making and content of his clinical notes. This supervision is to be undertaken by the Board or its nominee for a period of time in its discretion, but not to exceed one year. Reasonable costs of such supervision are to be met by [Dr Craig].”
The Tribunal should fix the period for which Dr Craig is to be supervised, rather than leaving that to the Board.[30]
[30]Ibid at [58]-[66].
Although the Tribunal did not specifically refer to the fundamental principle of protection of the public, it must be noted that this is a very well known principle and one with which I am sure all the members of the Tribunal would be familiar. The failure to refer to it would not of itself demonstrate error especially given the experience of the members of the Tribunal. So far as failure to give sufficient reasons for the period of the suspension is concerned, I think that this can best be considered in the context of determining whether the period of suspension for 12 months was manifestly excessive. In my opinion, failure to give reasons for the period of suspension alone would not in the circumstances of this case, lead to a setting aside of the order.
Ground 10
This is a discrete ground which alleges that the Tribunal placed undue reliance upon the report of Dr Wesley, knowing that this was disputed by the practitioner. This ground further alleges that the Tribunal failed to advise the practitioner that he could call Dr Wesley or call his own expert.
Counsel for the practitioner relies upon two passages in the reasons for decision in support of its argument:
Before turning to that question, there is a matter which the Tribunal is further concerned about. As you have carried on practice in the area of skin cancer and the removal of suspicious lesions, it concerns the Tribunal as to what training you have received n the diagnosis of skin disorders, and in the performance of relevant surgical procedures. We are concerned about the details of such training, if any.
Although the specialist report which we have referred to earlier is not relied upon for the purposes of our decision, nevertheless there are concerns in that report about your diagnostic accuracy and medical knowledge. It concerns the Tribunal as to what steps have been taken in relation to that aspect of your practice. As that specialist report mentioned earlier, has raised doubts about those, although it is not a factor in our present decision, we also raise that matter to the attention of the Board. We point out, however, that has nothing to do with our present decision, because if there is a lack of training or expertise in that field which should preclude you from further practice, that is not the basis of the present complaint.[31]
[31] Reasons for Decision, 24 February 2005, 5-6.
I consider there is nothing in this Ground of Appeal, as the Tribunal makes it clear that it is not relying on the report for the purposes of its decision and there is no basis upon which to suggest otherwise. I therefore reject this argument.
Grounds 1 and 6
It was contended that the overall sanction of the maximum suspension of 12 months, in combination with the imposition of the undertaking, was, in the circumstances, manifestly excessive. The principles considered when determining whether a disciplinary sanction is manifestly excessive are generally the same as those cited in cases which consider whether penalties or an award of damages are manifestly excessive.[32] The issue is whether the sanction imposed was imposed as a result of the Tribunal reliance on some wrong principle or error of fact, or as a result of reliance on irrelevant considerations or as a result of failure to consider relevant considerations, or the sanction is obviously unreasonable or unjust. The assertion by the practitioner that the disciplinary sanction imposed by the Tribunal is manifestly excessive can only rest on the view that the sanction exceeded the maximum or was so large that no court could have imposed that sanction without having committed an error.
[32] Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; Moran v McMahon (1985) 3 NSWLR 700; Mobilio v Balliotis [1998] 3 VR 833 at 837-842; Markarian v The Queen (2005) 79 ALJR 1048; Dinsdale v R (2000) 202 CLR 321.
There are a number of helpful observations made by the Full Court in Craig which can be applied in this case. It is important to bear in mind that I should only interfere if the penalty is excessive and only to correct an error. In order to consider whether the penalty is excessive, I should endeavour to adduce from the reasons the basis for the order of suspension.
The reasoning of the Tribunal is summarised in the last three paragraphs of the decision before the orders are stated, as follows:
Putting that aside, the Board considers these matters are serious breaches. They are serious breaches because of the clear warnings that you were given by the Board in 2001 which have been already pointed out to you.
In coming to our decision we have in our view, two alternatives. On top of the conditions which have been set out and agreed upon, which will allow you to practice in the future, there should either be a cancellation of your registration or a suspension of your registration for a period of time. We cannot see that any of the other alternatives under the Act can apply here; these matters are far too serious.
It is the thoughts of the Tribunal that really, the most appropriate penalty, looking objectively at these matters, should be cancellation. However, after much consideration and much thought, we with a certain hesitation, because you have acknowledged your guilt in these matters, because this is the first time you have appeared before this Tribunal, although you have been before the Board before, can afford a certain leniency and opt for the alternative of suspension for a period of 12 months, in conjunction with the conditions as set out and agreed upon by the two parties.
Therefore, so far as the Tribunal has expressed its reasons, it appears to focus its attention on the seriousness of the breaches and to find that the other alternatives under the Act are not appropriate. The Tribunal indicates that “objectively” the most appropriate penalty should be cancellation, but that taking into account the early acknowledgement of guilt and that this was the first time that the practitioner had been before the Tribunal, a “certain leniency” could be given. This explains why, in their view, it was inappropriate to order simply a fine or reprimand or the agreed conditions for future practice. In their view it appears to be a decision between two orders namely cancellation, which would operate for an indeterminate period of time, or suspension, which could be for a period up to a maximum of 12 months, in addition to the agreed conditions for future practice.
There is no expressed view as to why the penalty should be a suspension of the maximum period and not, for example, a shorter period of suspension combined with other orders such as a fine and restricted conditions. There is no discussion of why this penalty would give appropriate protection to the public including general and specific deterrence.
It was specifically argued by counsel for the practitioner that the Tribunal appeared to have treated the undertaking being given by the practitioner as not being significant. Counsel illustrated this by referring to the following sentence:
The decision we have to make is what other penalty we should impose. As you know, our alternatives are to reprimand you or to fine you or just merely to allow you to practice with those conditions, or to suspend your registration or cancel your registration.[33] (emphasis added)
[33] Reasons For Decision, 24 February 2005, 5.
In my view the emphasised expression is not to be interpreted in the manner suggested by counsel for the practitioner and in the context should be read as meaning “or simply allow you to practice with those conditions with no other penalty”. Read in that way it is an accurate description of the decision which the Tribunal had to make. The issue before it was whether or not it should accept the undertakings alone as sufficient penalty or whether it should choose additional sanctions in addition to the undertaking.
In this case it could not be said that it was not within the discretion of the Tribunal to order the maximum suspension. The issue becomes whether the ordering of the maximum was manifestly excessive in the circumstances.
In relation to the seriousness of the unprofessional conduct, I have had regard to the fact that the nature of the conduct consisted not merely of matters which may be regarded as administrative deficiencies of the practitioner in his practice which amounted to breaches of previous undertakings, but there were also other matters which involved exposing patients to unsafe medical practices.
Even taking the administrative matters alone, the significance of these matters is that they are not simply management deficiencies; they adversely impacted on the welfare of the practitioner’s patients. The patients who were the subject of the counts were forced to try and contact the practitioner on many occasions to obtain information which they needed. This undoubtedly caused them anxiety and concern. The extent of the breaches demonstrates the disdainful attitude of the practitioner to the undertakings which he had given and to the effect that his breaches of undertakings, as well as other unprofessional conduct, had on his patients.
The previous undertakings, which were breached, had been given only a couple of months before and they had been given along with the previous warning by the Tribunal. This is extremely serious unprofessional conduct.
Further, it is to be noted that the practitioner did not even comply with the requirements of the Audit Committee which was endeavouring to monitor his behaviour professionally. His failure to respond to their requirements is a very serious matter in its own right.
In my view those circumstances are such that they should be the subject of a very severe penalty as the practitioner does not seem to have got the message that his conduct is unacceptable and he has not, in any true sense, altered his behaviour. I take into account the submissions made by his counsel that following the commission of these acts of unprofessional conduct, the practitioner has in fact altered his practice. However this has been reactive to yet another series of complaints of unprofessional behaviour.

Of course any suspension of a person from medical practice can be expected to have a significant impact upon the welfare not only of the practitioner but also of his or her family. That is an anticipated consequence. Medical practitioners like other professionals in the community, will often have family to support, mortgages to pay and school fees to attend to. Further, the level of economic liability and the standard of living of a medical practitioner is likely to be high, which would exacerbate the effect of a suspension or de-registration. It is not necessary for the Tribunal to call for submissions on these personal matters for reasons which I have discussed earlier. Further, I do not consider that the material contained in the affidavit of the practitioner to which I have previously adverted, is such as should alter the orders in this case.
In all of the circumstances it does not appear to me to be manifestly excessive of the Tribunal to have imposed a period of suspension after rejecting an unlimited deregistration. That is not to say that it must necessarily have required the maximum suspension, but it could hardly be said that the maximum suspension was not appropriately warranted in the circumstances. Whilst opinions may vary, the suspension is not outside an appropriate scale nor is it greater than might reasonably be thought necessary to protect the public and, most importantly in this case, to act as specific and general deterrence to future unprofessional conduct. I do not consider this ground to have been made out.
Conclusion
For the reasons given above I find that the appeal should be dismissed and I so order.
ANNEXURE A - Undertakings
I, MICHAEL PAPPS of 215 Melbourne Street, North Adelaide in the State of South Australia, 5006, Medical Practitioner, HEREBY UNDERTAKE to the Medical Board of South Australia (the Board) in relation to my registration and practice of medicine in the said State:
1.I shall undergo a course of Practice Management training as approved by the Board.
2. I shall provide the Board with evidence of my satisfactory completion of the course.
3.I will ensure safe and secure storage for all my medical records.
4.I shall compile a list of all medical records held by me to be completed 3 months after these Undertakings are entered into. That list showing:
·The name of the patient
·The address of the patient
·
5.I shall write to each of the patients whose records I hold and was seen within 3 years of my ceasing practice at Semaphore and inform them of that fact (“I am” initialled) keeping a record of the correspondence.
6.I shall keep a logbook of all requests received for the transfer of medical records and/or reports. That log shall show:
·The date the request was received
·The name of the patient
·The date the report was sent or transfer of records or a summary of those records was effected
7.All requests for medical records as referred to in clause 6 shall be met within 14 days of receipt of the request and all requests for reports as referred to in clause 6 shall be met within 1 month of receipt of the request.
8.I shall comply with all requirements concerning the Workers Compensation and Rehabilitation Act, irrespective of whether my patient has legal representation.
9.I acknowledge that, whilst a reasonable fee may be charged for the preparation of reports and/or the preparation of a summary of or copying of medical records, the sending of such report, summary or copy of medical records will not unreasonably be withheld until that fee is paid.
10.I acknowledge that the Board may within 12 months after these Undertakings are entered into require an audit of my records at my expense regarding these matters at any time and I will co-operate with the Board to the fullest extent in this regard.
11.I acknowledge that these Undertakings are binding upon me and that a breach of any one or all of them may constitute unprofessional conduct and lead to my registration being withdrawn.

“unprofessional conduct” includes-
(a) improper or unethical conduct in relation to the practice of medicine; and
(b) incompetence or negligence in relation to the practice of medicine; and
(c) a contravention of or failure to comply with -
(i) a provision of this Act; or

(ii) a condition imposed by or under this Act in relation to the registration of a medical practitioner under this Act.